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[2010] ZALCJHB 51
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Eviroserv Waste Management (Pty) Ltd v Mosime NO and Others (JR644/07) [2010] ZALCJHB 51 (26 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO : JR 644/07
In
the matter between:
ENVIROSERV
WASTE MANAGEMENT (PTY) LTD
Applicant
and
KM
MOSIME
N.O. First
Respondent
NATIONAL
BARGAINING COUNCIL FOR
THE
ROAD FREIGHT INDUSTRY
Second
Respondent
JEFFREY
ZAKARIA MOGASE
Third
Respondent
JUDGMENT
BHOOLA
J:
Introduction
[1]
The applicant seeks an order reviewing and setting aside the
arbitration award (
"
the
award') of the first respondent (
"
the
arbitrator') on 23 January 2007, and substituting it with an order
declaring that the dismissal of the third respondent
was substantively and procedurally fair.
[2]
The application was opposed by the third respondent
.
The opposing affidavit was filed
approximately two weeks out of time and an application for
condonation was made. The application
for condonation was not opposed
by the applicant. In any event, I am satisfied that good cause has
been shown for the late filing
and that condonation should be
granted.
The
background facts
[3]
The applicant is a waste management company that mainly deals with
the disposal of hazardous and/or dangerous waste on behalf
of its
clients. Its activities are regulated and monitored by the
Department of Water Affairs and Forestry (“DWAF”)
under
environmental conservation legislation. Due to the nature of the
applicant’s business, it has strict rules and policies
in place
that regulate the conduct of its employees in regard to the safe
disposal of waste. This includes the rule that is in
issue, which
prohibits removal of waste material that is brought by clients onto
the applicant’s landfill sites under any
circumstances (“the
rule in issue”).
[4]
Third respondent was a supervisor at the applicant’s Rosslyn
landfill site (“the site”). He had 15 years’
service and a clean disciplinary record. Following an
incident at a company yearend function at the site on 18 December
2003, he was charged in February 2004 with misconduct.
Only the second charge is relevant to these proceedings and was as
follows:
Charge
2
"Possession
of organizational property without authorization in that you were
found in possession of wood that was admittedly
removed from the
workplace of Rosslyn Landfill site and loaded onto your vehicle on 18
December 2003.
ALTERNATIVELY
Non
- compliance with standing orders in that you removed wood disposed
of on the Rosslyn landfill site in contravention of
a
company standing order on 18 December
2003."
[5]
Following his dismissal on this charge, the third respondent referred
an unfair dismissal dispute to the second respondent.
The arbitrator
found that his dismissal was substantively and procedurally unfair
and ordered the applicant to reinstate him into
his former position
with back pay retrospective to 1 February 2006.
The
grounds of review – substantive fairness
A.
Failure to prove existence of rule prohibiting removal of waste
[6]
The arbitrator, in coming to the conclusion that the applicant did
not have a rule or policy on the removal of waste material
from a
landfill site and that the third respondent was unaware of such rule,
if indeed it existed, failed to take account of the
evidence
presented to him in that regard. Alternatively the arbitrator failed
to assess or properly assess the probabilities of
the respective
versions placed before him. Such failure constitutes a reviewable
irregularity and renders the award unreasonable.
In support of this
ground of review the applicant relied on the following submissions:
(a)
The arbitrator blatantly ignored the evidence of the third respondent
to the effect that
he was at all material times aware of the rules
and policies of the applicant. Third respondent was employed as the
Site Supervisor
and was,
inter alia
responsible for monitoring
and management of “scavenger” activities (this is term
used to refer to non-employees who
scour the site for waste
material). The applicant’s witnesses testified that all
employees (which obviously included the
third respondent) were aware
of the rules, including the rule in issue, and third respondent had
to admit that he was familiar
with those rules. This was therefore a
common cause fact, and it is trite that common cause facts need not
be proven. Despite this,
the arbitrator proceeded to make a finding
that the third respondent was not aware of the rule in issue, if
indeed it had been
proven. The arbitrator committed a gross
irregularity in this regard. In addition, it is highly, or even
inherently, improbable
that a person in the position held by the
third respondent, who is responsible for the enforcement of rules on
the site, and with
his years of service, would not be aware of the
rules.
(b)
In considering the scavengers on the site as a relevant factor in
determining whether the
rule in issue existed, the arbitrator took
account of irrelevant factors and failed to take account of the
evidence,
inter alia
that scavengers are not its employees and
the applicant had no right of supervision or control over their
activities but merely
tolerated them to avoid reprisals. The
scavengers are permitted on site at the discretion of the Site
Supervisor. The applicant’s
witnesses testified as to the
problems experienced with scavengers and also provided a plausible
explanation for the applicant’s
failure to act against them.
(c)
The arbitrator made much of the fact that the minutes of the meeting
of 11 June 2001
(“the minutes”), more specifically
paragraph 6 thereof, cautioned employees against theft of material
from the site.
However, the applicant’s testimony sought to
establish that the third respondent had disobeyed an instruction not
to remove
waste property, and the charge on which he was dismissed
related to
unauthorised
possession and contravention of company
rules. The said paragraph 6 was as follows:
"DISCIPLINARY
ACTION AGAINST EMPLOYEES WHO REMOVE MATERIAL FROM SITE. THE COMPANY
VIEWS THE REMOVAL OF ANY MATERIAL FROM SITE
AS THEFT AND THEFT IN THE
COMPANY IS VIEWED IN A VERY SERIOUS LIGHT.
IF
ANY PERSON OR PERSONS IS/ARE FOUND GUlLTY OF THEFT THEY WILL BE
SUMMARILY DISMISSED AND CRIMINAL CHARGES MAY ALSO BE LAID AGAINST
WHOEVER IS RESPONSIBLE.
From
the said paragraph it is clear that the removal of any material from
a site is regarded as a serious disciplinary offence tantamount
to
theft. The fact that the third respondent was not charged with or
found guilty of theft was not conclusive of the issue.
B.
The finding that Third respondent was dismissed for insubordination
[7]
The arbitrator required the applicant to prove the charge of
insubordination i.e. that the misconduct for which the third
respondent
had been dismissed arose out of his refusal to obey a
lawful and reasonable instruction (not to remove the wood from the
landfill
site). He found that the applicant would have discharged the
burden if it had been established on a balance of probabilities that
the instruction had been given, and that it was wilfully,
deliberately and seriously disobeyed. The arbitrator then discussed
the factors to be taken into account in investigating a charge of
insubordination. In doing so, he did not accept that the instruction
had been issued by Johan Carstens (“Carstens), the Depot
Manager and the third respondent’s direct report, and found
that even if it had been issued, it had not been clear, unambiguous
and unequivocal. In this regard the arbitrator relied on the
evidence
that Carstens left without making sure that his instruction was
carried out; that he did not notify the security guard
at the gate to
stop the third respondent from leaving with the wood; and that he
failed to confront the third respondent when he
saw his bakkie loaded
with wood at the garage. The arbitrator also formed the opinion that
it was possible that the third respondent
was acting under the
mistaken belief that he had obtained permission, despite his evidence
that he was relying on express permission
from Carstens. In so doing,
he did not assess the probabilities on the evidence presented to him.
His failure to do so constitutes
a reviewable irregularity and
renders the award unreasonable. In this regard both Carstens and
George Saasa (“Saasa”),
a co-employee, who were called as
witnesses for the applicant, testified that the third respondent had
been given a clear instruction
not to remove the wood from the site
and to offload the wood from his bakkie. Carstens testified that he
had no reason to believe
that the third respondent would blatantly
ignore his instruction and accordingly had no reason to issue further
instructions to
the security guards. This also explains why Carstens
left without making sure that his instructions were carried out. This
was
however, at most a neutral factor and could not provide the
arbitrator with a basis for rejecting his version on this issue, or
for refusing to accept that the instruction was clear, unambiguous
and unequivocal.
[8]
The arbitrator had no basis for rejecting the evidence of Carstens
and Saasa on the probabilities. It is evident that he failed
to
evaluate their evidence. They had no motive to fabricate evidence
against the third respondent and his failure to adhere to
the
instruction could only be regarded as
wilful
and deliberate. Third respondent's accusations of racism against
Carstens and his averment that there was a full scale conspiracy
against him (from everyone including the chair of the disciplinary
enquiry, and all but one of his co-employees), should have been
rejected with the utmost contempt. He had moreover testified in the
arbitration that he worked with Carstens without problems and
that he
had a “
very good relationship
”
with him up until his dismissal.
[9]
Third respondent had not been charged with insubordination. The
arbitrator appears to have accepted that the chairperson of
the
disciplinary enquiry did not dismiss him for insubordination, and
that he was found guilty on the charge of unauthorised possession
of
company property or contravention of a company standing order or
policy. The applicant led evidence on the instruction issued
by
Carstens merely in order to counter the third respondent's defence
that he had permission. By evaluating the evidence against
the
backdrop of a charge of insubordination the arbitrator misconstrued
the nature of the charge and thereby prevented a fair hearing
of the
issues. In this regard, the applicant submitted that it is trite that
insubordination has different elements compared to
·
a charge of unauthorised possession of
company property or contravention of a company standing order or
policy. The arbitrator's
flawed reasoning in this regard renders his
award unreasonable. However, even if it is accepted that the
applicant had to prove
a charge of insubordination, it was never the
third respondent’s evidence that he had acted under the
mistaken belief that
he had permission to remove the material, or
that the instruction was unreasonable, as reasoned by the arbitrator.
Third respondent’s
version at all times was that he had express
permission from Carstens.
[10]
The arbitrator's assessment on the appropriateness of the sanction of
dismissal was also undertaken against the backdrop of
a charge of
insubordination. If it is accepted that the third respondent was not
dismissed for insubordination it is evident that
the arbitrator
committed a gross irregularity in this regard.
[11]
In opposing this ground of review, the third respondent’s legal
representative made the following submissions:
(a)
The third respondent testified that he
had asked Carstens if he could take the wood home, and Carstens asked
him what he would use
it for. He replied that there was a funeral at
his home and it would be used as firewood. Carstens indicated that it
was in order.
The third respondent testified that if Carstens had not
given permission he would not have jeopardised his job for a couple
of
wooden pallets. He said that the wood was already in his bakkie
when Carstens left, and that Carstens had said nothing to him about
it and had wished him well over the Christmas holidays because he was
going on leave that day. He disputed Saasa’s testimony
that the
generator was not running (because its noise would have prevented the
conversation from being heard), and that he therefore
overheard
Carstens issuing the instruction. His evidence was that Saasa and the
other employees, being contractors rather than
permanent employees
like him, were afraid of Carstens and avoided being in his presence
so they were some distance away from them
during the time when
Carstens was supposed to have issued the instruction. They could not
have overheard the conversation or any
instruction being issued.
(b)
Mathew Havinga (“Havinga”),
a senior manager, gave contradictory evidence in that he confirmed
that under no circumstances
could material be removed from the
premises, but admitted he had given permission for some material
(i.e. steel cabinets and windows)
to be removed by the third
respondent and another employee. This raises issues of his
credibility and reliability, and his evidence
is “
flagrant,
frivolous and vexatious”.
(c)
The existence of the rule in issue was
not proven by way of documentary evidence regarding the license
conditions issued by DWAF
which the applicant claimed to be bound by.
The applicant relied in this regard only on the minutes, and it was
common cause that
the third respondent had not been present at that
meeting.
(d)
There was no proof of the applicant’s
allegation that it treated
all
removal of waste as serious misconduct and that it had acted
consistently against all employees who failed to comply with the
rules. No further evidence was led of the alleged previous dismissal
of 110 employees for theft, and the arbitrator had moreover
established that the rule was unreasonable.
(e)
Third respondent testified he was aware
of the rule prohibiting removal of materials from the site without
permission, and he had
therefore sought permission.
(f)
Third respondent stated that he had
never had any interaction prior to his disciplinary enquiry with Vuyo
Nduna (“Nduna”),
who allegedly conducted the training
sessions with employees about rules and policies.
(g)
Carstens took two months to charge the
third respondent because he wanted to get rid of him. His failure to
instruct the security
guards at the entrance to ensure that the third
respondent did not remove the wood from the premises implies that he
had indeed
given permission to remove the wood. The applicant
therefore failed to prove on a balance of probabilities that he had
no permission.
Grounds
of review - procedural fairness
A.
Refusal of representation
[12]
The arbitrator’s finding that the third respondent was not
afforded an opportunity to seek a representative during his
disciplinary and appeal hearings is reviewable. During cross
examination the third respondent admitted that he had never formally
requested his representative to attend the disciplinary hearing. It
is not also strange that the representative/s never presented
themselves before, during or after the disciplinary and appeal
hearings, nor was there any correspondence from the third
respondent's
trade union complaining about the applicant's alleged
conduct in refusing him representation. Both Havinga and Esmé
Gombault
(“Gombault”), the chairperson of the
disciplinary enquiry, testified that they questioned the third
respondent prior
to commencement of the enquiry to determine whether
he required representation, and he said that he would represent
himself.
The third respondent's right to representation was
also evident from the notice to attend the disciplinary enquiry,
which formed
part of the evidence before the arbitrator. The third
respondent moreover, conceded in cross examination that the right to
representation
was a right extended to all the applicant's employees,
and he could not explain why it would be refused in his case. It is
thus
more probable than not that he was afforded the right to
representation. Furthermore, even if the third respondent had been
refused
the opportunity to obtain a representative, he did not
succeed in showing that he had been prejudiced as a result. It was
submitted
that the arbitrator did not take any account,
alternatively
did not take proper account of these material aspects in finding that
the third respondent's dismissal was procedurally unfair.
Such
failure renders his award unreasonable.
B.
Allowing testimony in camera
[13]
The arbitrator did not provide any reason for rejecting Gombault's
evidence, and for accepting that she interviewed witnesses
in camera.
Gombault confirmed that she had interviewed the applicant’s
witnesses in camera, to verify their statements submitted
to the
enquiry, and that this had been done on the third respondent’s
suggestion and request because he feared they would
be intimidated by
Carstens. It is inherently improbable that she would have done so of
her own volition. It was submitted by the
applicant that she was a
credible witness and that due regard should have been given to her
evidence. In regard to the arbitrator’s
failure to provide
reasons for rejecting her evidence, it was submitted that it is trite
that absence of reasoning may lead to
the review of an award.
See: Vodacom Service Provider
Co
(Pty) Ltd v Phala NO & Others
(2007) 28 ILJ 1335 (LC) at par 20;
Greater Letaba Local Municipality v
Mankgabe NO & Others
(2008) 29
ILJ 1167 (LC) at par 20; and
Boxer
Superstores (Pty) Ltd v Zuma
&
Others
(2008)
29 ILJ 2680 (LAC).
[14]
Third respondent was moreover given a proper opportunity to respond
to allegations made against him by the witnesses who testified
in his
absence. He was also afforded the opportunity to hear their evidence
and to cross examine them during his appeal hearing.
He did not
appear to have been prejudiced as a result. Even if it is accepted
that the chairperson departed from the procedure
for conduct of a
fair disciplinary enquiry of her own accord, this cannot
per se
give rise to a finding of procedural unfairness, and was not
taken into account by the arbitrator. Any such defect would moreover
have been corrected on appeal.
[15]
The arbitrator also committed a gross irregularity in finding that
Gombault did not permit the third respondent to present
evidence in
mitigation, and that she failed to take mitigating factors into
account prior to concluding on the sanction. She presented
credible
and probable evidence to the effect that due consideration was indeed
given to sanction, and that she took account of
the third
respondent’s mitigating circumstances
(which
she would not have known of had the third respondent not testified to
this effect). Carstens also testified that the third
respondent was
presented with an opportunity to present evidence in mitigation and
that he had displayed much emotion during his
submissions about his
personal circumstances.
[16]
In opposing this ground of the review, the first respondent submitted
that the third respondent’s evidence established
that he had
been treated unfairly in his disciplinary enquiry and appeal, and
that the chairperson had been biased against him.
The
appropriate sanction
[17]
The applicant submitted that once it had been found that the
misconduct was indeed proven, dismissal was the appropriate sanction
under the circumstances. The third respondent's length of service is
outweighed by his position as Site Supervisor, and the serious
impact
of his misconduct on the trust relationship
.
[18]
The third respondent’s legal representative submitted that the
sanction of dismissal imposed by the disciplinary enquiry
chair was
inappropriate and harsh under the circumstances. In deciding whether
to dismiss or not the employer should, in addition
to the gravity of
the alleged misconduct have considered factors such as the
employee's circumstances, the nature of his
job, and the
circumstances of the infringement itself. In this case the employee
had over 15 years service and an unblemished disciplinary
record; he
is married with children; his employment was his only source of
income; he took care of his sick father; and his own
age and ailing
health should have indicated to the applicant that dismissal was not
an option. The applicant was therefore unreasonable
-
in
exercising its discretion to impose a sanction of dismissal. The
third respondent confirmed that the trust relationship had not
been
broken as he did not contravene company policy, and that the
continued working relationship had not been rendered intolerable.
[19]
In his testimony the third respondent appeared to admit at some point
that he had committed the offence but that the sanction
was too
harsh. He appeared to suggest that he should have received a final
warning, but after his legal representative interjected
he insisted
that he should not have been found guilty at all.
[20]
However, during his oral submissions the third respondent’s
legal representative stated that given the lapse of time
the third
respondent had no wish to be reinstated, but instead sought
compensation should this Court be inclined to confirm the
award. The
applicant submitted that this confirmed its submission that the
relationship between the parties had become intolerable,
particularly
given the accusations of racism leveled against the applicant in the
third respondent’s papers, and moreover
justified its
submission that the remedy of reinstatement ordered by the arbitrator
had been inappropriate in the circumstances.
The
applicable review standard
[21]
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)).
[22]
In considering the reasonable decision maker test as articulated
above, Sangoni AJA
stated as follows
in
Edcon Ltd v Pillemer NO
&
Others
(2008)
29 ILJ 614 (LAC) at par 21 :
“
If
the commissioner made a decision that a reasonable decision maker
could not reach, he/she would have acted unreasonably which
could
then result in interference with the award. This, in my view, boils
down to saying the decision of the commissioner is to
be reasonable.
To my understanding the dictum in Sidumo is not about shifting from
the ‘reasonable employer test’ in
favour of the so-called
reasonable employee test. Instead, meaningful strides are taken to
refocus attention on the supposed impartiality
of the commissioner as
the decision maker at the arbitration whose function it is to weigh
up all the relevant factors and circumstances
of each case in order
to come up with a reasonable decision. It is in fact the relevant
factors and the circumstances of each case,
objectively viewed, that
should inform the element of reasonableness or lack thereof”.
Analysis
and evaluation of the evidence and award
[23]
The arbitrator commenced his analysis of the evidence by correctly
stating that the employer bears the onus of proving that
the
dismissal of an employee was for a fair reason and was carried out
through a fair procedure under
section 188
of the
Labour Relations
Act, No. 66 of 1995
, and that the employer is required to discharge
this burden on a balance of probabilities. He then dealt with the
three key issues
that arose in the arbitration. Firstly, that the
applicant had rules in place which prohibited the removal of any
waste material
from site. Secondly, that the third respondent was
instructed not to remove from the premises the wood loaded onto his
bakkie,
which he failed to do, and thirdly that there was procedural
unfairness in the disciplinary enquiry in that the third respondent
opted to proceed without a representative and the applicant’s
witnesses testified in camera.
[24]
In considering whether the applicant had proven it had specific
policies and rules in place which prohibit the removal of any
waste
from its landfill sites, the arbitrator referred to the evidence of
Havinga, as well as that of Nduna about regular communication
to
staff in this regard. This does not establish, he finds, that the
third respondent “
was ever informed or notified of the rules
as outlined by Havinga”.
Furthermore, the only documentary
proof of the existence of such a policy was a “
badly typed
minute”
of a meeting of 11 June 2001, which cautions
employees against theft. The applicant failed to establish that the
third respondent
was at this meeting and there was no indication of
the meeting having discussed any rule prohibiting the removal of
waste material
from landfill sites. He accordingly found that the
existence of such a rule had not been established, and even if it
had, the applicant
had not succeeded in proving the charges against
the third respondent.
[25]
He then finds that the applicant’s witnesses testified that the
third respondent had been dismissed for disobeying a
lawful and
reasonable instruction, and that the chairperson of the disciplinary
enquiry had dismissed him for refusing to obey
a lawful instruction.
The chairperson also noted that the third respondent’s actions
constituted “
direct contravention of company policy”,
which the arbitrator found had not been established. He then
considered whether the applicant had succeeded in proving that
the
misconduct with which the third respondent had been charged arose
from his refusal to obey a reasonable and lawful instruction.
[26]
The arbitrator’s conclusion and findings were as follows:
“
(a)
The presiding officer did not apply her mind fully to all relevant
issues traversed in the testimony
before her, and thus did not
establish the existence of any reasonable basis for her findings and
sanction.
(b)
The employer has not established that the pertinent elements that
constitute an offence
of insubordination, for which a sanction of
dismissal is justified, exist in this case. In particular, it is not
established, on
a balance of probabilities, that the employee was
expressly prohibited from removing the wood. It is further not
established that,
if such prohibition was indeed given, the employee
deliberately and wilfully disobeyed that instruction. In this regard
I found
the testimony of the employee to be more probable than that
of the employer.
(c)
It is therefore my conclusion that the employer did not show, on a
balance of probabilities,
that the employee did in fact commit the
infraction insubordination, or that if he did, he did so wilfully,
with an unmistakable
intention to defy the authority of his manager.
As such, I find that the employee was not dismissed for a fair
reason.
(d)
The dismissal of the Applicant, Mr. Jeffery Mogase on the 5 April
2004 was not based on
fair reasons and was not carried out through a
fair procedure”.
[27]
In my view, it is apparent that the arbitrator failed to take account
of the relevant facts in reaching the conclusion that
the rule in
issue had not been proven, alternatively that the third respondent
was unaware of such a rule. Firstly, it was the
third respondent’s
own evidence that he had knowledge of
all
the applicant’s
rules and policies. Although he initially denied the existence of the
rule in issue, he conceded this in
cross examination. The following
was put to him: “
[y]ou know the policies that you cannot
remove stuff from site? You know that?”
and he replied
“
Yes, Sir”.
Thereafter it was put to him
that:”
[s]o that story about being in sessions and not
knowing the policy, that’s rubbish?”
To which he
replied “
I never said [I] didn’t know the policy”.
He also conceded that this was the first time in his history of
over 15 years’ employment with the applicant that permission
had been given to remove waste from the premises. On previous
occasions the security guards had only ever been given permission
to
utilise the waste wood for making fire on the premises.
[28]
Even if one were to ignore the third respondent’s concession,
the arbitrator’s finding that the company had failed
to prove
the existence of the rule in issue was a misdirection. In reaching
this conclusion the arbitrator relied exclusively on
the applicant’s
failure to produce anything other than the minutes of a meeting which
the third respondent had not attended.
In so doing, he failed to have
regard to the direct evidence of all the applicant’s witnesses
confirming the existence of
the rule in issue. There was accordingly
no basis for the finding that insufficient proof of the rule existed.
In addition, the
arbitrator’s finding that if the third
respondent did not have express permission, he acted in the mistaken
belief that he
had permission, is misguided. There is no evidentiary
basis for this conclusion as it was the third respondent’s
consistent
version that he relied on express permission.
[29]
In my view, the arbitrator failed to appreciate the difference
between removal of the applicant’s property with permission,
which was possible, and the absolute prohibition on the removal of
waste materials, i.e. the rule in issue.
Havinga
testified that he
was unaware of
any
instance where waste materials could be removed from site by
employees, and in such instances the applicant was consistent in
considering this to be serious misconduct for which dismissal was
justified, and it had done so by dismissing a large number of
employees previously. This was not disputed. The t
hird
respondent confirmed that he (and a co-employee) had received
permission from Havinga in the past to remove materials from
site.
This related to two incidents where property belonging to the
applicant was allowed to be removed (windows from a wooden
hut and a
cabinet). He could not dispute that such property had not been waste
brought onto the site by a client or third party.
He could
furthermore not dispute that the wood removed by him was brought onto
the site as waste, and he conceded that this was
the first time in
the history of his employment with the applicant that permission had
been given to remove wood from the premises.
It was thus not open to
the arbitrator to take the other incidents where employees were
allowed to remove property from the site
into account in the
evaluation of the substantive fairness of the third respondent's
dismissal for removing waste. He does allude
in his questioning of
the witness to this “
serious
technical distinction”
, but
appears to pay no further attention to it in reaching his conclusion.
The third respondent had moreover conceded in cross
examination that
the applicant could not do as it pleased with waste because it was
not its property but that of its clients.
[30]
The arbitrator was faced with a dispute of fact on the issue of
whether the third respondent had been given permission. The
third
respondent’s case was that he had express permission from
Carstens but the applicant’s witnesses disputed this.
In this
regard the arbitrator was required to have regard to the principles
applicable to resolving disputes of fact,
as
described in
Stellenbosc
h
Farmers
'
Winery Group Ltd & another v
Martell et Cie & others
2003 (1)
SA 11
(SCA), and which was held to be equally applicable to a
commissioner conducting an arbitration under the auspices of the
Commission
for Conciliation, Mediation and Arbitration (“CCMA”)
in
Vodacom Service Provider Co
(Pty) Ltd v Phala NO
&
Others
(2007)
28 1LJ 1335 (LC) at par [20] and
Lukhanji
Municipality v Nonxuba NO & Others
(2007)
28 ILJ 886 (LC) at par [28]. It was submitted by the applicant that
this is equally applicable to an arbitrator acting under
the auspices
of a bargaining council, as in
casu.
I agree. It is apposite to set out
the approach approved by Nienaber JA in
Stellenbosch
Farmers’ Winery (supra
at para
5
)
:
“
To
come to a conclusion on the disputed issues a court makes findings on
(a) the credibility of the various factual witnesses; (b)
their
reliability; and (c) the probabilities. As to (a) the court’s
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness’ candour and demeanour
in the witness box, (ii) his bias, latent and blatant,
(iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, (v) the
probability or
improbability of particular aspects of his version, (vi) the calibre
and cogency of his performance compared to
that of other witnesses
testifying about the same incident or events. As to (b), a witness’
reliability will depend, apart
from the factors mentioned under
(a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe
the event in question and (iii) the quality,
integrity and independence of his recall thereof. As to (c) this
necessitates an analysis
and evaluation of the probabilities and
improbabilities of each party’s version on each of the disputed
issues. In the light
of its assessment of (a), (b) and (c) the court
will then, as a final step, determine whether the party burdened with
the onus
of proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one, occurs when the court’s
credibility
findings compel it in one direction and evaluation of the
general probabilities in another. The more convincing the former, the
less convincing will be the latter. But when all factors are
equipoised probabilities prevail”.
[31]
In my view, the arbitrator did not make any findings that the
applicant’s witnesses were not satisfactory, and there
are no
reasons provided for his conclusion that the version of the third
respondent on the probabilities must be preferred. This
would
constitute a gross irregularity and denial of a fair trial on the
issues.
Had he applied the correct
approach to resolving disputes of fact, the arbitrator would have
taken account of the third respondent’s
denial that the
statements of the three witnesses testifying on behalf of the
applicant had been shown to him at the disciplinary
enquiry. He
alleged that he had seen them for the first time when his attorney
consulted with him prior to the arbitration. The
evidence of the
applicant’s witnesses was consistent from the time prior to the
disciplinary enquiry, when they presented
their written statements,
up until the arbitration. The third respondent however alleged that
they had, when he first showed them
the charge he was facing,
confirmed their support of his version, but that they were
subsequently influenced to change their versions
to support Carstens.
This contradicts his version that he had never seen their written
statements and that they had given evidence
in camera, in that if
this were the case he would not have known that they changed their
versions. The fact that he was unable
to explain this in cross
examination casts doubt on his credibility. His evidence was that
everyone was lying (all the applicant’s
witnesses including its
senior management), and this supported his notion of a wide scale
conspiracy to get rid of him. In
these circumstances the
arbitrator does not provide any indication of how he weighed the
probabilities and accepted the third respondent’s
version,
despite the contradictions in his evidence, and despite the dispute
of fact on the material issue of permission. This
would, in my view,
appear to imply that he failed to consider all the relevant material
facts, and would vitiate the reasonableness
of his decision.
[32]
Furthermore, once the arbitrator found that the removal of the wood
was authorised, and that there was no failure to comply
with a
standing rule or policy, it was not appropriate to consider whether
the applicant had proven the charge of insubordination.
Even though
this would not have affected the outcome, it would still appear to me
to arise from a failure to apply his mind to
the relevant facts.
[33]
It is unclear what factors were considered by the arbitrator in
accepting the third respondent’s version in respect of
procedural unfairness. Firstly, in regard to being denied
representation, Gombault’s evidence was clear and consistent,
while the third respondent’s version vacillated between
expecting his representative to arrive; not being able to reach him;
his representative having gone to the head office where enquiries
were usually held; and eventually conceding not having made formal
arrangements to be represented. None of this explains his failure to
bring it to the attention of the chairperson, or to request
a
postponement, which Gombault said she would have granted. Instead, he
blames her for being impatient and insisting on proceeding
with the
enquiry, which was moreover conducted in English without him having
the benefit of an interpreter. However, despite his
initial denial he
conceded in cross examination that he was fluent in English and would
not have been appointed Site Supervisor
had this not been the case.
His version contradicts Gombault’s on every point,
notwithstanding her written record of the
proceedings which she
relied on in the arbitration. It would appear to me to be highly
improbable that the General Manager of the
National Treatment and
Disposal Division, with 18 years’ experience and whose function
includes chairing enquiries and appeals
and investigating grievances
(and whose evidence was that she had conducted about 25 – 30
disciplinary hearings) would so
flagrantly flout every conceivable
natural justice right in the disciplinary enquiry. The applicant had
moreover taken seriously
the third respondent’s previous
objection to Havinga chairing the enquiry. It is improbable that the
applicant would accommodate
this request only to thereafter deviate
from every basic natural justice right in the enquiry.
[34]
Furthermore, in regard to his appeal, the third respondent’s
initial evidence that the appeal took less than ten minutes
and he
was simply informed of the outcome, was followed by a concession that
it took almost an hour. In any event, any defect that
may have
existed in the enquiry would in all likelihood have been cured on
appeal:
Semenya & others v CCMA & others
[2006] 6 BLLR
521
(LAC). This would apply equally to the third respondent’s
allegation that he was not given any opportunity to present evidence
in mitigation of sanction at the disciplinary enquiry. The arbitrator
failed to take into account that any procedural irregularities
in the
disciplinary enquiry were rectified on appeal, which would appear to
have been a full rehearing on the merits. He failed
moreover to
provide any reasons for rejecting the applicant’s evidence on
this issue, despite corroboration, and preferring
the third
respondent’s bald denial that he was afforded any element of
procedural fairness at every stage. In my view, the
probabilities in
this regard are glaringly obvious and the third respondent’s
version falls to be rejected. No reasons are
provided why the
arbitrator ruled otherwise.
[35]
It is clear that the arbitrator, save for the common cause facts
(i.e. the third respondent’s knowledge of all the rules,
including the rule in issue; and permission having been given by
Havinga for property of the applicant to be removed on two
occasions),
was faced with two conflicting versions. In
Masilela v
Leonard Dingler (Pty) Ltd (2004)
25
ILJ
544
(LC)
Francis J held (at para 29) that in such circumstances the
approach to be taken is as follows:
“
This
court is faced with two mutually destructive versions only one of
which is correct. In deciding which version to accept and
which one
to reject I am
obliged
to consider inter alia the issue on
a
balance of probabilities. The onus is
on the respondent to prove on
a
balance of probabilities that its
version is the truth. The onus is discharged if the respondent can
show by credible evidence that
its version is the more probable and
an acceptable version. The credibility of the witnesses and the
probability and improbability
of what they say should not be regarded
as
separate
enquiries to be considered piecemeal. They are part of
a
single investigation into the
acceptability or otherwise of the respondent's version, an
investigation where questions of demeanour
and impressions are
measured against the contents of a witness' evidence, where the
importance of any discrepancies or contradictions
is assessed and
where a
particular
story is tested against facts that cannot be disputed and against the
inherent probabilities,
so
that
at the end of the day one can say with conviction that one version is
more probable and should be accepted, and that therefore
the other
version is false and may be rejected with safety. In this regard see
Mabona & another v Minister of Law & Order
& Others
1988
(2) SA 654
(SE). "
[36]
Although it must be borne in mind that the arbitration award is an
administrative decision, and even if the arbitrator is not
bound by
the above approach, he is nevertheless required to provide reasons
for his conclusion on the general probabilities. This
he failed to
do.
In
casu
,
the arbitrator, in determining the probabilities as he did, accepted
the weight of every aspect of the third respondent’s
evidence,
including the conspiracy theory advanced by him to the effect that
his dismissal was effected as a result of lies and
racism. This
cannot by any stretch of the imagination be said to be a reasonable
decision. However, he went even further and misconstrued
the nature
of the misconduct and substituted his view of the misconduct as
constituting the charge of insubordination. The finding
that the
applicant fell short of proving this charge would then be obvious.
Accordingly, the only conclusion that
can be reached
is that the arbitrator
failed to apply his mind to all material factors, and
since
this is essential to a reasonable administrative decision, it would
render the award reviewable. His award therefore
stands
to be set aside on the grounds that it constitutes such a
misdirection and a gross irregularity in the proceedings that it
could not have been reached by a reasonable decision maker applying
his mind to the evidence.
[37]
It is evident from the record that the arbitrator also acted as
interpreter, but this did not form part of the review and is
accordingly not relevant.
[38]
In regard to costs, the applicant seeks an order for the payment of
costs. It submitted that instead of concentrating on the
merits of
the review, the third respondent deliberately sought to present the
applicant and its management in a bad light. His
opposing affidavit
is littered with serious unwarranted accusations of racism, bias,
untruthfulness and incompetence on the part
of the applicant. It was
submitted that this conduct should be considered by this Court in
exercising its discretion in regard
to whether to award costs.
The third respondent’s legal representative did not address me
on this issue. I have had
regard to these submissions and do not
consider a costs order to be in the interests of justice.
[39]
The parties were
ad idem
that substitution would be appropriate and that this Court was in as
good a position to determine the matter. Moreover given the
lapse of
time, it would not be appropriate to refer the matter back to the
CCMA for arbitration
de novo
.
[40]
In the circumstances I make the following order:
(1) The arbitration
award made by the first respondent under case number
D352/JHB/1147/2005A on 23 January 2007 is hereby
reviewed and set
aside.
(2) The arbitration
award is substituted by the following order :
“
The dismissal of
the third respondent was substantively and procedurally fair”.
(3) There is no
order as to costs.
_________________
Bhoola
J
Judge
of the Labour Court of South Africa
Date
of hearing: 16 February 2010
Date
of judgment: 26 March 2010
Appearance:
For
the Applicant: Adv B Roode instructed by Bester & Rhoodie
Attorneys
For
the Third Respondent: Baloyi Mafuyeka Phalatse Inc.