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[2010] ZALCJHB 28
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National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR1230/09) [2010] ZALCJHB 28 (26 October 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR1230/09
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS First
Applicant
MOSERI,
F
Second
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
RAFFEE,
MS N.O.
Second
Respondent
PELA PLANT (PTY)
LTD Third
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application to review and set aside an arbitration award
handed down
by the second respondent (the commissioner) after he had
found that the second applicant’s dismissal by the third
respondent
was both substantively and procedurally fair. The
commissioner’s finding that the dismissal was procedurally fair
is
not being challenged.
2.
The application was opposed by the third respondent.
The background
facts
3.
The second applicant was employed by the third respondent on 16
August 2007 effective
from 4 August 2006 as a truck driver. On
22 July 2008 he was issued with a notice to attend a disciplinary
enquiry.
He was charged with gross dishonesty in that he was
driving a company truck without the correct licence and unauthorised
absenteeism
for 18 and 21 July 2008 when he did not report to any
supervisor or manager. The disciplinary hearing took place on
25 July
2008. He was found guilty on both charges. The
chairperson recommended a sanction of summary dismissal on both
charges.
On 28 July 2008 he received a letter from the human
resources director informing him that he was dismissed on the charge
of gross
dishonesty but that it would be superfluous to impose a
sanction on the second charge. On 29 July 2008 he lodged an
appeal
against his dismissal. The appeal hearing took place on
1 August 2008. His appeal was dismissed on 5 August 2008.
4.
On 5 August the first applicant, the National Union of
Mineworkers (NUM)
on behalf of the second applicant (Moseri) referred
and unfair dismissal dispute to the first respondent, the Commission
for Conciliation,
Mediation and Arbitration (the CCMA) for
conciliation. The dispute remained unresolved after
conciliation and proceeded to
arbitration on 24 March 2009.
The arbitration
proceedings
5.
The third respondent called Kobus Jonker as its witness. He
testified that
he is the human resources officer. He also helps
the human resources director and helps with disciplinary hearings.
He is employed by Protech Kutele which is the holding company and the
third respondent is a subsidiary company. The third
respondent
employs about 370 employees and most of the employees are machine
operators and drivers. Moseri appeared at a
disciplinary
hearing. Jonker and a Ms Barwick did an audit in June 2008 on
the drivers to check if they had the correct licences.
They
picked up that Moseri did not have the correct licence. He has
a C1 licence but was driving a big truck. The truck
was
weighing 18 000 kg unloaded and 36 000kg when loaded. A person
with a C1 licence drives a truck or something of the weight
that is
equal or less than 16 000kg. He should have had a C licence and
not a C1. He could not with the C1 licence
drive the vehicle
that he was driving. This was serious and was fraud and he
could kill people. They found that he
told Phillip that he
could drive the truck in question on a public road. He admitted
this at the disciplinary hearing.
Moseri was charged with gross
dishonesty because he told two lies. Firstly, he lied to
Phillip by misrepresenting the fact
that he could drive the truck and
secondly, he lied about having a valid PDP. In terms of the
company rules he must notify
the employer immediately when either his
PDP or his licence expired for management to arrange for the renewal
thereof. His
PDP expired on 12 November 2006 and he should have
informed management about this. He had also signed a document
that he
would obey all the traffic laws. He must have a valid
licence in terms of the National Road Traffic Act. If this is
disregarded, people can die and the machines can get seriously
damaged causing major liability to the third respondent. In
August 2006 Moseri was earning R13 per hour. He lied to Phillip
and in December his salary was raised to R16 per hour being
an
approximately 19% increase. He lied to Phillip round about
November 2006 which is why his remuneration was increased.
As a
result of Moseri’s lies, the third respondent was prejudiced in
that not only did he get a better rate but it was exposed
to a higher
rate risk of someone dying or possible damage to the machines or
trucks. He received the increase because he
misrepresented to
Phillip that he could drive a bigger truck. Jonker said that he
was the complainant at the disciplinary
hearing which was chaired by
Johan Swart. At the disciplinary hearing Moseri admitted that
he is guilty of having driven
vehicles that he needs a code C licence
for since August 2006 with only a code C1 licence and that his PDP
had expired at the time
when he was confronted about it as a result
of an audit done by human resources. He admitted that he knew
that he did wrong
by doing so and not reporting this to the company
before they confronted him. Mr Zwane was not allowed to
represent Moseri
because he was from NUM which was not a recognised
trade union and Zwane was not an employee. He was allowed to
remain as
an observer but was disruptive and he was asked to leave
the premises. Moseri also said that if a person is hungry he
would
do anything and his rate is bigger if he drives a bigger
vehicle and he received R13 per hour. It was well known that if
he drives a bigger truck he would get a better salary. He was
grossly dishonest. The truck is worth close to R1,2 million.
Moseri appealed and Jonker was the complainant in the appeal hearing
which was chaired by Charmaine. He was asked
at the
appeal hearing if he told the respondent that he did not have the
right licence. He said he did not tell them but they were fully
aware that he has the
wrong licence. Jonker said that they were
unaware that he had the wrong licence. He had a criminal record
for reckless and
negligent driving and could not get a PDP.
Moseri committed serious misconduct and was seeking reinstatement.
He could
not have a valid PDP for five years in terms of the Act so
reinstatement would be impossible. They also discovered that he
had other serious misconduct as stated in the expert report and
reinstatement would be a big problem.
6.
During cross examination Jonker said that because the third
respondent grew,
they decided to do an audit to see if the drivers
had correct licences. This was his first audit. He does
not know
whether audits were done in the past. Phillip had
asked Moseri if he could drive a particular truck and he said that he
could.
He was the workshop manager. He could state
whether it was company practice to ask a person whether or not he
could drive
a truck. Moseri was employed PPK Labour Services
and a transfer took place. He was asked whether he was charged
for
the PDP and he said that it was part of the charge. They
discovered before he was dismissed that his PDP had expired.
The commissioner said that the PDP had expired in November 2006 and
this meant that he could not be on a public road and that by
looking
at the charges he could see that he was not charged with breaching
the employment contract. Moseri did not misrepresent
to him but
to Phillip. He denied that the third respondent was negligent
in giving its trucks to incompetent people and said
that Moseri
misrepresented himself. It was put to him that Moseri did not
misrepresent himself to the third respondent and
he repeated that he
did. It was put to him that in one of the documents it is
stated that he has a code 10 licence and he
said that he was not with
the company then.
7.
Phillip Themba Shibandekano (Phillip) was the third respondent’s
second
witness. He testified that he is employed by the third
respondent for the past 11 years. He allocates vehicles and
report back to Hardie Swanepoel because he must be aware of who
drives which truck. Moseri was charged with gross dishonesty
because he is guilty. Around October or November 2006 they had
a site in Potgietersrus. Moseri came to the workshop
in
Midrand. He asked him if he could drive down to Potgietersrus
and he answered that he could and that it was closer to
his family.
He was obviously going to drive on a public road from Midrand to
Potgietersrus and he did not say that his PDP
was also expiring.
He had no PDP and a licence and the truck that he was driving was a
10 cube. He was dishonest because
the contract states that he
must inform him when his PDP had expired. He knew and was told
that he had to report to him.
He was asked whether Moseri was
dishonest on purpose or it was a mistake. He said that it was
on purpose because if he told
them after two or three days, he would
have understood but he kept quiet for one and a half year. The
lie was that he said
that he could drive the vehicle to Potgietersrus
during October or November 2006. He was asked whether he said
that he could
drive the vehicle off road or on a public road.
He said that he could drive the vehicle on a public road and it was
all the
way to Potgietersrus. A person could not drive to
Potgietersrus off road. He drove to and from Potgietersrus on a
public
road without a licence for more than a year. He had
allocated the truck to him which he signed for during October or
November
2006. This was shortly before his wage increase.
He would not have given him the tipper truck if he had told him the
truth. He only had a C1 licence and he needed an EC1 or EC
licence and his PDP had expired in November 2006. It was
new
tipper truck which he had allocated to him and he signed for it.
He knew that he had a C1 licence and knew that his PDP
had expired in
November 2006. He misinformed him and it was his intention
because it continued for a whole year. He
was not honest and
lied to him. The benefit that he got was that he earned more
money and did not deserve that. He
was paid as a driver for a
10-ton truck but he was a minibus driver. He is guilty of the
charge of gross dishonesty and it
was like stealing. He could
not be reinstated since he had not been honest with the third
respondent. It would be difficult
to work with him. If
other employees did the same thing, people could be killed. It
is very important for safety sake
to have the correct licence and
there could be an injury and it could be very dangerous. When
he allocates a truck, the driver
must tell him about his licence
which he has in his pocket. Most of the drivers who do not
report that their PDP have expired
or who misrepresents about their
licences, get dismissed.
8.
During cross examination Phillip said that he employed Moseri and
discussed it
further with human resources. He was attending the
arbitration hearing because he had allocated the truck to Moseri
during
October/November 2006. He had asked him if he could
drive the truck. He was asked who had allocated the truck to
Moseri
in August 2006 and he said that Moseri was a spare driver and
he could have been allocated a truck by the site foreman if he had
a
truck before he gave him one. He knows Simon Lephoto. He
found him in the seat and he had allocated trucks in October/November
2006. He was asked what Lephoto did during August 2006.
He said that Lephoto checked Moseri to see if he could drive
the
truck. He did not rely on Lephoto. It was put to him that
Moseri was tested knowing that he had only a code 10
licence and was
asked if he knows Solly Msibi. He said that he did and that he
worked at human resources. He did not
know if Msibi hired
Moseri. The tipper that he allocated was a T96 which was a new
truck. He said that he was not coached
in answering and that he
was telling the truth. He did not know whether Simon tested
Moseri but he was tested in a tipper
truck but misrepresented his
licence. He was asked how he could say that he was guilty of
dishonesty when he did not testify
at the disciplinary hearing.
He said that he never had a licence and told him otherwise. He
agreed that he could drive
a tipper. He agreed that in 2006 or
2007 he gave him the T96 but he was tested by Jerry who did not give
him a report.
He said that he was initially working at the
workshop and then he allocated trucks. He initially showed them
the sites.
9.
The second applicant - Moseri - testified that he started working on
4 August
2006 and was employed as a truck driver. He was
earning R17 per hour which was about R4 500.00 per month. He
could
not find employment since his dismissal. He went to
Protech in Midrand because he heard a rumour that they were looking
for
drivers. They took him to Kempton Park where Simon Lephoto
tested him by taking him to the off road site. He was tested
in
a Mercedes Atego T52 which is a code 14 truck. After that, he
was taken to head office where they took his driver’s
licence
and identity document. He took out a contract and gave it to
the clerk to fill out. He had a code 10 licence
with a PDP.
Simon knew that he had only a code 10 licence. He at no stage
made a misrepresentation when they came to
check the truck and his
licence. They made a tag which stated that it was his truck.
He said that Phillip was lying
when he said that he could drive the
truck which meant that he had a licence. He said he never asked
him if he had a licence
but had asked him if he could go to
Potgietersrus and he said yes and that it was near his home.
Nothing was said about the
truck that he was going to drive there.
Whilst he was employed, he never damaged any of the trucks. He
has never seen
the minutes of the disciplinary hearing. He does
not agree with the contents of the minutes and said that some points
were
added. During the disciplinary hearing he complained about
the conduct of the chairperson because he was harsh with him.
He had called for union representation but the chairperson told Zwane
to sit there and shut up like a mouse. He was writing
all the
time and he did not tell him what he was writing. He did not
write down what he was saying. He did not give
him an
opportunity to call other witnesses and looked down on him because he
does not have any money and he has money.
10.
During cross examination he said that in the pre-arbitration minute
it is recorded that
he was denied representation and this related to
Zwane. It was put to him that Zwane was of an external
non-recognised union
and he could not represent him and was asked if
he agreed with it. He said no and that the third respondent had
lawyers and
he could not buy a lawyer. It was put to him that
he had said to Phillip that he could drive on a public road. He
disagreed
and said that he could go to Potgietersrus to work there
and knew very well the truck that he drove. It was put to him
that
he said that he allocated him a new truck and that he signed for
it. He said that he did not allocate a truck to him.
It
was put to him that he was saying on the one hand that he did
allocate the T96 truck and on the other hand that he did not and
that
he was contradicting himself. He said that he did
not allocate the truck at page 71 and it was given to
him by Simon
Lephoto at Silverstars. It was put to him that it was the first
time that he alleged this and Phillip had said
that he allocated him
the truck on page 71 and was adamant about it. He was asked if
he was saying that Phillip did not allocate
the T96 to him. He
said he did not allocate any truck to him. Phillip was lying
when he said so and he does not know
why he told lies. Simon
Lephoto had asked him to complete the form for the T96. It was
put to him that Phillip told
him to do so and this was not put to
Phillip. He said he did not know why it was not put to him.
He was asked if he
agreed that he was acting illegally when he drove
the truck at page 71 on a public road. He said that he was
wrong on the
law but in terms of the company, he was right. He
said that Isaac Manamela also drove without a code 14 licence.
He
was asked if he told anyone that he did not have the right licence
for the truck. He said he had told Solly Msibi and Jonker
and
they came and checked. They told him that he must get his PDP.
He was asked why this was not put to Jonker during
cross examination
and he said he did not know but Zwane knows that he told him many
times and he was told that the third respondent
knew. It was
put to him that he did not cross examine Jonker about this when he
testified and was asked what his response
was. He had no
answer. He denied that he ever said that he was guilty.
It was put to him that at the disciplinary
hearing he pleaded guilty
and this was the reason that no witnesses were called and that he did
not challenge the procedure.
He agreed that when he appealed he
did not complain about it. He was asked why at the appeal
hearing he did not mention that
his PDP was expiring. He said
that he told Jonker and Solly. He was asked who had to renew
his PDP and he said that
he had to. He had planned to renew his
PDP in April/May 2007. It was put to him that he did not tell
Jonker and Solly
about the PDP expiring and that he was testifying
about it for the first time and did not put it to Jonker during cross
examination.
He denied that. It was put to him that he
was grossly dishonest by not telling someone at the third respondent
and telling
Phillip something different because of his conduct by
driving without a licence and without a PDP for 1,5 years and that he
got
a higher rate because of this. He said no. He started
with R13 per hour which was the correct rate for a code 10 licence.
He was asked how he jumped from R13 to R16 per hour. He said
that he told Msibi who took him from R13 to 16. He was
asked if
Simon tested him to drive on the site only. He had no answer.
He agreed that Simon was not a traffic officer
and could not test him
to drive on a public road. It was put to him that he was
untruthful to Phillip and that he had admitted this in the
disciplinary
hearing but he was now trying to deny it. He
denied that. It was put to him that he did not tell Jonker or
Solly of
the expiry about his PDP and that he did not have a licence
and that he was being untruthful in his evidence. He denied
that.
It was put to him that he was being dishonest which goes
to his credibility and that he had been found guilty before in
numerous
court cases and was asked to look at his criminal record.
He said that if they persisted in bringing in his private life he
would see them in court. During re-examination he said that he
worked in Isando before he worked for Protech.
The abitration
award
11.
The commissioner issued an award dated 6 April 2009. He
recorded that the issue was
whether Moseri’s dismissal was
unfair both procedurally and substantively. Moseri was charged
with gross dishonesty
in that he was driving a company truck without
the correct licence. It was recorded in the
pre-arbitration minute that
the following was material on procedure
namely that he was denied legal representation at the disciplinary
hearing. He alleged
that the chairperson of the disciplinary
hearing conducted the hearing in a grossly unfair manner by his tone
and instruction during
the hearing which was intimidatory. On
substance he alluded that the fact that he drove a code 14 vehicle
with only a code
10 licence did not make him grossly dishonest or
dishonest
12.
The commissioner stated further that the third respondent relied on
the contract of employment
where the following was material at page
7:
“
12.1
The employee undertakes to immediately notify the employer during the
subsistence of this contract of:
*
Any charges in respect of dishonesty or violence that are being
brought
against such employee by the National Prosecuting Authority.
*
Endorsement of driver’s licence”.
13.
The commissioner said that under paragraph 14 of the contract of
employment the following
was relevant:
“
14.
The employee confirms that all documentation, information and
credentials presented to the employer
in support of the application
for employment are authentic and the employee agrees that in the
event of any of the above documentation,
information, credentials
subsequently proves to be false, this will be sufficient grounds for
termination of the employee’s
services.
15.
The employee shall within a reasonable period, notify the employer of
any change in his/her
status, such as address, marital status,
telephone number, qualification or any other relevant changes.”
14.
The commissioner said that it was common cause that the third
respondent’s motor vehicle’s
driver’s licence was a
C10 and not a required C14 for the trucks that he was driving.
It was further common cause that
his professional driving permit had
expired on 12 November 2006 without it being renewed. Moseri
commenced employment on
4 August 2006 as a truck driver earning R4
500.00 per month. He was dismissed on 28 July 2008 and has not
found employment
since. He claimed that on 4 August 2006 he
went to Protech Midrand as they were looking for drivers.
At the interview
he was taken to Kempton Park where Simon Lephoto
gave him a truck to test and to tip the soil. The truck used
was a Mercedes
T52. He presented to Lephoto a code 10 driver’s
licence. Lephoto took him to the head office where a contract
was signed and completed. Lephoto had not asked for anything
other than that. When he was asked to go to Mokopane,
he agreed
because it was near his home. The chairperson did not
allow him to be represented by his union. No
further evidence
was presented on procedure or any other deviation from fair
procedure.
15.
The commissioner said that it was common cause that Moseri drove
trucks at the third respondent’s
place of business which
required him to have a code 14 driver’s licence. He only
had a code 10 driver’s licence.
It was further common
cause that his professional driver’s permit had expired and
that he did not alert the third respondent
about this. The
commissioner said that on the question of procedure, documentary
evidence was presented and testimony was
led that there was nothing
untoward at the disciplinary hearing other that the question relating
to the relevance of the questions
being put. He was not legally
entitled to be represented by a union official.
16.
The commissioner said that the onus does not lie with an employer to
verify an employee’s
driver’s licence. The
presumption that because an employee could drive a motor vehicle with
the necessary licence,
lies in favour of the employee (that the said
employee) has such a licence. For the employee later to suggest
that at all
stages, the employer carried knowledge that he did not
have the requisite licence and the employer nonetheless “allowed”
the employee to continue driving such a motor vehicle was no
defence. The contract of employment clearly stipulates that
if
the expiry of a professional driver’s permit is pending, the
onus lie on the employee to renew it and not the employer.
Secondly, he could not find any evidence before him suggesting that
the third respondent carried knowledge that he did not have
the
necessary driver’s licence. For the second applicant it
was simple: he could have refused to drive the motor vehicle
where he
knew that he did not have the requisite driver’s licence.
No disciplinary hearing could have followed for
him refusing such an
instruction.
17.
The commissioner said that there was no evidence before him
indicating that there was any
procedural flaw as the disciplinary
hearing minutes and the testimony before him indicates that the
chairperson was neither biased
nor intimidatory. The second
applicant was entitled to be represented by a fellow employee in
terms of our law. He
found that dismissal was not unfair both
procedurally and substantively.
The grounds of
review
18.
It was contended on behalf of the applicants that the commissioner
had failed to apply his
mind to the issues before him, failed to
appreciate the inquiries that he was required to conduct and rendered
an award that was
unreasonable in relation to the evidence that was
before him.
Analysis of
evidence and arguments raised
19.
It is common cause that Moseri was employed by the third respondent
as a truck drover in
August 2006. At the time of job interview
he gave the third respondent a copy of his driver’s licence,
which was a
code 10. Moseri drove vehicles for the third
respondent which required a code 14 driver’s licence. On
22 July
2008 he was charged with two charges; gross dishonesty in
that he had been driving trucks for the third respondent without the
correct licence and unauthorised absenteeism. A hearing took
place on 25 July 2008. He was found guilty on both charges.
He was dismissed on the gross dishonesty charge and no sanction was
imposed for the unauthorised absenteeism.
20.
The arbitration proceedings focused entirely on the gross dishonesty
charge. No evidence
was led, or arguments submitted, in respect
of the charge relating to absenteeism. Notwithstanding the
above, the commissioner
found that there was no evidence before him
that the third respondent carried knowledge that Moseri did not have
the necessary
driver’s licence. It would appear to have
been on this basis that the commissioner found that Moseri had been
grossly
dishonest, rendering his dismissal substantively fair.
21.
It is trite that awards would be reviewable when the award is one
that a reasonable decision
maker could not reach. In assessing
whether the decision reached by the commissioner was reasonable or
not it must be borne
in mind that an employer must rely on the
reasons given for the dismissal at the time of the dismissal.
22.
The reason given by the third respondent for the dismissal of Moseri,
at the time of his
dismissal, was that he was grossly dishonest in
driving vehicles he was not qualified to drive. In order for the
commissioner to
reasonably find that the dismissal of Moseri was
substantively fair, the commissioner had to find that Moseri had
deceived the
third respondent about his qualifications. The
common cause facts established the opposite, right from the outset of
his
employment, Moseri had been entirely honest about his driver’s
qualifications. The commissioner had recorded this but
then
concluded that there was no evidence before him that the third
respondent was aware of the fact that Moseri only had a code
10
licence. In the absence of evidence that Moseri sought to
conceal his actual qualifications from the third respondent,
the
commissioner could not reasonably conclude that he had made himself
guilty of gross dishonesty. In the answering affidavit
it was
contended that Moseri’s dishonesty lay not in disclosing to his
supervisor, Phillip, that he only had a code 10 licence,
and that
this warranted the finding of gross dishonesty. The contention
does not survive any serious scrutiny. There
is no suggestion
that Phillip ever asked Moseri what his qualifications were and
received a dishonest answer. Phillip merely
asked Moseri if he
was capable of driving certain vehicles to which Moseri answered in
the affirmative. Moseri was not dismissed
for imprudent
behaviour that he should have refused to drive those vehicles but was
dismissed for gross dishonesty.
23.
The commissioner could not reasonably have concluded that Moseri was
guilty of an act of
gross dishonesty. The award stands to be
reviewed and set aside.
24.
There is no recorded transcript of the arbitration proceedings.
This Court cannot
deal with this matter based on the material before
it. An appropriate order would be to refer the dispute to the
CCMA for
a
de novo
hearing before another commissioner.
25.
There is no reason why costs should not follow the result.
26.
In the circumstances I make the following order:
26.1
The arbitration award dated 6 April 2009 under case number
GAJB23153/08 issued by the commissioner
is reviewed and set aside.
26.2
The dispute is referred to the CCMA for a
de
novo
hearing before another
commissioner other than the second respondent.
26.3
The third respondent is to pay the costs of the application.
________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: C ORR BY
CHEADLE THOMPSON AND HAYSOM INC
FOR
THIRD RESPONDENT
: P
BUIRSKY INSTRUCTED BY SALIJEE DU PLESSIS VAN DER MERWE INC
DATE
OF HEARING
: 9 JUNE
2010
DATE OF
JUDGMENT
: 26
OCTOBER 2010