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[2010] ZALCJHB 41
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Transzaniet CC t/a Ogies Kole Transport v Mataboge NO and Others (JR967/09) [2010] ZALCJHB 41 (22 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO JR 967/09
In
the matter between:
TRANSZANIET
CC t/a OGIES KOLE TRANSPORT
Applicant
and
KATE
MATABOGE N.O.
First
Respondent
NATIONAL
BARGAINING COUNCIL
FORT
HE ROAD FREIGHT INDUSTRY
Second
Respondent
PHILLIP
KHULUMANI MOTSWENI
Third
Respondent
JUDGMENT
COETZEE
AJ:
Introduction
1.
This is an application to review and set
aside an arbitration award in which the Commissioner held the
dismissal to be substantially
and procedurally unfair awarding Third
Respondent payment of six months remuneration as compensation.
Background
2.
The Applicant’s case is that the
decision reached by the Arbitrator is not one that a reasonable
decision maker could have
reached.
3.
The crux of the Applicant’s
contention is that the Arbitrator failed to consider material
evidence and incorrectly considered
the probabilities.
4.
The Employer (Applicant) called one witness
in the arbitration.
5.
The witness testified that the Company had
an agreement with its employees of which the Third Respondent (the
Employee) was one,
to work on certain Saturdays.
6.
The Employee worked for a period of 8 years
on Saturdays as he was obliged to do in terms of the oral agreement
with the Employer.
7.
From March 2008 he refused to work on
Saturdays.
8.
When confronted with his unauthorised
absence he said that he was ill and could not work. The employer
issued him with a warning.
9.
On a further occasion he failed to tender
any excuse. According to this witness he at no time alleged that he
did not have to work
as he was not contractually obliged to work on
Saturdays.
10.
Another explanation of the Employee,
according to this witness, was that there had been an allegation of
theft levelled against
him and that he would only commence work again
when the allegation had been addressed.
11.
The witness further testified that provided
valid reasons were given in advance the Employees were excused from
working on a Saturday.
12.
The employee in his evidence stated that he
refused to work because of the alleged allegation of theft made
against him. He repeated
the excuse that he was ill and could not
work.
13.
The employee further testified that he was
called before a disciplinary enquiry for an absence agreed to buy the
company. The company
denied this. This was not put to the company
witness in cross-examination either.
14.
The evidence for the company was that a
disciplinary enquiry was duly convened and attended by the Employee
assisted by a Shop Steward.
15.
The Arbitrator held that the company
disciplinary hearing was not properly constituted and hinged on
unfair and arbitrary grounds
and was therefore unfair. The finding
appears to be based upon the fact that there was no substantive
reason for the dismissal.
There is no indication of any unfairness
with regard to the procedural aspects.
Legal
Principles
16.
The dispute is whether the Employee was
obliged to work on Saturdays, or whether it was optional, and whether
he in fact refused
to work.
17.
The Arbitrator must consider all relevant
evidence and weigh up the probabilities if necessary to establish
whether the Employer
has discharged the onus of proof in justifying
the dismissal.
18.
The Arbitrator held on a balance of
probabilities that the Employer did not discharge the onus of proof
in proving that the Employee
was obliged to work on a Saturday.
19.
The Arbitrator reason that if the Applicant
was required (obliged) to work on Saturdays in terms of his
conditions of employment
he would not have been given an option to do
so as the witness for the Company testified that the Employee was not
required to
work every other Saturday if he gave reasons in advance.
On that argument, the arbitrator held that it is probable that there
was
no obligation to work on Saturdays.
20.
The assumption is incorrect as the evidence
was that the Employee is needed to give a valid excuse in order to be
excused from working
on a Saturday. This can only mean that there is
an obligation to work on Saturday unless excused.
21.
The Arbitrator further reasoned that it was
optional for the Employee to work on Saturdays as the company paid
its employees whether
or not they worked on Saturdays. The witness
for the company in fact testified that the employee was paid 1.5
times the actual
rate for Saturday work irrespective as to whether
the hours worked on a Saturday were in fact overtime over and above
normal hours.
This can mean only one thing and that is that there is
a special rate for work on Saturdays and that the Employee was paid
according
to that rate.
22.
The Arbitrator in addition concluded that
because under common law as well as "the employment practice"
and employees
required by law to give an employee all basic
conditions of employment in writing and because it was not done in
this case it is
an indication that the condition of employment relied
upon by the company did not exist. This reasoning is not logical.
23.
The following factors and evidence are
relevant:
23.1.
The Employee worked Saturdays for a period
of 8 years until he suddenly refused to work from March 2008
23.2.
The Employee informed the Employer that he
was ill and could not work and thereafter tendered other excuses.
23.3.
The Employee also said that he would resume
work on Saturdays when the allegation of theft made against him had
been resolved.
23.4.
The evidence of the Employer was that there
was an oral agreement to work.
23.5.
The Employee’s evidence was that
there was no such a contract in place.
23.6.
The Employee in cross-examination stated
that he refused to work, because he had been accused of theft and the
accusation had not
been resolved.
23.7.
Employees did not have to work on Saturdays
provided they had tendered an explanation beforehand.
24.
The Commissioner concluded that on a balance of probabilities the
Employer had not discharged the onus to prove the existence
of a
condition of employment that the Employee was obliged to work on
Saturdays.
25.
The Commissioner accepted the Employee’s
denial of an agreement to work overtime on Saturdays as the more
probable version.
26.
It is clear from a reading of the
arbitration award and considering the evidence that the Arbitrator
did not give careful consideration
to the evidence and the
probabilities in arriving at her conclusion.
Finding
27.
The Arbitrator clearly had not applied her
mind to the onus of proof and the balance of probabilities and the
award is one that
a reasonable Arbitrator could not have made.
28.
On the evidence and the probabilities there
is only one outcome and that is that there was an oral agreement
obliging the Employee
to work on Saturdays. The dismissal was
substantively fair.
29.
The finding that the dismissal was
procedurally unfair is based upon a finding that there was no
substantive fair reason for the
dismissal. This finding is not based
upon any evidence.
Order
Accordingly,
an Order is made on the following terms:
30.
The arbitration awards made by the First
Respondent on 23 January 2009 under case number MPRFCB 2642 under the
auspices of the Second
Respondent is reviewed and set aside.
31.
It is ordered that the dismissal of Third
Respondent was substantively and procedurally fair.
32.
No order is made as to costs.
____________________________
COETZEE
AJ
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
20
DECEMBER 2010
DATE
OF JUDGMENT:
22 December 2010
APPEARANCES:
FOR
APPLICANT:
C. PRINSLOO
instructed
by Vogel Malan Attorneys
FOR
THE RESPONDENT:
Unopposed