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[2010] ZALCCT 45
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Bosasa Operations (Pty) Ltd t/a Horizon Youth Centre v NEHAWU and Others (C 289/05) [2010] ZALCCT 45 (26 November 2010)
Not
reportable
Of
interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE
TOWN
Case
No: C 289/05
In
the matter between:
BOSASA
OPERATIONS (PTY) LTD
T/A
HORIZON YOUTH
CENTRE
.........................................................................................
Applicant
and
NEHAWU
.......................................................................................................................
First
respondent
CCMA
.........................................................................................................................
Second
respondent
STEPHEN
BHANA
N.O
.............................................................................................
Third respondent
MH
SIBELEKWANE
................................................................................................
Fourth
respondent
JUDGMENT
STEENKAMP
J:
INTRODUCTION
[1]
This is an application to review and set
aside the arbitration award of the third respondent (the arbitrator)
handed down on 17
May 2005. Following the dismissal of the fourth
respondent, MH Sibelekwane (the employee) by the applicant, the
arbitrator found
the dismissal to be substantively unfair. He ordered
the applicant to reinstate the employee retrospectively to the date
of his
dismissal on 25 October 2004.
BACKGROUND
FACTS
[2]
The
applicant, a youth centre, employed the employee as a care worker. In
a disciplinary enquiry, the applicant found that the employee
had
assaulted a youth
[1]
in his
care, one Justin Karolus, by “tramping"
[2]
on his head.
[3]
The arbitrator found that the youth had
contradicted himself in the arbitration and in his evidence at the
disciplinary enquiry
(as per the minutes of that enquiry). The
arbitrator found that he was not a credible witness. In contrast, he
found that the employee's
testimony was consistent and that he had
shown remorse for the incident. On a balance of probabilities, the
arbitrator found that
the employee had accidentally inflicted an
injury on the youth.
[4]
It is common cause that there was a scuffle
on the day of the incident. The youth refused to go to class and
tried to hide away.
The employee and another co-worker had forcibly
taken him to the welding classroom. The youth resisted going inside
and the employee
tried to push him. The youth fell to the floor and
sustained an injury on his head. The applicant says that the employee
had "tramped"
on his head, thus causing the injury. The
employee does not deny that his feet landed on the youth’s
head, but testified
that it was not intentional and that he lost his
balance and fell on top of the youth in the scuffle.
[5]
In
his evidence at arbitration, the employee described the incident as
follows
[3]
:
"When
we reached the… class, we had to knock at the door because the
door was closed and it was locked. Then the educator
opened the door
and ... we said, ‘Please, don't want to force you, go inside.'
Justin said 'I will not go in.' So we try
and push him. He don't want
to go. Then we push him and when we push him he… with my tie
and my jacket. Just because I leaned
forward then I lose my balance
then I just saw my feet lying on top of his head… As we saw
then we saw the blood on the
side of the head."
[6]
The employee reputed essentially the same
version of events in cross-examination.
[7]
The youth testified as follows in his
examination in chief:
"When
we arrived at the classroom I refused to go in and the…
instructor then opened the door and he [the employee]
pushed me in
and then I fell. I then got up and I wanted to run outside, then he
got hold of me again and he threw me to the ground.
Then he
smacked
[4]
me twice on my head. Then I kept lying down and I was bleeding and I
was lined on the whole time. "
[8]
When his representative asked him, "How
did you get injured on your head?” the youth replied, "When
I fell to the
ground I injured my head." In cross-examination,
he said that the employee" tramped" twice on his head.
[9]
The applicant’s main witness, Juliana
Williams, testified that no physical assault was allowed. However,
she differed with
another member of the managerial staff, Nuxolo
Malindi, as to what constituted minimum force.
[10]
Malindi, who was present when Williams and
the nurse who treated the youth, Theresa Sixaba, testified, stated
that the head wound
was a "deepish cut”. Sixaba, on the
other hand, testified that it was a "small bruise”. She
was adamant that
there was no cut and that it was not bleeding.
THE
AWARD
[11]
The arbitrator found that the applicant's
witnesses had contradicted one another on crucial issues. He found
that the youth had
contradicted himself and was not a credible
witness. In contrast, the evidence of the employee was consistent.
[12]
The
arbitrator referred to the following
dictum
in
Plaatjies
& another v Road Accident Fund
[5]
:
"In
this matter we are dealing with two mutually destructive versions. A
plaintiff can only succeed if he satisfies the court
on a
preponderance of probabilities that his version is true and accurate
and therefore acceptable, and that the other version
advanced by the
defendant is therefore false or mistaken and falls to be rejected. In
deciding whether the evidence is true or
not the court will weigh up
and test the plaintiff's allegations against the general
probabilities. The estimate of credibility
of the witness will
therefore be inextricably bound up with a consideration of the
probabilities of the case and, if the probabilities
favour the
plaintiff, then the court will accept his version is being probably
true. If however, the probabilities are evenly balanced
in the sense
that they do not favour the plaintiff's case more than they do the
defendant’s, the plaintiff can only succeed
if the court
nevertheless believes him and is satisfied that his evidence is true
and the defendant's version is false."
[13]
The arbitrator found that the version of
the employee was the more probable one. Given that the applicant
bears the onus of showing
that the dismissal was fair, the arbitrator
found that the applicant has not discharged the onus and he found the
dismissal to
be substantively unfair.
GROUNDS
FOR REVIEW?
[14]
The applicant submits that the arbitrator
disregarded the rules of evidence and in that way denied the
applicant a proper hearing.
Mr Campanella, for the applicant, argued
that the employee’s version of events was improbable.
[15]
In this regard, I must bear in mind that
this is a review, not an appeal. The arbitrator has the advantage of
observing the witness
before him and he was in the best position to
make a finding as to their credibility.
[16]
Having considered the evidence of the
various witnesses in the transcript of the arbitration hearing, I am
not persuaded that the
arbitrator's findings on credibility were
unreasonable. They were indeed contradictions between the applicant’s
witnesses
inter se
and
in the different versions proffered by the youth. The evidence of the
employee, on the other hand, remained consistent. His
version of
events is not so improbable that a reasonable arbitrator could not
have found that that it was convincing.
[17]
The decision of the arbitrator was not so
unreasonable that no reasonable commissioner could have come to the
same conclusion.
RELIEF
[18]
Mr Campanella submitted that, if I were not
inclined to grant the application for review, I should nevertheless
take into account
the time that has passed since the dismissal and
order the applicant to compensate rather than reinstate the employee.
I do not
agree that I have the power to do that. If the application
for review is dismissed, the award stands. It is not entirely clear
why it has taken more than five years from the date of the
arbitration award for the review application to reach this court.
However,
the employer is not blameless. The award was handed down on
17 May 2005. The applicant only filed its supplementary affidavit in
terms of rule 7A(8) more than two years later, in August 2007. An
employer who chooses to take an arbitration award on review and
fails
to prosecute it timeously as contemplated in the time periods set out
in rule 7A runs the risk of the implications, should
the review
application be dismissed.
COSTS
[19]
The effect of this judgement is that the
arbitration award stands and that the employee must be reinstated. He
will have to forge
a fresh employment relationship with the employer.
His trade union, Nehawu (the first respondent) also has a continuing
relationship
with the applicant. In those circumstances, I do not
deem it appropriate to make a costs order.
ORDER
[20]
The application for review is dismissed.
There is no order as to costs.
_____________________________
ANTON
STEENKAMP
JUDGE
OF THE LABOUR COURT
CAPE
TOWN
Date
of hearing:
17 November 2010
Date
of judgment:
26 November 2010
For
the applicants:
Adv Joe Campanella
Instructed
by: L Cirone attorneys
For
the third respondent:
Attorney N
Thaanyane
[1]
Although
it was not clear from the record, I was informed from the bar that
Karolus was about 16 years old at the time of the
incident.
[2]
It
appears that Caruso's evidence at arbitration may have been partly
the Afrikaans and that it was translated into English. The
word
"tramp" in this context appears to have been an attempt at
translating the Afrikaans "trap”, resulting
in a mixture
of "trample" and "stamped".
[3]
Grammar as per the transcript.
[4]
My emphasis
[5]
[1999] 1 AllSA 168