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[2010] ZALCCT 29
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Maruping v NBCCI and Others (C504/07) [2010] ZALCCT 29 (10 December 2010)
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C 504 / 07
IN
THE MATTER BETWEEN:
KELEPILE
ISRAEL
MARUPING APPLICANT
AND
NBCCI FIRST
RESPONDENT
WMA
RELEFETA
N.O. SECOND
RESPONDENT
BP
SOUTH AFRICA (PTY)
LTD THIRD
RESPONDENT
JUDGMENT
STEENKAMP
J:
Introduction
[1]
This is an application to review and set
aside an arbitration award of the arbitrator, Commissioner WMA
Ralefeta (the second respondent).
The first respondent is the
National bargaining Council for the Chemical Industry (NBCCI). The
third respondent is the applicant’s
former employer, BP South
Africa (Pty) Ltd.
[2]
BP dismissed the applicant on 24 November
2006. The reason for the dismissal was that:
2.1
he had sold company product (i.e. petrol)
illegally;
2.2
he had offered diesel to a customer’s
employee; and
2.3
he failed to account for 473 litres of
unleaded petrol which was left on board a tanker truck by his
colleague previous day.
[3]
The arbitrator found on a balance of
probabilities that the dismissal was procedurally and substantively
fair. The award was delivered
on 23 August 2007.
[4]
The applicant seeks to review the award on
the grounds:
4.1
He was not allowed legal representation at
arbitration.
4.2
The arbitrator refused to postpone the
hearing.
4.3
The arbitrator failed to consider the
evidence before him properly and thus committed a reviewable
irregularity.
[5]
The Bargaining Council did not keep a
proper record and the parties had to reconstruct the arbitration
record with the assistance
of the Commissioner, who had regard to his
handwritten notes. The applicant also submits, as an overarching
review ground,
that the arbitration should be remitted because
of the absence of a proper record.
Background
[6]
The applicant was employed as a driver of a
fuel tanker. BP sells fuel, i.e. petrol and diesel. One of the
applicant’s main
duties was to deliver fuel to BP customers.
One of those customers is Natro in Rustenburg. The applicant was
dismissed for gross
misconduct, in that he unlawfully sold company
product to employees of Natro on 28 October 2006. It was alleged that
he sold 25
litres of unleaded petrol (ULP 93) to one employee,
Sylvester Mosala; and that the offered 25 litres of diesel to another
employee,
Elias Phiri. It was further alleged that he failed to
account for 473 litres of ULP 93 that was left on board the truck by
the
previous driver.
The record
[7]
At the arbitration, the two employees of
Natro, messrs Mosala and Phiri, gave evidence implicating the
applicant. BP also called
Mr J Monare, the depot manager, to explain
the documentation relating to deliveries and excess fuel. The
applicant testified on
his own behalf. Only Monare’s evidence
was properly recorded and transcribed.
[8]
However, the arbitrator’s handwritten
notes are available. His notes tie up with his summary of the
evidence in his award.
The award is fairly detailed, comprising eight
typewritten pages in single spacing in what appears to be an
eight-point font. The
award summarises the evidence of each witness
in turn, including the cross-examination of each witness. The
parties’ attorneys
also had a reconstruction meeting together
with the arbitrator in an attempt to reconstruct the record. The
minutes of that meeting,
comprising 10 pages, was also made available
to the court. At the arbitration, BP also relied on documents in the
form of trip
sheet reports. Those reports also form part of the
record before me.
[9]
I
am satisfied that the record is sufficient for the purpose of this
review. I am able to determine on the reconstructed record
whether
the decision of the Commissioner was reasonable. The enquiry before
the arbitrator was a fact based one, as described in
Sidumo
& another v Rustenburg Platinum Mines Limited & others:
[1]
"The statutory
scheme requires a commissioner to determine whether a disputed
dismissal was fair. In terms of section 138 of
the LRA, the
commissioner should do so fairly and quickly. First, he or she has to
determine whether or not misconduct was committed
on which the
employer's decision to dismiss was based. This involves an enquiry
into whether there was a workplace rule in existence
and whether the
employee breached that rule. This is a conventional process of
factual adjudication in which the commissioner makes
a determination
on the issue of misconduct."
Substantive fairness
Illegal disposition of
fuel
[10]
At the arbitration, the arbitrator's notes
reflect that an employee of Natro, one Sylvester Motala (also known
as Tau), testified
that the applicant sold him 20 litres of petrol
for R50 on 28 October 2008. The record of the internal disciplinary
hearing also
served before the arbitrator and was placed before me.
Mosala’s evidence at the disciplinary hearing was consistent
with
his evidence at arbitration.
[11]
The other Natro employee, Elias Phiri, also
testified in the disciplinary hearing and at the arbitration. His
evidence is consistent
that, on 28 October 2006, the applicant gave
him a plastic container filled with 25 of diesel. He did not
pay for it.
[12]
It is so that the applicant denied these
allegations. However, the evidence of the two employees was
consistent and was not dented
under cross-examination. The arbitrator
found on a balance of probabilities that the applicant had committed
misconduct by offering
fuel to these two employees. That conclusion
is not unreasonable and is not open to review.
[13]
The arbitrator made a small error when he
said that the applicant sold fuel to both witnesses. In fact, what
the evidence shows,
is that the applicant sold fuel to one employee
and gave it to the other for free. This error is inconsequential. The
fundamental
point is that the applicant was unlawfully disposing of
his employer’s property. That constitutes dismissible
misconduct.
It does not make the arbitration award reviewable.
Failure to account for
473 litres of petrol
[14]
The
depot manager, Monare, explained the issue of the unaccounted petrol
at the hand of documentary evidence at the arbitration.
Mr
Dell
,
who appeared for the applicant, complains that this constitutes
hearsay evidence. However, the applicant never objected or queried
the veracity of the trip sheets at the arbitration. In fact, he
admitted that he did not check the compartments to see if the
previous driver had left excess fuel in it. He also conceded that it
was his responsibility to do so. I am not persuaded that the
arbitrator committed a gross irregularity by having regard to the
documentary evidence. As the Labour Appeal Court pointed out
in
Edcon
Ltd v Pillemer NO & others:
[2]
"Arbitration
proceedings are intended to be resolved quickly and informally. The
Commissioner's admission of hearsay evidence,
especially in
circumstances where the admitted evidence is not disputed, does not
constitute a reviewable irregularity."
[15]
The trip sheet reflects that the truck
contained 473 litres of excess petrol when it was assigned to the
applicant on 28 October
2006. The applicant admits that he did not
check the fuel remaining in the truck, but claimed at arbitration
that he did not do
so because he did not have a safety harness. In
his award, the arbitrator concluded that this excuse was
unacceptable. Firstly,
the applicant used this mistake to use the
fuel for his own gain. Secondly, he was well aware of the company
rule and it did not
justify his departure from the company rule.
Thirdly, he made no effort on the day to find a safety harness.
[16]
These findings are not unreasonable. The
arbitrator's conclusions are rationally connected to the evidence
before him. It is not
so unreasonable that no reasonable arbitrator
could have come to the same conclusion.
Procedural fairness.
Legal representation
[17]
The applicant submits that there is a
dispute between the parties as to whether or not the applicant had
applied for legal representation
at the arbitration hearing. The
Commissioner did not deal with the issue of legal representation in
the award itself.
[18]
However, in the reconstructed record the
Commissioner recorded that the applicant was comfortable to proceed
with the matter without
legal representation. This was confirmed by
both the arbitrator and by BP’s representative at the
reconstruction meeting.
It is common cause that the applicant’s
erstwhile attorney, Mr Cloete, was not present at the arbitration.
[19]
In any event, it is only in exceptional
cases that legal representation would be allowed at a misconduct
arbitration. In terms of
CCMA rule 25(1)(c), if the dispute being
arbitrated is about the fairness of a dismissal and a party has
alleged that the reason
for the dismissal relates to the employee’s
conduct or capacity, the parties are not entitled to be represented
by a legal
practitioner in the proceedings unless –
the commissioner and all
the other parties consent; or
the commissioner
concludes that it is unreasonable to expect a party to deal with the
dispute without legal representation, after
considering –
(a)
the nature of the questions of law raised
by the dispute;
(b)
the complexity of the dispute;
(c)
the public interest; and
(d)
the comparative ability of the opposing
parties or their representatives to deal with the dispute.
[20]
This was not a case that warranted legal
representation at arbitration in any event. Although it is by no
means clear that the applicant
requested legal representation, even
if he had done so, and in the absence of agreement, it would not have
been unreasonable for
the arbitrator to decline it.
[21]
By the same token, there is nothing on the
record or in the award to show that the applicant asked for a
postponement in order to
obtain legal representation. Such a
postponement would in any event have been futile in circumstances
where the applicant was not
entitled to legal representation. This
ground of review must also fail.
Costs
[22]
I have come to the conclusion that the
arbitrator's award is reasonable and is not open to review. However,
I do not deem it appropriate
in law or fairness to saddle the
applicant with a costs order. This matter has taken four years to
reach finality, due to a large
extent to the incomplete record and
attempts to reconstruct it. During this period the applicant has had
to incur significant costs
for his own legal representation. In my
view, this is a matter in which each party should pay its own costs.
Order
[23]
The application is dismissed. There is no
order as to costs.
_______________________
STEENKAMP
J
Date
of hearing:
2 December 2010
Date
of judgment:
10
December 2010
For
the applicants:
CM
Dell
(Heads
of argument drafted by S Grobler)
Instructed
by
Horn & Van Rensburg, Boemfontein
For
the respondent:
FA
Boda
Instructed
by
Eversheds,
Sandton
[1]
[2007] 12 BLLR 1097 (CC)
[2]
[2007] ZALC 101
;
[2008] 5 BLLR 391
(LAC)