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[2010] ZALCD 12
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Nhlengethwa v Eagle Liner (Pty) Ltd (D415/08) [2010] ZALCD 12 (17 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE
NUMBER: D415/08
Not
Reportable
SAMUEL
NAPHTAL NHLENGETHWA
Applicant
And
EAGLE
LINER (Pty) Ltd
Respondent
JUDGMENT
Cele
J.
Introduction
[1]
This is an application to make an arbitration award dated 25 May
2007, issued by Commissioner Aubrey Ngcobo, under the auspices
of the
Commission for Conciliation, Mediation and Arbitration (the CCMA), an
order of court in terms of section 158 (1) (c) of
the Labour
Relations Act Number 66 of 1995 (the Act). Simultaneously, the
applicant seeks a declaratory order that the respondent
has failed to
comply with the said arbitration award and that the respondent be
ordered to make payments to the applicant in terms
of the award with
retrospective effect. The respondent opposed the application, raising
such a dispute of facts that the matter
had to be referred to oral
evidence for the resolution of such facts.
Factual
background
[2]
The applicant was in the employ of the respondent as a bus driver
from about September 2001, in a commercial transport industry.
He
would be deployed to different routes including those between Gauteng
Province and KwaZulu-Natal. On 4 July 2006 the applicant
was at work
operating a bus of the respondent at Standerton area. Inspectors
employed by the respondent boarded his bus to do their
routine
checking and they found three passengers without tickets. This
incident led to the respondent charging the applicant with
an act of
misconduct. He was found to have committed that misconduct and was
dismissed. He then referred an unfair dismissal dispute
for
conciliation and arbitration. Commissioner Ngcobo found that the
applicant was guilty of the misconduct charged but that the
dismissal
was too harsh as a sanction. He therefore found the dismissal to have
been substantively unfair. He also found the procedure
followed to
have been lacking fairness and he ordered the respondent to re-employ
the applicant at the same position and on the
same terms and
conditions as existed prior to his dismissal. The respondent did not
challenge the award which was issued on 25
May 2007.
[3]
On 11 June 2007 the applicant reported for duty at the Head Office of
the respondent in Lenesia in Gauteng and he presented
himself to Mr
Moletsane one of the Managers of the respondent. Parties are in
dispute about whether or not the applicant went home
to fetch his
personal belongings in preparation for the resumption of work. They
are also in dispute about the nature of work performed
by the
applicant from 11 to 13 June 2007, but it is not in dispute that he
availed his services for the respondent. The General
Manager of the
respondent, Mr Ghalib Ismail arranged to meet the applicant on 14
June 2007. The meeting took place as arranged.
They both agreed that
the applicant was to operate a special bus from Gauteng to Durban on
the following day, Friday, 15 June 2007.
Mr Ismail informed the
applicant to work on a newly created Gautrain route as from the
following Monday, 18 June 2007. According
to the pleadings the
applicant was dissatisfied about being allocated to a route which he
had not services before. He referred
to the Nquthu, Mondlo route as
his regular route. He had been operating in this route when he
committed the misconduct which led
to his dismissal. The applicant
did not turn up to operate the special bus from Gauteng to Durban on
Friday. Nor did he report
for duty on 18 June 2007.
[4]
In April or May 2007 two members of the respondent company and one Mr
Peter Rabally of the Caribbean Blue company jointly undertook
a
business venture of transporting workers involved in the building of
the Gautrain project in Gauteng. 3 employees of the respondent
were
put into the project as bus drivers together with 5 drivers employed
by Mr Rabally. Mr Rabally was responsible for the day
to day
operation of the venture with Mr Ismail giving him help as and when
it was necessary. The respondent initially supplied
more buses than
Mr Rabally but later Mr Rabally acquired more buses for his drivers.
The applicant returned to report on duty a
few weeks after the
commencement of the Gautrain route.
[5]
Mr Mnguni, being the representative of the applicant as the Organiser
of the Democratic Rights Workers Union of SA wrote a letter
dated 26
June 2007 on behalf of the applicant, for the attention of Mr Fazil
Bhayla, the respondent’s Director. He pointing
out that Mr
Ismail had refused to accept the applicant back at work in the same
position and to accord him the same conditions
as had existed before
his dismissal. He said that Mr Ismail was therefore refusing to
comply with the terms of the arbitration
award. He called on Mr
Bhayla to intervene, saying that the applicant was to work in his
position as a driver, at the same place,
and was to receive the same
benefits. He said that the applicant was to work in the same route as
before, failing which he would
apply for the award to be made an
order of court. The respondent issued a letter dated 2 July 2007
under the hand of Mr Bhayla
as a response to his letter. The letter
outlines the chronology of events and then states:
“…
..Mr
Ghalib informed Mr Nhlengethwa that he was going to start at Gautrain
which is our sister company, on Monday 18 June 2007.
Mr Nhlengethwa
decided to leave the company on 14 June 2007 and he did not comply
with Mr Moletsane’s instruction to operate
the special to
Durban
In view of all this,
the company believes that Mr Nhlengethwa absconded himself from work
on 14 June 2007.”
[6]
The issues between the parties were not resolved and the applicant
initiated the present application.
The
evidence
Applicant’s
version
[7]
The applicant said that when Mr Ismail told him to work at the
Gautrain route, he had no problem except that he wanted to know
from
Mr Ismail if there were appropriate sleeping facilities available for
drivers in that route. Mr Ismail told him to enquire
from other
drivers what facilities there were. He then looked for drivers
operating in that route and found one, a Mr Jabulani
Nene who told
him that they has a serious problem in that drivers had to sleep and
bath in bases. The drivers had to relieve themselves
in bushes. The
applicant considered his age of 57 years and realized that the
working conditions were demeaning. He went back to
Mr Ismail and told
him of the problem. Mr Ismail hand gestured and said he could not
help him. The applicant telephoned Mr Mnguni
who asked to talk to Mr
Ismail. Messrs Mnguni and Ismail had a telephone discussion on the
issue raised by the applicant and Mr
Ismail told Mr Mnguni not to
teach him his job. While the discussion continued, Mr Ismail’s
telephone rang and the applicant
went to wait outside.
[8]
The applicant again telephoned Mr Mnguni who told him to leave the
working place if he was told that he was not accepted back.
Mr Mnguni
undertook to discuss the matter with a Director of the respondent who
was at the time away and not available. The applicant
left the
workplace for the reason that Mr Ismail had indicated to him that he
(Mr Ismail) was not happy about the return of the
applicant as well
as his complaint that there were no sleeping facilities in the
Gautrain route. Mr Mnguni then wrote the letter
of 26 June 2007.
[9]
Mr Nene testified that the he joined the Gautrain route in May 2007
to be one of the three drivers of the respondent. There
were other 5
drivers employed by a Mr Rabally. All the 8 drivers operated within
the Gautrain route where more buses belonged to
the respondent. He
met other drivers operating in that route and he was made to
understand that they had to sleep in their buses
as no accommodation
facilities were made for them. They parked buses in a rectangular
manner and used the enclosed space for bathing
purposes. They had no
ablution facilities. They had no security and as buses could not be
locked, they were vulnerable to attacks.
This was at Modderfontein
where they had to pick up their passengers. Mr Rabally, who was too
keen to meet and talk to his employees,
soon found accommodation for
his drivers at Kempton Park. He said that Mr Ismail complained about
drivers going to sleep at Lenesia
as it involved travelling a long
distance and wastage of fuel. He said that during the time he worked
for the respondent no arrangement
at Boksburg had been made for their
accommodation and that if any such accommodation was made, it would
have been after he had
resigned from the employment by the
respondent. He could not explain why in his statement no reference
was made of him meeting
the applicant at the workplace to talk about
sleeping accommodation in the Gautrain route. He said that he could
not read and write
English. He said that he had discussed
accommodation problems with Mr Ismail on a number of occasions.
[10]
Mr Mnguni said that the applicant had telephoned him on the day he
met Mr Ismail after he had reported back at
work. The applicant told
him that Mr Ismail was not willing to re-employ him on the same terms
as were stated in the arbitration
award in that he (the applicant)
was being deployed to a sister company but had no problem with it
save that there were no proper
sleeping facilities in that route. In
the letter written by Mr Mnguni no reference was made of the positive
attitude of the applicant
in accepting the instruction from Mr
Ismail. Mr Mnguni was at pains in an attempt to explain this
disparity when taxed on it. He
corroborated the version of the
applicant about the conversation he had with Mr Ismail who denied any
unwillingness on his part
to implement the terms of the award which
he (Mr Ismail) said was in front of him. Mr Ismail then became
emotional and accused
Mr Mnguni of attempting to teach him his job as
he was trying to intervene and he handed the telephone back to the
applicant.
[11]
The applicant needed to know what to do. He advised him that he would
find another member of management to try
and resolve the impasse and
he telephoned Mr Moletsane who declined to intervene due to the
seniority level of Mr Ismail to him.
Mr Mnguni learnt that the
Director of the respondent was out of the country but would be back
in the office on 26 June 2007. They
had to wait until that date and
when it came, he telephoned Mr Bhayla and outlined the situation to
him Mr Bhayla suggested that
Mr Mnguni was to reduce what they had
discussed into writing, hence the letter of 26 June 2007. He was too
shocked when he received
the letter dated 2 July 2007 from Mr Bhayla
as he thought Mr Bhayla was more understanding of the situation. He
could not gather
strength to respond to that letter.
[12]
Mr Mnguni conceded that his union had no organizational rights with
the respondent even though the union had members
working for the
company. He said that he was still in the process of setting up
meetings with management for the recognition of
his union. He
conceded that he had not raised the working conditions problem in the
Gautrain route with the respondent, saying
that he had himself not
heard of it before the telephone discussion he had with the
applicant. He subsequently instructed the attorney
of the applicant
to initiate the present application.
Respondent’s
version
[13]
The respondent had one witness, Mr Ismail whose evidence on the
disputed issues is now to be dealt with. At the
commencement of the
Gautrain route Mr Rabally had not been able to secure accommodation
facilities for drivers. Drivers had then
to return to the Lenesia
depot and in so doing had to travel a distance of about 80
kilometres. They slept at a hostel but were
not happy and they had to
find a house in the suburb. Mr Rabally worked hard on the issue and
he finally found accommodation for
drivers in Boksburg where there
was a construction mine site belonging to ERPM. As the project grew
bigger workers were moved in
January 2008 to another site in
Modderfontein and a house was then found to accommodate the drivers.
They were working under strict
conditions and could possibly lose the
contract to transport workers if they, as transport operators did not
comply with such regulations.
[14]
In relation to the re-employment of the applicant, Mr Ismail met the
applicant on 14 June 2007 in his office. The
applicant had no problem
when instructed to undertake the bus special from Gauteng to Durban.
He then brought the applicant up
to date in relation to the business
of the company and more about the Gautrain project. He then
told the applicant that he
would work on the Gautrain route. While
the applicant preferred the Mondlo route which he had been working on
before his dismissal,
he had no problem in working in the Gautrain
route. There was no permanency on routes worked on and the applicant
might work on
the Mondlo route on the next day as the company was
guided by the demand at the time.
[15]
Mr Ismail could not put the applicant in the route he had been
working on because there were operational changes
with the result
that other drivers were allocated to that route. There was also a
legal issue pertaining to their license for operating
in that route
but after a week or so the applicant might have been allocated to
work in that route. The meeting ended with no hassles.
He did not
tell the applicant to enquire from other drivers about sleeping
facilities for the Gautrain route. He could not remember
having
spoken to Mr Mnguni about the sleeping facilities in the Gautrain
route and he said that if such a discussion had ensued,
he would have
referred Mr Mnguni to the Human Resources department of the
respondent in Pietermaritzburg. He conceded that sleeping
in buses
would certainly have been an appalling arrangement, if it had been
done.
[16]
Mr Ismail was surprised when Mr Moletsane telephoned him on Friday to
report that the applicant had not reported
for duty on Friday. Mr
Moletsane had to drive the special bus to Durban and they found
another driver to drive it back. The applicant
did not report for
duty on Monday and Mr Ismail telephoned Mr Zwane of the HR Department
in Pietermaritzburg to report the absconding
employee and he left the
matter to be dealt with by Mr Bhayla.
Evaluation
[17]
The dispute between the parties is about whether or not there was a
substantial compliance by the respondent with
the terms of the
arbitration award. It remained common cause that the applicant
tendered his services as directed by the award.
While there was some
dispute about the activities of the applicant from 11 to 14 June
2007, the respondent accepted that he was
on duty. The arbitration
award directed the respondent to re-employ the applicant on the same
position and on the same terms and
conditions as existed prior to his
dismissal.
[18]
The reference to the same position is clearly a reference to the
applicant having to be re-employed as a bus driver,
which is the
position he held before his dismissal. There appears to be no issue
on this aspect. The term or condition of employment
which appears to
be the subject of a dispute relates to whether or not the applicant
was entitled to demand to be allocated to
a particular route. This
issue appears not to be a serious problem when seen from the version
of the applicant which has been vacillating
from a demand to be
placed on a particular route and a complaint about the sleeping
facilities of drivers operating the in the
Gautrain route. Paragraph
6 of the statement of claim and the letter written by Mr Mnguni dated
26 June 2007, issued for the respondent
outline the issue in dispute
as one of a failure by the respondent to allocate the applicant to a
particular bus route. A demand
to be placed in a particular route has
no basis on the arbitration award. The applicant failed to refer
court to any company policy,
regulation or any source of authority
for that claim of a right. He must have failed because no such
authority existed. Clearly
therefore the pleaded case of the
applicant has no basis capable of sustaining the cause of action
sought to be relied upon.
[19]
The complaint about the sleeping arrangements within the Gautrain
route has its own problems. Firstly, it is not
a pleaded cause of
action. The result is that the respondent was taken by surprise when
it had to meet a case for which it was
not forewarned and prepared.
The approach by the applicant in this regard was nothing short of a
trial by ambush. The conclusion
is irresistible that the applicant
was trimming his sails to suite the wind as the trial was
progressing. If the applicant believed
in the truth of this version
he no doubt would have referred to it at the earliest available
opportunity which presented itself
in the letter written by Mr Mnguni
for the respondent dated 26 June 2007. Secondly, if provision for
accommodation, as an employment
benefit, was not catered for in the
employment contract or in the company policy or in a collective
agreement, a demand for such
provision would be a mutual interest
issue which belongs to collective bargaining. Unfortunately for the
applicant a single employee
may not constitute a strike. Even if the
applicant were confronted with accommodation problems the remedy
thereof did not lie in
him leaving the workplace as he did.
[20]
On either version of the applicant his application falls to be
dismissed. What is of concern though is the manner
in which the
respondent reacted to the conduct of the applicant or rather a lack
of such reaction. It is expected of an employer
to act decisively
with an absconding employee so as to avoid a stalemate as has
happened in this matter. While the rationale underlining
this
application has no merits, the arbitration award stands as it is
still valid and binding. The parties have allowed confusion
to
prevail since the award was received by them. It is only as a means
of guiding the parties for their future conduct in this
matter that
it is recommended that the applicant should again tender his services
to the respondent for re-employment, with no
retrospective effect. He
was 57 years of age in 2007. The respondent may be guided by its
policy on the natural age of retirement
and the issues on the public
carriers permit in considering whether to re-employ him.
[21]
The following order will therefore issue:
1. The
application is dismissed.
2. No costs
order is made.
__________
Cele
J.
DATE
OF HEARING
: 17 AUGUST 2010
DATE
OF JUDGMENT
:
17 DECEMBER 2010
APPEARANCES
FOR
APPLICANT
: Mr P JAFTA of JAFTA
INC.
FOR
RESPONDENT
: Mr P HOBDEN of
tomilson mnguni james ATTORNEYS