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[2011] ZALCJHB 128
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Berga Wanga CC v Sikiti NO and Others (JR1461/09) [2011] ZALCJHB 128 (2 February 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case number: JR1461-09
In the matter between:
BERGA
WANGA CC
.....................................................................................................
Applicant
and
MABEL
SIKITI N.O
.........................................................................
1
st
Respondent
COMMISSIONER
FOR CONCILIATION
ARBITRATION
& MEDIATION (“CCMA”)
...............................
2
nd
Respondent
DEON
WILLEM DANIEL STEENKAMP
.......................................................
3
rd
Respondent
JUDGMENT
Molahlehi J
Introduction
[1] This is an
application to review and set aside the arbitration award issued by
the first respondent (the commissioner) under
case number FS6568-08
dated 15
th
April 2009. In terms of the
arbitration award the commissioner found the dismissal of the third
respondent to have been unfair and
ordered that he be compensated for
that reason.
Background facts
[2] The third respondent who in this judgment is
referred to as “the employee” for ease of reference, was
prior to his
dismissal employed as a farm manager by the applicant.
The charges that were proffered against him and upon which his
dismissal
was based are set out in the applicant’s founding
affidavit as follows:
“
i. Gross negligence in that
the Third Respondent failed to take timeous action to prevent or
limit the live stock fatalities on
Sunday 9 November 2009 with the
result that 84 sheep and 16 calves died;
ii. Failure to comply with targets set by the
Applicant and discussed and planned at staff meetings and also
failure to cooperate
in respect of timeous completion and submission
of live stock figures and wages;
iii. Conducting himself in such a manner that it
amounted to conduct detrimental to the employer/employee relationship
in making
statements on 12 November 2008;
iv. Destroying the employment relationship by
continued negativity and lack of co-operation.”
[3] Following his dismissal the employee referred an
unfair dismissal dispute to the second respondent (the CCMA), for
arbitration
subsequent to the parties having failed to reach
consensus solution at the conciliation stage.
The case of the applicant
[4] The case of the applicant in as far as the charge of
gross negligence is concerned, and as testified to by its first
witness,
Mr Hattignh, is that on the day of the incident the sheep
had been trapped at a fence after a hail storm and died as a result
of
exposure to the cold weather. Mr Hattignh testified that the
employee could have avoided the death of the sheep by going out to
where they were and rescuing them. According to him the employee
could have gone out with a van to pick up the sheep where they
were
trapped. He further stated that there were other employees who could
have assisted him.
[5] Mr Hattignh testified later in his evidence in chief
that at the time the sheep were brought to the store some of them
were
still alive and that they died later because of the manner in
which they were packed when they were transported to the store.
[6] The second witness of the applicant was Mrs
Bezuidenhout who at the time of the dismissal of the employee was
employed by the
applicant as a secretary. As concerning the charge of
gross negligence Mrs Bezuidenhout, testified that on the day of the
incidence
they saw heavy clouds as they were travelling from
Bloemfontein towards Thaba- Nchu after dropping the children at
school. She
tried to contact the employee on his cell phone to warn
him about the cloud to no avail. She left a message on his cell phone
that
he should contact her urgently, but he never did.
[7] Some 5 (five) hours later she received a call from
the domestic worker informing her that there was damage at the house.
They
then travelled to the farm which is about a kilometre from where
the employee stayed. Mrs Bezuidenhout goes on in her testimony
to say
that it was the following day that they were informed about the dead
sheep.
[8]
As concerning the third charge Mrs
Bezuidenhout, testified about comments made by the employee to her
regarding other people. According
to her the employee enquired from
her as to what a certain employees, Mr van de Linder was doing at the
applicant’s workplace,
and why was he employed. The employee is
alleged to have said that the applicant accommodated all corrupt and
people who steal
cattle.
[9] Another charge against the employee concerned the
alleged allegation that the employee had a negative attitude. The
explanation
given for this charge by Mrs Bezuidenhout is that at a
meeting of all staff members, the employee was very positive, but the
contrary
applied as soon as the meeting was over.
[10]
As concerning charge three, Mrs Bezuidenhout
could not explain why the details of the allegations against the
employee were not
mentioned in the charge to enable him to prepare.
There are about eight negative comments which the employee is alleged
to have
made against other employees.
[11] During cross examination when asked as to why
charge five did not give details regarding the negative attitudes of
the employee,
Mrs Bezuidenhout, said that, had the employee indicated
that the charged lacked clarity, she would have explained it to him
or
may have postponed the matter.
[12] The third witness of the applicant was Mr van der
Linde, who testified about charge two, which concerned the alleged
failure
by the employee to build the pill machine timeously testified
that the pill machine is used to manufacture lucerne’s tablets
for animals. He testified that, he learned when he joined the
applicant in December 2007 that the production of the machine was
planned as early as May 2007, but nothing had happened even at that
stage.
[13] According to Mr van de Linde several meetings were
held since joining the applicant, where the issue of the machine was
discussed.
The first meeting was during February 2008, attended by
farm managers in the absence of Mr Hatting and Mrs Bezondenhout. At
the
meeting of 20 June 2008, employee, according to Mr van der Linde,
informed Mr Hattingh that the machine would be ready by 21 June
2008.
Grounds for review
[14] The applicant has set out several grounds of review
in its founding affidavit. Those grounds are summarised in the heads
of
argument of the applicant with each ground followed by its
motivation.
[15] The first ground of review raised by the applicant
is that the commissioner made findings and assumptions not supported
by
evidence presented before him. In this respect the applicant
challenged several findings which were made by the commissioner. The
applicant contended that the evidence of the employee was to the
effect that there were several steps he could have taken after
the
hail storm.
[16] The second point made under the ground of making
findings unsupported by evidence is the finding that the charges
levelled
against the employee were an indication of the applicant
wanting to get rid of the employee at all costs.
[17] The second ground of review is very similar to the
one above in that the applicant contends that the commissioner
accepted
the version of the employee that his dismissal was
orchestrated and that such version was not disputed by the applicant.
The complaint
of the applicant is that such a version was never put
to the applicants witness at the time they testified.
[18] The third ground upon which the applicant basis his
case is that the commissioner allowed or accepted hearsay evidence.
The
complaint of the applicant in this regard is that the
commissioner accepted the evidence of the employee that he was told
by a
certain Mr Cloete that he had been appointed in his position.
[19] The fourth ground of review is that the
commissioner misunderstood the evidence which was presented before
her.
[20] The applicant further contended that the finding by
the commissioner that the dismissal was unfair was not justifiable.
It
was further contended that the commissioner “failed”
to understand the thrust of the misconduct the third respondent
had
been charged with.
The case of the employee
[21] The employee conceded during the arbitration
hearing that on the day of the disciplinary hearing, he could have
requested to
have a postponement to enable him the opportunity to
request further particulars. He says he did not do so because the
answer he
got regarding the clarity of the charges was
unsatisfactory. He decided to proceed with the hearing despite that
lack of clarity
on the charges because he had obtained certain
information regarding the interview for his position of a certain Mr
Cloete.
[22] As concerning the first charge the employee
testified that the hail from the storm was thick and thus could not
drive to where
the sheep were. He conceded that he received the
cell-phone call from Mrs Bezondenhout at about 16h15. He attempted
answering the
call but got cut out because of the weak signal. He
tried to call back but Mrs Bezeendenhout did not answer. He also
conceded that
there were clouds on the day in question with some
indication that it would rain.
[23] He was questioned at some length as to why he did
not contact other shepherd for assistance or contact his employer
through
his phone or by way of a radio. He says that he phoned one
shepherd on his pay-as –you go phone but could not reach him
because
of the poor reception.
The commissioner’s award
[24] The commissioner in his arbitration award makes
findings in relation to each of the charges which had been proffered
against
the employee. In relation to the first charge the
commissioner accepted the defence of the employee that he had tried
to contact
the shepherds to help him but was unsuccessful. The
commissioner further found that the applicant failed to discharge its
burden
of proving the fairness of the dismissal. The key finding in
this regard is that the commissioner found that:
“
Even if that is the case, this was an act
God and was beyond the control of the applicant.”
[25] In relation to charge two the commissioner found
that the charge was misplaced and supported the version that the
applicant
was out to get the employee at all costs. Charge three was
found to be vague as the allegations made against the employee had
not
been tabled to him to answer. The employee was found not guilty
of charge four because the applicant had failed to give the details
as to in what way could it be said that the employee damaged the
working relationship.
[26] As concerning the motive of the dismissal of the
employee by the applicant the commissioner made the following
finding:
“
[57] The applicant argued
strongly that his dismissal was orchestrated by the respondent that
is why he never challenged the vagueness
of the charges and did not
persuade further then request for a postponement of the legal
representation. The applicant testified
that a certain Mr Cloete told
him that he was interviewed by the respondent for his position. This
interview happened days before
the disciplinary hearing. This was not
disputed by the respondent except to say it was hearsay evidence. The
information was divulged
to the applicant by Mr Cloete himself and
corroborated by Mr Martin Amour it was thus not hearsay evidence. The
very Mr Cloete
was employed 2 days after the applicant had been
dismissed which confirm that the dismissal of the applicant was
orchestrated.”
[27] In reasoning why the compensation of the employee
arising from the unfair dismissal should be limited to six months the
commissioner
had the following to say:
"I thus award 6 months compensation which is
just and equitable considering the fact that the applicant was on a
FWW which
was still valid at time and was not disputed, the
respondent has suffered losses which could have been limited if the
applicant
was proactive even though it was an act of God.”
Evaluation
[28] The question which the court needs to answer to
determine whether or not it should interfere with the decision of the
commissioner
is whether that decision meets the standard of a
reasonable decision maker as set out in
Sidumo & Another v
Rustenburg Platinum Mines Ltd & Others 2007 28 ILJ 2405 (CC).
The
test is whether the decision reached by the commissioner is one which
a reasonable decision maker could not reach.
[29] In my view the decision of the commissioner in the
present instance is in a number of respects unreasonable. In the
first instance
I agree with the applicant that the commissioner made
findings and assumptions not supported by evidence which was before
him.
The finding that the employee sought assistance to no avail is
not supported by evidence. The case of the applicant during the
arbitration proceedings was that there were certain steps which he
failed to undertake. The case of the applicant which the commissioner
misconceived to be that the employee ought to have stopped the sheep
being trapped because of the storm was in fact that the employee
failed to take steps to minimise the loss. In other words the case
which the applicant put before the commissioner recognised that
incident of the storm was an event which the employee did not have
control over. The case of the applicant which called on the
employee
to answer was what did he do to minimise the loss that ultimately
occurred as result of that hail storm. The commissioner
seems to have
only come to understand that case in his conclusion when he reasoned
as to why the employee should receive limited
rather than maximum
compensation. As will appear later whilst I agree with the reasoning
regarding the compensation, I do not agree
with the conclusion that
the employee was entitled to compensation. The loss of sheep did not
occur at the time they were trapped
at the fence only but also when
they were transported to the warehouse. The employee did not dispute
that other sheep died because
of the way they were loaded. In other
words had the employee taken proper steps in the manner in which they
loaded the sheep he
could have avoided further deaths of the sheep.
[30] The finding by the commissioner that charges
levelled against the employee were indicative of the fact that the
applicant wanted
to get rid of the employee is not supported by any
evidence and for that reason the decision of the commissioner is
unreasonable.
The commissioner also found that the applicant did not
dispute the version of the employee that his dismissal was
orchestrated.
In this respect my view is that the commissioner
misconceived his task as such a version was never put to the
applicant’s
witnesses during their testimony. There is a well
established principle in our law that during cross examination a
litigant needs
to put his or her evidence to the witness of the other
party to afford him or her opportunity to deal with whatever version
that
party would put forward when his or her opportunity to testify
avails. A litigant who fails to challenge or put his or her version
to the witness of the other party whilst he or she is still in the
witness stand runs the risk of the version of that witness being
accepted as truthful.
[31] In the present instance the applicant witnesses
were never cross examined about the alleged appointment of Mr Cloete
and therefore
never had the opportunity to deal with the allegation
that his dismissal was orchestrated in order to appoint Mr Cloete.
Thus the
commissioner ought to have rejected the version about the
appointment of Mr Cloete on the basis that it was never put to the
applicant’s
witnesses.
[32] The finding that the cause of the problem was an
act God which the employee had no control over was as indicated
earlier a
misconception of the case which was put before the
commissioner by the applicant. The case of the applicant was not that
the employee
needed to avoid the death of the sheep in the
circumstances. The case of the applicant was that the employee failed
to take steps
to minimise the loss. Again as indicated earlier that
finding is, in direct conflict with the reasoning as to the
conclusion reached
as concerning the compensation which was awarded
to the employee. It seems to me that the basis for reaching that
conclusion concerning
the limit to the compensation is correct in one
respect and is also in line with the proper case which the
commissioner was called
upon to decide. It is correct with respect to
the finding that: “
the respondent (the applicant) has
suffered losses which could have been limited if the applicant was
proactive even though it was
an act of God.”
It is however
unreasonable to the extent that the compensation is based on the
finding that the dismissal was unfair. In addition
to the conclusion
reached by the commissioner is unreasonable to the extent that the
commissioner despite the existence of a final
written warning still
found the dismissal of the employee to be unfair. The award of the
commissioner is unreasonable because had
he applied his mind to the
totality of the evidence and the circumstances of this case he ought
to have come to the conclusion
that the dismissal of the applicant
was for a fair reason.
[33] In my view the arbitration award of the
commissioner has failed the test of a reasonable decision -maker and
thus his award
stands to be reviewed.
[34] As concerning the costs, I am of the view that the
conduct of the employee in defending the review was not unreasonable
and
accordingly I do not belief that it would be fair to allow the
costs to follow the results.
[35] In the premises the following order is made:
1. The arbitration award of the respondent is reviewed and set aside.
2. The arbitration award is substituted with the award
that says that the dismissal of the third respondent was for a fair
reason
and therefore his dismissal based on the alleged unfair
dismissal is dismissed.
3. There is no order as to costs.
______________
Molahlehi J
Date
of Hearing : 22 September 2010
Date
of Judgment : 2 February 2011
Appearances
For
the Applicant : Connie Prinsloo
Instructed
by : Vogel Malan Attorneys
For
the Respondent: P.M. Venter
Instructed
by: Lovius Block Attorneys
3