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[2011] ZALCJHB 55
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Moshela v Commission for Conciliation Mediation and Arbitration and Others (JR1524/06) [2011] ZALCJHB 55; (2011) 32 ILJ 2692 (LC) (1 July 2011)
LEGASA
ANDRIES MOSHELA v COMMISSION FOR CONCILIATION MEDIATION AND
ARBITRATION, LANCE CILLIER & DHL DANZAS AEISA (PTY) LTD
–
Case No: 1524/06- Review Application- Unfair Dismissal, Applicant
seeking reinstatement without loss of benefits.
___________________________________________________________________________________________________________________________
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case No: JR1524/06
In the matter between:
LEGASA ANDRIES MOSHELA
…...........................................................
Applicant
AND
COMMISSION FOR CONCILIATION
….......................................
1
st
Respondent
MEDIATION AND ARBITRATION
LANCE CILLIERS
…........................................................................
2
nd
Respondent
DHL DANZAS AEISA (PTY) LTD
…..............................................
3
rd
Respondent
JUDGMENT
CAWE AJ
INTRODUCTION
This is an application which is opposed by the Third
Respondent, DHL Danzas AEISA, for an order reviewing and setting
aside and/or
correcting the award by the Second Respondent under
Case Number: GAJB 14681-05 dated 17 May 2006. The Applicant wants
the Third
respondent’s award to be substituted by an order
that Applicant’s dismissal was substantively unfair. Further
the
Applicant seeks compensation for twelve (12) months and to be
reinstated without any loss of benefits. In the alternative the
Applicant seeks to have the matter remitted back to the Second
Respondent to be heard afresh before another Commissioner other
than
the Third Respondent.
The instant application is one of those that have,
unfortunately, had a protracted history before this Court. The
matter has served
before Judges Cele AJ (as he then was) and De
Swart AJ. The first instance was when the Applicant referred the
matter to the
Court for Review.
On 7 May 2008 Cele AJ (as he then was) dismissed the
Applicant’s application for the review of the arbitration
award made
by Third Respondent. On 16 July 2009 the Applicant’s
application for the rescission of the aforesaid Order came before
Judge Du Swart. In a judgment delivered on the same day the
application for rescission was granted, the Order previously made
was rescinded and the Applicant was given leave to amplify the
grounds upon which the review of the arbitration award was sought.
The Third Respondent appealed against this decision
citing amongst others that the application for rescission had been
on Notice
Of Motion and did not follow the decision in
Plascon-Evans
Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984(3) SA 623(A).
In granting leave to appeal to the Applicant Judge Du
Swart stated that;
“
In my view a grave
injustice would result if the doors of this Court were to be closed
to the applicant in circumstances where he
was unaware of the fact
that his application for review was on the roll for hearing before
this Court. It does not appear to me
that there is a reasonable
prospect that another court will come to a different conclusion in
this regard, given the circumstances
of the case.”
She then refused leave to appeal. This was what has led
to the review application being re-enrolled to serve before me.
Relevant Background Facts
The Applicant was employed as an export controller by
the Third Respondent. His duties were to prepare documentation for
the export
of Client’s goods.
In February 2005 the Applicant oversaw the completion
of documentation for a shipment to be exported to Hong Kong for a
client
of the Third Respondent called Digistix.
According to the Third Respondent the Airfreight Export
Manager of the Third Respondent became suspicious of this shipment
for
a number of reasons. One of these reasons was the fact that the
Applicant had allegedly manually changed the credit account of
Digistix to a cash account. The Applicant arranged for the shipment
to be transported to Hong Kong with Emirates Airline as opposed
to
it being sent directly to the Third Respondent’s officers in
Hong Kong. It is not specified by the Third Respondent
as to which
airline regularly deals with its shipments.
When the matter file was located, according to the
Third Respondent, the contacts there were not Digistix Employees.
This aroused
the suspicion of the Export Manager even further. One
of the reasons that made the Export Manager investigate was the fact
that
the Applicant worked on a Saturday and seemed to have
calculated the weight and cost of the shipment before it had reached
the
warehouse. This was against the Rules of the Third Respondent.
Acting on his suspicion the Export Manager ordered that
the shipment be located and brought back to South Africa. The
Transport
Manager of the Third Respondent fetched the shipment from
the airport and while returning to the Third Respondent’s
offices
he was stopped by the South African Police Force. The
shipment was opened and it was found to contain an illegal
consignment
of perlemoen.
According to the Applicant he was approached by the
Director of the Third Respondent; Mr Brian Olwage, who informed him
verbally
of his suspension. The reason for the suspension had
something to do with a shipment that the Applicant had handled. He
was then
issued with a notice of suspension on the same day (8
th
March 2005).
At a disciplinary hearing conducted on the 11
th
March 2005 the Applicant was charged with gross dishonesty, not
following company policy and procedures and bringing the company’s
name into disrepute. He was found guilty and dismissed.
The Applicant then referred the dismissal to the CCMA.
The Second Respondent found in favour of the Third Respondent. Not
only
did the Second Respondent find in favour of the Third
Respondent but he also found that the referral was frivolous and
vexatious
in the extreme. In view of this finding he ordered costs
against the Applicant in favour of the Third Respondent on an
attorney
and own client scale.
The review application is brought in light of the
Second Respondent’s adverse finding against the Applicant.
GROUNDS FOR REVIEW
The Applicant cites the fact that the Second Respondent
refused him a postponement when he requested same in view of the
fact
that Mr Nkosi, who had been his representative on the first day
of the arbitration, had not formally withdrawn from the matter.
This
made it impossible for Mr Van Tonder, the Applicant’s new
representative, to proceed with the matter on the relevant
date.
The Second Respondent refused the postponement
application outright stating that if Mr Nkosi insists on it he would
award double
costs against the Applicant and would bar him from
having his case heard until such costs were paid in full.
It is clear from the transcribed record that the Second
Respondent made the following statement which appears on page 124 of
the
record to persuade/ force the applicant to proceed with the
arbitration unassisted:“…
in terms of the CCMA rules
if the parties agree to postpone all they’ve got to do is
notify the CCMA seven days in advance
and the CCMA must postpone, it
doesn’t have a choice. No effort was [made] contact the CCMA,
no effort was made to contact
the respondent about the possible
postponement for today. The CCMA has incurred cost by brining me in
today, I don’t do
this for nothing, I get paid a fee. The
respondent has incurred cost by being here today and those costs
will be wasted if we
do postpone. I would like you to caucus with
Mr. Nkosi and I am putting two options on the table- if you insist
on a postponement
then I will tender costs against you and I will
tender double costs-The costs will be for the respondent’s
waste of time
for today and the costs will be for the CCMA’s
wasted time today okay. And Mr. Nkosi will give you an indication of
what
that would amount to in rands and I would require for those
costs to be paid before this matter gets set down again and it will
be set down unilaterally by the CCMA. So they will only set a time
once you can proof (sic) that costs have been tendered. Okay
that is
one option. The second option Mr. Nkosi is still your attorney on
record, proceed with him today as scheduled okay and
hand over to
Van Tonder if we go on to a third day. The third option is dismiss
or excuse Mr. Nkosi today and proceed unrepresented.
Okay those are
your three options. Would you like to take a caucus with your
representative and consider the options?”.
The Applicant chose to proceed unrepresented.
One has to deal with the matter of the refusal of
postponement objectively. The most important test that the Court is
called upon
to apply is whether any party will suffer prejudice if
postponement is granted or refused. One has to look at how the
Constitutional
Court has dealt with the matter on various occasions.
One that readily comes to mind is that of
National Police Service
Union and others v Minister of Safety and Security and Others
2000(4) SA 1110(CC)
at 1112F-H, where the Court enunciated the
principles governing the granting or refusal of a postponement as
follows:
“
The postponement of a
matter set down for hearing on a particular date cannot be claimed as
of right. An applicant for a postponement
seeks an indulgence from
the Court. Such postponement will not be granted unless this Court is
satisfied that it is in the interest
of justice to do so. In this
respect the applicant must show that there is good cause for the
postponement. In order to satisfy
the Court that good cause does
exist, it will be necessary to furnish a full and satisfactory
explanation of the circumstances
that give rise to the application.
Whether a postponement will be granted is therefore in the discretion
of the Court and cannot
be secured by mere agreement between the
parties. In exercising that discretion, this a Court will take into
account a number of
factors, including (but not limited to): whether
the application has been timeously made, whether the explanation
given by the
applicant for postponement is full and satisfactory,
whether there is prejudice to any of the parties and whether the
application
is opposed.”
In the case cited above the legal representative of the
Applicant was not ready to proceed and the other party had no
problem
with the postponement being granted. The Court took the view
that the agreement of the parties to postpone does not do away with
the Court’s discretion whether to grant such postponement or
not.
In the instant case the Applicant knew two weeks before
the arbitration that he intended to “dismiss” Mr.
Nkosi’s
as his attorney of record and instruct Mr. Van Tonder
to take over. At the time he was legally represented by Mr. Nkosi at
the
arbitration and Mr Van Tonder in the criminal case. He can not,
then, rely on the fact that he is a lay person and could not have
known that applications to the CCMA for postponement are done at
least seven days before the date of process. He had the benefit
of
two legal representatives who could have advised him correctly.
When the Applicant was faced with opposition from the
Respondent’s attorneys and the fact that they wanted him to
tender
wasted costs if he persistedt with the postponement
application, he decided to proceed unrepresented. The Applicant’s
Heads
of Argument do not show what prejudice was caused to the
Applicant by the refusal of the postponement by the arbitrator. None
was argued in open Court. I, therefore, do not find that the
Commissioner’s conduct is reviewable on the ground of not
allowing the Applicant postponement.
Another ground for review that was raised by the
Applicant was that the Commissioner had assisted in leading the
testimony of
the Third Respondent’s main witness whereas the
Third Respondent was legally represented throughout the Arbitration.
The
Applicant’s Heads refer to pages 2 and 28 of the
transcribed record to enhance its allegation that the Commissioner
assisted
the Third Respondent’s main witness during his
testimony. I tend to agree with the Third Respondent’s counsel
regarding
this issue, when he submits that the Commissioner was not
leading evidence for the witness but was merely taking an
inquisitorial
approach. I have perused the record and find no
evidence of the Commissioner assisting the witness in his evidence.
I, therefore,
find that this is not a ground for me to interfere
with the Commissioner’s award.
The Third ground for review, submitted by the Applicant
is that the Commissioner failed to apply his mind to the fact that
the
Applicant had only sent two boxes for shipment whereas in the
end 30 boxes were returned from Dubai. These formed the basis of
the
charges against the Applicant.
This ground for review goes to the very core of the
Commissioner’s award. The Respondent’s stated its case
first,
at the arbitration, as it had the onus of proving that the
Applicant’s dismissal was fair. It opened its case by calling
several witnesses. The first witness to be called was Mr S Adams,
Airfreight Export Manager, the second was Mr K. Day, Air Transport
and Warehouse Manager (Mr. Day was also responsible for security) Mr
I. Molepo, a warehouse worker and Mr C.Cooper, Airfreight
Expert
Supervisor and Applicant’s erstwhile supervisor.
I shall deal with their testimony (collectively) as has
been done by the Commissioner in his award. Their testimony is
summarised
as follows;
“
12.1)Digistics(Pty)Ltd is a
new account-holding client that only exported sample perishable
foodstuffs to Hong Kong with each consignment
weighing between 15 and
50kg. Adam always and only dealt with them- each employee had a
regular group of clients with whom they
exclusively dealt;
12.2) The applicant accepted a consignment for Hong
Kong and used the name of this Digistics client as the shipper. The
consignment
weighed 720kg and the R14 320 cost was paid for in cash;
12.3) Apart from numerous grossly irregular
administrative issues the applicant ought to have referred the order
to Adams, or at
least informed him about it later if Adam was
unavailable which was the situation on that day. The applicant also
ought to have
booked the consignment on account and should have been
alerted when the shipper insisted on paying cash, which is unusual.
The
consignment was sent via Dubai instead of direct to Hong Kong,
and was destined for an address in Hong Kong instead of to
respondent’s
Hong Kong office, which is a standing instruction
that can only be reversed by respondent’s managing director.
The applicant
had personally dealt with the physical cargo on a
Saturday, which is a standing instruction that can only be reversed
by respondent’s
managing director. The applicant had personally
dealt with the physical cargo on a Saturday, which in itself is
unusual. The applicant
was experienced enough, if the consignment was
genuine, for any or all of these and other irregularities to have
brought the consignment
to the attention of, at least, Cooper;
12.4) Adams called for the file on the Monday after
the consignment was despatched to the airline. The applicant failed
to hand
over the file, which was eventually retrieved by Cooper.
Further investigation by Adams revealed sufficient severe anomalies
for
Adams to alert the customs officials – in conjunction with
them the consignment was returned to JIA from Dubai whilst in
transit. On its arrival, several SAPS officers supervised the
offloading of the consignment. The packages were opened and fresh
perlemoen was found inside. Digistics had been contacted and had no
knowledge of the consignment or the persons purporting to be
Digistics employees;
12.5) Different documentation completed by the
applicant referred to the goods either as ‘traditional
foodstuff’, “frozen
vegetables” or “spices”.
There was no reference to “perlemoen” on any
documentation, and it is illegal
to handle perlemoen, without the
necessary licence. No such licence has been produced. Cooper’s
signing of the file was merely
to acknowledge that a COD order was
placed and paid for- he did not and was not required to scrutinise
the paperwork or any other
element of the consignment;
The Applicant’s version can be summarized (as was
done by the Commissioner) as follows;
“
13.1) The applicant had
received a telephonic request for goods to be urgently air freighted
to Hong Kong. The client presented
himself as an employee of
Digistics, and the applicant was not aware that this client was
exclusively Adam’s;
13.2) Preliminary paperwork was done, was more fully
completed on the client and goods’ arrival. The client’s
request
that the goods bypass respondent’s Hong Kong office was
granted after the applicant consulted with Cooper;
13.3) Documentation had been rushed through because
of the urgency and errors were made. Often errors are attended to
after the
goods have left, and these would have been addressed had
Adams not kept the file. The applicant had not deliberately retained
the
file after Adams called for it, but had to retrieve it from the
official who was closing the file;
13.4 The applicant had at all times acted in good
faith towards the client and had provided a professional service to
favour the
client when deviations from the norm were required- none
of these deviations were prejudicial or detrimental to the respondent
or the integrity of SARS or customs’ security and other lawful
processes;
13.5 The client had insisted on paying cash, which is
unusual. The applicant denies being at the warehouse on the Saturday
to receive
and facilitate the shipping of the goods.
13.6 The applicant has only erred in completing
documents in a proper manner which would justify nominal disciplinary
action short
of dismissal;
13.7 The applicant denies that the cargo contained
perlemoen- it was never shown to him. It is further not normal or
required to
examine the contents of client’s sealed packages
and respondent accepts the nature of good as disclosed by clients;
13.8 The minutes of the dismissal hearing are
inaccurate and fail to capture important issues raised by the
applicant. These minutes
ought to be ignored;
After the Applicant’s dismissal the Respondent
preferred criminal charges against him. Applicant was acquitted on
both counts
at the Criminal trial (Case Number: 2SH160/05). The
Court made the observation that Mr Adams, of the Respondent, became
suspicious
for a Number of reasons including the fact that the
Applicant (the accused at the criminal trial) worked on a Saturday
and took
a cash payment whereas Digistix and the Respondent had a
thirty day account arrangement. The court went on further to observe
this, on pages 106-107 of the judgement;
“
Well the evidence which we
heard from the various witnesses is that it is against the company
policy for the accused and all those
working at the Airport to know
of the contents of the specific package shipped. In fact it is said
that you had to rely on the
information as supplied to you by the
client….
In my view the state must prove that the accused knew
what was contained in the two boxes which were hipped to Dubai and
that he
falsely wrote that it is frozen vegetables when actually
do(sic) when there is illegal goods inside the two boxes. Well taking
in into account that the accused was not allowed to have a look of
the contents of the two boxes it will be very much difficult
to hold
that the accused knew what was inside the two boxes shipped to Hong
Kong via Dubai.
So on that basis I have to agree with the defence
that there cannot be said that there is a prima facie case against
the accused.
There are quite a number of other grounds upon which I
may have to agree with the defence but I think that one it is a main
one
I which I wish to base my decision on. Well on the second count
the state apparently is agreeing that its case against the accused
on
the second count it is not strong. In this matter two boxes, two
large boxes were shipped to Hong Kong via Dubai.
When suspicions arose there was an order that the two
boxes must be returned back to Johannesburg International. 30 boxes
were received
at the Johannesburg International Airport. Well there
is no link between the two boxes that was shipped in the first place
to Hong
Kong via Dubai and the boxes that were later returned to
Johannesburg. It has also not been proved that the contents of the
two
boxes that went to Dubai contained Abalone and that they were the
same boxes that came back to South Africa.
So for these reasons I am of the opinion that the
accused must be discharged on both accounts and the order I make is
that on both
counts the accused is not found guilty
NOT
GUILTY DISCHARGED.
In his award the Commissioner on page 7 states that;
“
19) I found the minutes of
the internal hearing to be, on the balance of probabilities,
authentic and consistent with the witnesses’
testimony. The
applicant’s bland denial of certain significant parts,
including that it was never put to Cooper that Cooper
authorised the
consignment, was unconvincing;
The applicant has denied that the cargo was
perlemoen. His denial is based on the fact that the cargo was
never shown to him.
I accept that he has no direct knowledge of
the cargo. However, Adam testified without rebuttal that no
queries were ever
raised by any person pertaining to the
non-arrival of the consignment at the Hong Kong address. That it
was an illegal cargo
is probable, and I have no reason to
disbelieve respondent’s testimony on the actual content;
In spite of my prompting, no explanation was
offered by the applicant why respondent’s witnesses would
fabricate their
testimony which led to applicant’s dismissal
to the extent of applicant actually being dismissed and with a
criminal
case pending- it is logical and probable that the same
witnesses will testify to the same issues in court;
Proof of misconduct frequently has to be proved by
the drawing of inference from proved facts, as opposed to, say,
mere speculation.
In the Appellate Division matter in
AA
Ondelinge Assuransie Bpk v De Beer(1982);
it was found that
“…something will be proved in circumstantial evidence
when (1) The inference to be drawn is
consistent with all the
facts proved, and (2) The inference to be drawn is the most
plausible inference..” Circumstantial
evidence therefore
amounts to proof of guilt as inferred from a chain of proved
circumstances, and the selected inference
must, by the balancing
of probabilities, be the more natural or plausible conclusion from
two or more conceivable ones.
The applicant was charged with and dismissed for
fraudulent completion of documents, failure to follow due
processing the
completion of the documents, and bringing the
respondent’s name into disrepute with customs(sic). The
preponderance
of evidence and testimony before me causes me to
find, on the balance of probabilities, that he respondent has
proven its
case in that the applicant committed gross misconduct;
I have been persuaded that the applicant’s
actions had rendered a continued employment relationship
intolerable and
that dismissal was appropriate.”
One has to compare the findings of the Criminal Court
and the findings of the Commissioner. It should be borne in mind
that the
criminal case was still pending when the Commissioner made
his decision. The two decisions therefore, had no impact on each
other.
They were made independently of each other. Moreover, the
standard in criminal cases is higher than applied at arbitration.
Guilt
in criminal cases is “
beyond reasonable doubt
”
and at arbitration it is “
on a balance of probabilities”
test.
I can not find the reasoning of the Commissioner to
have been misled. He worked with the evidence before him and came to
a reasonable
conclusion. I cannot substitute my knowledge of the
outcome of the criminal case on the Commissioner. His award is well
reasoned.
The test for review as set out in
Sidumo and others
v Rustenburg Platinum Mines &others
(2007) 12 BLLR 1097(CC)
is
whether the decision arrived at by the Commissioner is one that no
other decision maker would not have arrived at. The Commissioner
has
considered all the facts and circumstances in his analysis of the
parties’ evidence and argument. The Commissioner’s
award
does meet the standard of reasonableness that is required in review
applications.
In
Sidumo(
supra)
it was stated
that;
“
To sum up in terms of the
LRA, a commissioner has to determine whether a dismissal is fair or
not. A commissioner is not given the
power to consider afresh what he
or she would do, but simply to decide whether what the employer did
was fair.”
I find that the Commissioner did understand the issues
before him and made a reasonable decision and found, appropriately,
in
favour of the Respondent.
Applying the “
balance of probabilities”
test to the circumstances of the case before him the
Commissioner found that there were anomalies regarding the behaviour
of the
Applicant in relation to the transactions that resulted in
his dismissal. This, he found, was sufficient to uphold the
dismissal
of the Applicant. Although the Applicant does seek to rely
on the fact that he was acquitted of the charges against him by the
Criminal Court, it is my view that the acquittal was based on a
standard that is not applicable at arbitration. The arbitration,
moreover, preceded the criminal case.
On this ground for review, as set out in the applicant
in his application, I cannot find any reasons for review or
interfere with
the award.
The last ground for review as set out in the
Applicant’s Heads of Argument and Applicant’s Founding
affidavit is that
the Second Respondent committed a reviewable
misconduct by awarding costs on an attorney and own client scale
against me for
what he referred to as a frivolous and vexatious
referral without any basis of bad faith on my part in referring the
dispute
in question
.
This is the only part of the Commissioner’s award
that I have a problem with. The Commissioner in his award, at
paragraph
25,3, concludes thus;
“
I herewith award costs
against the application in favour of the respondent on an
attorney/client Magistrate-court scale for the
two days of the
arbitration and payable within four weeks of the applicant receiving
this award.
Section 138(10) of the Labour Relations Act provides as
follows;
10)
The commissioner may make an order for the
payment of costs according to the requirements of law and fairness in
accordance with
rules made by the Commission in terms of section
115(2A) (j) and having regard to-
a) any relevant Code of Good Practice issued by
NEDLAC in terms of section 203;
b) any relevant guideline issued by the Commission.
[Sub-s. (10) substituted by s: 27(b) of Act 12 of
2002.]
There is nothing in the Applicant’s referral that
suggests that he did not believe that he had been unfairly
dismissed.
He actually testified that he could not be held
responsible or liable for the cargo that was returned from Dubai as
he had not
been allowed to see its contents. This alone made him
convinced that he stood a chance of being exonerated at arbitration.
His
was not an entirely “lost case”.
Much as most parts of the Commissioner’s award is
reasonable the cost order leaves much to be desired. There is no
justification
for what the Commissioner sets out save to say that
“
there was overwhelming evidence against the Applicant”
.
The question to be asked is whether this makes the referral
vexatious. In my view it does not.
An attorney and client cost order opposing entitles the
party in whose favour it is made to recover more from the party than
he
or she would be able to recover on a party and party scale.
Clearly this means that such costs are punitive. This approach is
reserved for exceptional circumstances as was held in
Reid v
Royal Insurance Co Ltd 1951(1) SA 713(T).
The approach of the courts in recent years are in
favour of the principle that persons should not be deterred from
enforcing their
rights because they fear that they will have to pay
their opponent’s costs as well as their own if they do not
succeed.
In
Hlatshwayo and other v Hein 1998(1) BCLR 123 (LCC)
the Land Claims held that:
“
it does not regard itself
as bound to follow the usual approach of the superior courts in
awarding costs and that it will give due
weight to the constitutional
obligation to promote the fundamental right to access to the courts
in such a was that legitimate
litigants will not be deterred from
approaching the court to have disputes settled for fear of an adverse
costs order.”
In the instant case there was no proof of frivolity or
vexatiousness on the part of the Applicant. The only correct
conclusion
to be drawn is that the Commissioner misdirected himself
in his award of attorney and client costs. The principle in the
Hlatshwayo
case
(supra)
is applicable in the instant case.
The doors of the CCMA should not be closed to the public out of the
public’s fear that
they might end up with a costs order
granted against them.
For the aforestated reasons the costs order against the
application stands to be reviewed and set aside.
For the aforegoing reasons I make the following order:
Paragraphs 25.1 and 25.2 of the Commissioner’s
award are upheld.
Paragraph 25.3 of the Commissioner’s award is
reviewed
and set aside. It is substituted by the following:
“
No order as to costs is
made.”
I make no order as to costs.
__________________
N. CAWE
Acting
Judge of the Labour Court
APPEARANCES:
For the
Applicant: Adv. P M W Botha
(Pro Bono)
Instructed
by SDV Attorneys
For the
Respondent: A.
J. Posthuma
Instructed
by Snyman Attorneys
Date of
hearing: 27 May 2011
Date of Judgement: 01 July 2011