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[2011] ZALCJHB 113
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Transnet Rail Engineering Ltd v Transnet Bargaining Council and Others (JR 2191/09) [2011] ZALCJHB 113; (2012) 33 ILJ 1481 (LC) (1 December 2011)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JR 2191/09
In the matter between:
TRANSNET RAIL ENGENEEERING BLTD
….........................................................
Applicant
and
TRANSNET BARGAINING COUNCIL
….....................................................
First
Respondent
W.
de J. STAPELBERG
N.O
…..............................................................
Second
Respondent
UNITED TRANSPORT AND ALLIED
TRADE UNION
…........................................................................................
Third
Respondent
HERMAN ROSSOUW
…..........................................................................
Fourth
Respondent
Date of hearing: 18 August 2011
Date of judgement: 1 December 2011
Summary: Review Application.
Dismissal for theft. Defence kleptomania. Commissioner equating
kleptomania to alcoholism. Duty of
Commissioner to scrutinise expert
evidence.
JUDGMENT
Molahlehi J
Introduction
This is an application for review and
set aside of the arbitration award issued by the second respondent
(the arbitrator) under
case number TOKISO/T9/063 in terms of which
the dismissal of the fourth respondent was found to have been
unfair.
Background facts
The fourth respondent (the
respondent), who was employed in the finishing section of the
applicant, was found with two copper
fittings which fell to the
ground at the time he was searched. The search was carried out as
the respondent was leaving the workplace
at knock off time.
The respondent was charged for
unauthorised possession of the applicant’s property. The
applicant was found guilty and dismissed.
However, being unhappy
with the outcome of the disciplinary hearing the respondent referred
a dispute concerning an alleged unfair
dismissal to the first
respondent.
At the arbitration hearing the
applicant called Mr Wessie, the security officer who conducted the
search on the day in question
to testify. He testified that on the
day in question the respondent initially refused when he requested
to search him. It was
only when he was told that he would not be
allowed to leave the premises that he then agreed to be searched. Mr
Wessie further
testified that two copper fittings fell on the ground
as the respondent was handing his jacket to him.
The respondent did not dispute that
he was found with the copper in which he was charged for on the day
in question but contended
in his defence that he took the item
because of the urge he had which was caused by the condition known
as kleptomania, that
he was suffering. He stated that he picked the
two pieces of the copper which he found lying all over the
applicant’s premises.
He further stated he could not recall
how he got possession of the two copper pieces.
In support of his version that he was
a kleptomaniac, the respondent submitted a letter from Dr Fourie, a
psychologist that he
had been seeing since August 2007. In the
letter, Dr Fourie stated that he or she had been seeing the
respondent since 17 August
2009 due to stress.
Grounds of Review
The applicant contends that there was
no basis for the finding made by the arbitrator, in particular in
relation to comparing
kleptomania with alcohol abuse. The applicant
contends that the arbitrator failed to properly apply his mind to
the facts which
were before him and committed misconduct as an
arbitrator in relying on the University report whose authors are
unknown. In this
respect the applicant submitted that the arbitrator
ignored the rules of evidence. The arbitration award is criticised
for several
weaknesses listed in the founding affidavit.
Arbitration award
The arbitrator found that the
dismissal was procedurally fair and what he had to deal with was the
substantive aspect of the fairness
or otherwise of the dismissal. In
arriving at the conclusion that the dismissal was unfair, the
arbitrator compared kleptomaniac
with alcoholism, and observed that
if found to exist then it (kleptomaniac) had to be treated in the
same way as an alcoholic
person. In other words, the employer has to
treat kleptomania as incapacity based on ill-health. In this respect
the arbitrator
says:
‘
Many
companies especially in a factory environment, have rules to state
that being present at work under the influence of alcohol
is a
dismissal offence and many are fairly dismissed for contravening such
a rule. If however a defence is raised that the specific
employee is
an alcoholic or his drinking has become a problem, such a employee is
not dismissed but is issued with a written warning
or final written
warning and is sent for compulsory treatment. Even if experience
taught us that treatment is usually not very
effective this is still
endorsed by our courts as a way to fairly deal with these problems.
The defence raised by Herman that he
is suffering from Kleptomania is
very similar to the example of alcohol abuse. A letter from the
psychologist as well as a report
from the University of Free State
indicates that Herman is benefiting from the treatment and the
medication.’
The arbitrator then notes that the
employee had been referred to National Institute For Crime
Prevention and the Reintegration
of Offences (NICRO). He then in his
assessment took into account the report from NICRO which according
to him indicated that
the criminal charge against the employee was
withdrawn and further that the employee now understands that he was
responsible
for his actions and choices in life.
In applying the principle of
progressive discipline, the arbitrator observed that the medication
which the employee was receiving
was having positive effect on him
and that his behaviour was changing.
As concerning the trust relationship
between the parties after the incident, the arbitrator found that it
had not broken down
because the respondent’s supervisor
testified at the hearing that the respondent was helpful and that he
never had any
problem with him.
The arbitrator further found in
relation to the two copper pieces that they were scrap, because the
applicant had failed to prove
that they were new. It was on these
bases that the arbitrator found that the respondent was guilty of
not following the correct
procedure to take the scrap out of the
gate of the applicant’s gate.
Evaluation
The test to apply
in considering whether an arbitration award is reviewable is that of
a reasonable decision maker as stated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
1
and the subsequent
cases that followed thereafter.
In this matter the key issue is
whether the arbitrator applied the rules of evidence properly. In
this respect the following need
consideration:
‘
2.1
whether or not Dr Miemie’s report and/or University of Free
State’s report constituted admissible evidence at the
arbitration;
2.2
whether or not Dr Miemie’s report and/or University of Free
State’s report established that the Fourth Respondent
was a
Kleptomaniac;
2.3
whether or not there was sufficient evidence presented before the
arbitrator to establish that the Fourth Respondent was a
Kleptomaniac;
2.4
whether or not the penalty of dismissal was too harsh;
2.5
whether or not the Fourth Respondent’s reinstatement with 3
month’s back pay was appropriate.’
It is common cause that the
respondent’s bag and helmet were searched and nothing was
found therein. He initially refused
to have his jacket searched and
when he finally gave in, he was found in possession of the copper
fittings.
It is further common cause that after
being found with the copper the respondent was arrested and charged
with the theft of the
copper. In the magistrate’s court, the
respondent pleaded guilty and was referred to NICRO where he did 30
hours community
service.
The employee’s defence which he
raised only during cross examination was that he was suffering from
kleptomania. In general,
kleptomania is defined as:
‘
The
uncontrollable impulse to steal items of no real sense or value to
the thief.’
The testimony of the applicant’s
witness was in general not challenged and more importantly he did
not challenge the testimony
of the applicant’s witness who
says when he was found with copper his defence was that he was set
up by a black person
who previously had a conflict with. However,
under cross-examination he conceded that kleptomaniac does not blame
others for
stealing. He also conceded that he underwent kleptomaniac
treatment for the first time after his dismissal.
In my view had the arbitrator applied
his mind properly to the above common cause facts, he ought to have
found that the applicant
had established a case to answer by the
respondent. In other words the respondent had a case to answer
failing which that applicant
would be regarded as having discharged
its duty of showing that the dismissal was for a fair reason.
In answering to the case of the
applicant, the respondent had to put forward a defence. If there is
a rule, which is reasonable,
known or ought to be known, the defence
of the respondent could have been a denial or an explanation
justifying why he was in
unauthorised possession of the cables.
The defence put forward by the
respondent as indicated earlier in this judgement is that he suffers
from kleptomania. Accepting
the definition set out above, what was
required of the arbitrator was to assess whether, firstly,
admissible evidence to sustain
the defence of the respondent has
been placed before him; and, secondly, whether indeed the respondent
suffered kleptomania.
The first issue in the assessment of
the evidence of the respondent’s case is the admissibility of
the evidence of Dr Miemie
of the University of the Free State. The
evidence was presented in the form of a report. This report, it
would appear was submitted
to prove the health condition of the
respondent. The report served before the Commissioner as an expert
opinion on the condition
of the respondent.
In admitting this
evidence, the arbitrator ought to have applied the principles
governing admissibility of expert opinion. The
principles governing
admissibility of expert opinion was stated in
Holtzhauzen
v Roodt,
2
where the Court
held:
‘
a)
firstly, the witness must be called to give evidence on matters
calling for specialised skill or knowledge;
b)
Secondly, we are accustomed to receiving the evidence of
Psychologists and Psychiatrist, particularly in our criminal court.
However, we should not elevate the expertise of the witness to such
height that we lose sight of the courts own capabilities and
responsibilities;
Thirdly,
the witness must be a qualified expert;
Fourthly,
the facts upon which the expert opinion is based must be proved by
admissible evidence. These facts are either within
the personal
knowledge of the expert or on the basis of facts proved by others;
Fifthly,
the guidance offered by the expert must be sufficiently relevant to
the matter in issue which is to be determined by
the court;
Finally,
opinion evidence must not usurp the function of the court. The
witness is not permitted to give opinion on the legal
or general
merits of the case.’
It is apparent from the record that
no expert witness or for that matter any witness was called to
testify about the reports.
Those who compiled the reports were never
called to testify, firstly about their qualification, and
experience, to be able to
claim to be experts and secondly on what
basis did they arrive at the conclusion that the respondent was
suffering from kleptomania.
There can be doubt in my view, that
in relying on the reports of Dr Mienie and/or the University of the
Free State reports, the
arbitrator committed gross irregularity and
exceed his powers. It would appear from the reading of the
arbitration award that
the arbitrator did not only accept as
evidence the medical reports which were submitted on behalf of the
respondent but also
regarded the opinion expressed therein as
binding on him without having to evaluate the conclusions reached.
In this respect,
the arbitrator abdicated his responsibility of
having to scrutinise such evidence to determine whether the
conclusion reached
could be logically supported by other evidence
which would make the conclusion sustainable.
In other words the
question of whether the respondent suffered from kleptomania is one
which the arbitrator had to determine on
the basis of the evidence
before him. Assuming that the reports were to be regarded as
admissible evidence then the duty of the
arbitrator was examine the
opinions expressed in the reports, evaluates them and made his own
conclusion on the issues raised.
The arbitrator was supposed to
evaluate the opinions expressed in the reports to determine whether
the opinion that the respondent
was kleptomaniac was based on
logical reasoning in light of all the evidence before him. It does
seem to me that the only way
that the arbitrator could have
appreciated the extent and the implication of the opinions expressed
in the medical reports was
to have the expert who developed the
reports to come to the arbitration hearing and explain the
conclusions reached therein.
In
Schneider
NO and Others v AA
,
3
the Court per
Davis J held that an expert witness comes to court to give the court
the benefit of his or her expertise.
In
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another,
4
the Supreme Court
of Appeal, in dealing with the approach to be adopted when dealing
with expert opinion held that:
‘
The
court is not bound to absolve a defendant from liability for
allegedly
negligent
medical treatment or diagnosis just because evidence of expert
opinion,
albeit genuinely held, is that the treatment or diagnosis in issue
accorded
with sound medical practice. The court must be satisfied that such
opinion
has a logical basis, in other words that the expert has considered
comparative
risks and benefits and has reached “a defensible conclusion.’
5
At para 39 of the judgment the SCA
further said:
‘
A
defendant can properly be held liable, despite the support of a body
of professional opinion sanctioning the conduct in issue,
if that
body of opinion is not capable of withstanding logical analysis and
is therefore not reasonable.’
In
Media 24 Ltd
and Another v Grobler
,
6
the SCA per Farlam
JA held that:
‘
In
my view, the traumatic incident which I have found did occur
was
sufficiently severe, on the probabilities, to have complied with
Criterion A1. In this regard it is important to bear in mind the
distinction between the scientific and the judicial measures of proof
. . . ’
The risk of
looking at expert evidence without scrutinising its logic and
efficacy was expressed by Tshiqi JA in
Mutual
and Federal Insurance Co Ltd v SMD Telecommunication CC
7
and
quoting with approval what was said in
Dingley
v The Chief Constable, Strahclyde
,
8
where it was held
that:
‘
(o)ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved -
instead of assessing, as a Judge must do, where the
balance of
probabilities lies on a review of the whole of the evidence.’
The reading of the reports does not
provide any factual basis upon which a reasonble conclusion could be
reached that the respondent
suffered kleptomania. The report of Dr
Mienie amongst others states:
‘
In
view of the recent incident where a kleptomania incident, without
pre-planning for personal gain, a senseless action-resulted,
specific
desensitisation will be offered.’
The University report makes no
mention of the respondent being kleptomaniac. The case of the
respondent is also not helped by
his own testimony. His version is
riddled with contradictions and inconsistencies. His initial
response, at the time he was searched,
was that he had been set up
by someone. In this respect he testified as follows:
‘
As
I say, they asked me what is it and where is it coming from. I say I
do not know, I think it is a set-up.’
The respondent
belatedly
sought to suggest that the offence was not serious
enough to warrant a dismissal because the value of the copper and
stated that
it was below the value of the R400.00 placed on it by
the applicant. He however testified that he was told at the
Magistrate
Court that the value of the copper was R900.00.
In my view, had the arbitrator
properly applied his mind, he ought to have found that the defence
raised by the respondent was
an afterthought and that the respondent
was accordingly guilty of contravening a known and reasonable rule
of the workplace.
In relation to the issue of the
breakdown of trust, the arbitrator misconceived this issue. The
facts before him had very little
to do with the working relationship
between the respondent and his supervisor. The issue before the
arbitrator concerned the
dishonest conduct of the respondent.
Because of misconceiving the issue, the Commissioner failed to
appreciate that dishonesty
is the core to the trust relationship.
In my judgment, had the arbitrator
appreciated the issue before him, he ought to have found that it
would be unfair to expect
the applicant to retain an employee, who
when initially asked to be searched, resisted, and once found in
possession of the copper
he sought to blame someone else. He later
seeks to suggest that he was entitled to remove the copper because
it was scrap. Further,
when he realised that his excuse is
unsustainable as an afterthought, he resorted to concoct a defence
in the form of kleptomania.
It to be noted that there is no evidence
that the respondent has in the many years that he has been employed
by the applicant
ever been accused of theft. There is also no
evidence that the respondent has ever been charged outside the
workplace with theft.
There is no doubt
in my view the respondent breached the trust between him and the
applicant. The length of service which the
respondent had with the
applicant did not assist his case in terms of the sanction. In
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others,
9
the Court in
dealing with the issue of the length of service had the following to
say:
‘
The
presence of dishonesty tilts the scales to an extent that even the
strongest mitigating factors, like long service and a clean
record of
disciple are likely to have minimal impact on the sanction to be
imposed. In other words whatever the amount of mitigation,
the
relationship is unlikely to be restored once dishonesty has been
established in particular in a case where the employee shows
no
remorse. The reason for this is that there is a high premium placed
on honesty because conduct that involves corruption by the
employees
damages the trust relationship which underpins the essence of the
employment relationship.’
The final issue to consider concerns
the fairness of the sanction imposed by the applicant. In this
respect the length of service
of the employee in relation to the
fairness of the sanction has received attention in a number of
cases. Whilst the long service
that the respondent had with the
applicant may serve as a factor in reducing the severity of the
sanction it may also serve as
a factor in the converse.
In
Toyota
SA Motors v Radebe and Others,
10
the
Court held
:
‘
Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty.’
In light of the above, I am of the
view that the arbitrator’s arbitration award stands to be
reviewed. I find that it was
unnecessary for the respondent to have
opposed this application and accordingly I belief the costs should
follow the results.
In the premises, the following order
is made:
The arbitration award of the second
respondent is reviewed and set aside.
The second respondent’s
arbitration award is substituted with an award to the effect that
the dismissal of the fourth respondent
was for a fair reason and
accordingly his claim for unfair dismissal is dismissed.
The fourth respondent is to pay the
costs of these proceedings.
___________________
Molahlehi J
Judge of the Labour Court of South
Africa
Appearances:
For the applicant: Mr P. Maserumule of
Maserumule Inc.
For the respondent: Mr X Ngako of Ruth
Edmonds Attorneys
1
(2007)
28
ILJ
2405 (CC)
2
1997
(4) SA 766
(WLD) at 772C – 773C.
3
2010
(5) SA 203
(WCC)
4
2001
(3) SA 1188
(SCA)
at para 37.
5
The
same approach has been followed by the English Courts. See
Bolitho
v City and Hackney Health Authority
[1997] UKHL 46
;
[1998]
AC 232
(HL) a case which was followed by the Supreme Court of Appeal
in the
Michael And Another
supra. An example of an instance where the
evidence of an expert witness was scrutinised by the Court, found to
have significant
problems and rejected for lack of credibility and
expertise can be found in the judgment of Davis J in
Schneider
v AA
2010 (5) SA 203
(WCC) at page
213E-F. See also
Minister van
Veiligheid and Sekuriteit v Geldenhuys
2004
(1) SA 515
(HHA) at para 38 Representative of
Lloyds
v Classic Sailing Adventures
2010 (5)
SA 90
(SCA) at para 60.
6
2005
(6) SA 329
(SCA) at para 59.
7
2011
(1) SA 94
(SCA) at para 40.
8
2000
SC (HL) 77
9
[2007] ZALC 93
;
[2008]
3 BLLR 241
(LC) at para
[42]
.
10
(2000)
3 BLLR 243
(LAC) at para [15].