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[2011] ZALCD 19
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Royappen v Statutory Council for the Printing Newspaper and Packaging Industry and Others (D576/06) [2011] ZALCD 19 (14 January 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN DURBAN
Case No. D576/06
Not Reportable
In the matter between:
PHILLIP ROYAPPEN
......................................................................................
Applicant
And
STATUTORY COUNCIL FOR
THE PRINTING
NEWSPAPER AND
PACKAGING INDUSTRY
.....................................
1
st
Respondent
COMMISSION FOR
CONCILIATION MEDIATION
AND ARBITRATION
.............................................................................
2
nd
Respondent
DEAN ISAACS N. O.
.............................................................................
3
rd
Respondent
CORRUSEAL CORRUGATED
KZN (PTY) LTD
...................................
4
th
Respondent
JUDGMENT
_____________________________________________________________________
Gush J
The applicant was
dismissed by the 4
th
respondent following a disciplinary
enquiry at which enquiry the applicant was accused and found guilty
of “
Theft of a fellow employee’s property or
alternatively misappropriation of a fellow employee’s
property
”.
The applicant referred
his dismissal to the 1
st
respondent who appointed the 3
rd
respondent to arbitrate the dispute. At the conclusion of the
arbitration the 3
rd
respondent made the following award:
2.1. “
The
application fails.
2.2. The Applicant’s
dismissal is substantively fair.
2.3. There is no order
as to costs”
It is this award that
the applicant applies to have reviewed and set aside.
The background to the
dispute was as follows:
4.1. The applicant was
employed by the 4
th
respondent as a dispatch coordinator;
4.2. At the time of the
incident, the 17
th
February 2006 (a Friday), the applicant
was working night shift;
4.3. Towards the end of
his shift the applicant went to the 4
th
respondent’s
administration offices where he removed a folder containing pens and
notes belonging to another employee from
her desk. The applicant took
the folder placed and it out if sight of the security camera and
returned later with his bag, placed
the folder in his bag and took it
home.
4.4. On the Monday the
employee who worked in the office and to whom the folder belonged
discovered that her folder which she had
left on her desk was
missing. She sent out an email on the 4
th
respondent’s
intranet to which all employees had access asking whether anyone had
seen her folder which contained two pens,
(one of which had
sentimental value as it was a pen presented to her by her former
colleagues when she had left her previous employment)
and various
documents including an email addressed to her. There had been no
response to the email and she had requested the assistance
of a
colleague Mr. Vawda.
4.5. The office was
equipped with a surveillance camera and Mr. Vawda obtained the video
footage of the office for the relevant
period including the night
shift on the 17
th
February. When he viewed the tape the
footage revealed the applicant walking around the offices, picking up
the folder zipping
it closed and proceeding to an area out of view of
the camera. The applicant thereafter reappeared and returned into
view but without
the folder. The tape then showed the applicant later
returning to the office carrying his bag. The applicant again moved
to the
area out of view of the camera and when he reappeared he had
his bag on his back. The applicant looked around the office and left.
4.6. As a result Vawda
called the applicant and asked him if he had any knowledge of the
folder and its disappearance. The applicant
initially denied any
knowledge of the disappearance of the folder and the email that had
been sent out regarding its disappearance.
However when confronted
with the video recording the applicant admitted that he had removed
the folder.
4.7. The applicant’s
explanation was that he had removed the folder in order to teach a
Mr. Lander, who worked in the administration
office, a lesson. The
applicant told the 4
th
respondent that he believed that
Lander was negligent in leaving his folder on the desk and not
locking it away and therefore he
had removed it.
4.8. On the Wednesday,
the 22
nd
February, the applicant who had still not
returned the folder fetched it from his home and returned the folder
to the 4
th
respondent’s premises. He blamed his son
for not returning it sooner alleging that his son had removed the
folder from his
bag.
4.9. The applicant was
charged with “
Theft of a fellow employee’s property or
alternatively misappropriation of a fellow employee’s property
”
found guilty and was dismissed. The applicant availed himself of the
4
th
respondent’s appeal process but his appeal was
unsuccessful.
4.10. The applicant
referred his dismissal to the 1
st
respondent who appointed
the 3rd respondent to arbitrate the dispute
Mr. Haralambous, who
appeared for the applicant, confined the applicant’s grounds
of review to the allegation that the 3
rd
respondent was guilty of
committing a gross irregularity in the conduct of the arbitration
proceedings and/or misconducted himself
in relation to his duties as
an arbitrator
1
in that the 3
rd
respondent had:
5.1. Prior to the
arbitration had told the applicant in private that since he, the
applicant, did not have his witnesses present
that he would not be
able to call them and may not even refer to them in his evidence; and
5.2. Failed to properly
assist the applicant (who was unrepresented) during the arbitration
specifically that the 3
rd
respondent should have
subpoenaed the applicant’s witnesses or advised him that he
could subpoena witnesses if they were
not present.
Mr. Haralambous
correctly conceded that save for the above averments the 3
rd
respondent’s award
was not reviewable. The award and the record clearly shows that the
decision of the 3
rd
respondent was one that
a reasonable decision maker could come to based on the evidence
before him.
The
question therefore was whether the 3
rd
respondent in fact told
the applicant in private that as his witnesses were not present he
could not call them and may not even
refer to them in his evidence
and whether such conduct coupled with the 3
rd
respondent’s
failure to advise the applicant of his right to subpoena witnesses/
subpoena them himself amounted to a gross
irregularity and
misconduct justifying the setting aside of the award.
2
Both parties referred to
a number of cases dealing with the duties of an arbitrator when
faced with an unrepresented party and
the extent to which an
arbitrator is obliged to assist the parties.
3
A common thread which
runs through these cases is that in each instance it is the specific
circumstances of each matter that determines
the extent to which the
arbitrator is required to come to the assistance of a party to the
arbitration.
In this matter the
applicant relies on two grounds of review pertaining to the averred
misconduct. The first is the suggestion
that the 3
rd
respondent privately advised the applicant that he was not entitled
to call his witnesses as they were not present and that he
could not
call them he may not even refer to them. The second ground is
dependant upon the applicant having established that
the 3
rd
respondent in fact so advised him. If the 3
rd
respondent
was not made aware of the applicants desire to call witnesses he
could not be expected to either to assist the applicant
by telling
him of his right to subpoena witnesses or in deed to subpoena them
himself.
The record of the
arbitration in no way suggests that the applicant indicated that he
had witnesses that he wished to call and
that they were not present
or that the 3
rd
respondent in any prevented the applicant
from calling witnesses.
In order to succeed the
applicant therefore the applicant is required to establish on a
balance of probabilities that the 3
rd
respondent
committed the conduct of which he complains.
As the so-called
misconduct, which the applicant avers the 3
rd
respondent
is guilty of, took place in private it is necessary therefore in
determining whether on a balance of probabilities
the 3
rd
respondent committed the misconduct of which the applicant accuses
him, to consider the circumstances surrounding the applicants
conduct and his actions at the time of and immediately after the
arbitration.
The applicant’s
explanation of his conduct on the night of the 17
th
February 2006 and thereafter is so improbable that it defies belief.
Inter alia, the applicant admits having removed the folder
in the
circumstances shown in the security video footage and suggests that
he picked up a folder on a desk in the administration
office, which
he then zipped up and removed it as a prank on a colleague. He does
not offer any explanation why he didn’t
check to see whether
in did in fact belong to his colleague and why it was necessary to
surreptitiously remove the folder if
this was merely a prank and why
he did not simply take the folder with him when he left the office
the first time. It was only
when confronted with the video evidence
that he confessed. He explained that he intended to return the
folder on the Monday but
blamed his son for not doing so by
suggesting that his son removed the folder from his bag.
In support of his
averment that the 3
rd
respondent prevented him from
leading evidence, the applicant refers in his affidavit to the 3
rd
respondent’s award where the 3
rd
respondents
records that the applicant failed to lead evidence of Lander in
support of his “
contention
” that it had all been
a prank, and makes the averment that he had specifically told the
3
rd
respondent before the commencement of the arbitration
that Lander “
was a potential witness
”
However this averment
must be considered in the light of a detailed letter the applicant
included in his bundle of documents.
This letter, which he faxed to
the 1
st
respondent, purports to be a “
Grievance
against award on case no. PNPI 160 (Phillip Colin Royappen and
Corruseal)
(sic). This document which Mr. Haralambous confirmed
was drafted by the applicant was received by the 1
st
respondent on the 21
st
July 2006. The arbitration award
is dated the 10
th
July 2006 and was received by the
applicant on the 18
th
July 2006.
In this document the
applicant recorded in detail his concerns regarding the conduct of
the arbitration. In particular the applicant
specifically recorded
what transpired during the attempt by the 3
rd
respondent
to conciliate the matter which was when the 3
rd
respondent is alleged to have committed the misconduct. Conspicuous
by its absence is any mention whatsoever of any discussion
of
witnesses which the applicant wanted to call, or who were not
present. In fact nowhere in this document which was obviously
carefully prepared (and contains references to decided cases) does
the applicant refer to any witnesses he wished to call or
any
conduct by the 3
rd
respondent regarding his witnesses
which he found to be unacceptable.
Weighing up the
probabilities it is highly improbable that the 3
rd
respondent would have specifically advised the applicant that as his
witnesses were not present that he could therefore not secure
their
attendance, may not call them and would not be allowed to even refer
to them and then refer in his award to his failure
to call his
witnesses as one of his grounds for dismissing his application.
Given that there is no
reference in the award or record to any witnesses that the applicant
wanted to call or any suggestion that
they were not present or that
he was prevented from calling them it is altogether too convenient
that the applicant avers that
he was advised by the 3
rd
respondent in private that he may not even refer to his witnesses.
I am not satisfied that
the applicant has established on a balance of probabilities that the
3
rd
respondent was guilty committing misconduct in
relation to his duties nor that he committed a gross irregularity in
the conduct
of the arbitration.
I accordingly dismiss
the applicant’s application with costs.
____________
GUSH J
Date of hearing : 11
th
November 2010
Date of judgment : 14
th
January 2011
APPEARANCES
For the Applicant : Mr.
Haralambous of Haralambous Attorneys
For the 4
th
Respondent : Mr. Forster of Forster Atorneys
1
s145(2)(a)(i)
and (ii) of the
Labour Relations Act 66 of 1995
2
Section
145(2)
of the
Labour Relations Act 66 of 1995
.
3
Bafokeng
Rasimone Platinum Mine v CCMA and others JR1734/03 (unreported);
Dhlamini and others v Faraday Wholesale Meat Supply
[1999] 8 BLLR
771
(LC);Scholtz v Maseko NO & others
[2000] 9 BLLR 1111
(LC);
Reunert Industries (Pty) Ltd t/a Reutech Defence Industries v
Naikjer & others
[1997] 12 BLLR 1632
(LC)Sasko (Pty) Ltd v
Buthelezi & others
[1997] 12 BLLR 1639
(LC); and A A Ball (Pty)
Ltd v Kolisi & another
[1998] 6 BLLR 560
(LC).