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[2011] ZALCD 15
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Fuel Logistics Group (Pty) Ltd v Stephens NO and Others (D902/08) [2011] ZALCD 15 (29 June 2011)
PATHER
A.J
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Not
Reportable
Case
no: D902/08
In
the matter between:
THE
FUEL LOGISTICS GROUP (PTY) LTD
............................................
APPLICANT
AND
STEPHENS
W N.O.
......................................................................
FIRST
RESPONDENT
NATIONAL
BARGAINING COUNCIL FOR THE
ROAD
FREIGHT INDUSTRY
................................................
SECOND
RESPONDENT
SATAWU
.....................................................................................
THIRD
RESPONDENT
MBULANE
A B &1 OTHER
..................................................
FOURTH
RESPONDENT
Date
of Hearing: 14 June 2011
Date
of Judgment: 29 June 2011
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
PATHER
A.J
Introduction
This
is an application in terms of section 158 (1) (g) of the Labour
Relations Act (“the Act”)
1
to
review and set aside an arbitration award issued by the first
respondent, as a commissioner (“the commissioner”)
of
the second respondent. The commissioner found that the fourth
respondents’ dismissal was unfair and ordered the applicant
to
reinstate them retrospectively from the date of their dismissal
being 12 October 2007. The applicant was further ordered to
pay
backpay to the fourth respondents in the amount of R33 150.38 each.
The third respondent opposes the review application despite
not
having filed an answering affidavit.
Background
Facts
After
the fourth respondents were dismissed from the applicant’s
employ on 12 October 2007 for committing acts of misconduct,
including damage to the company’s property, they referred an
unfair dismissal dispute to the second respondent.
At
the arbitration hearing, video footage of an incident which led to
the charges against the fourth respondents was presented
as part of
the applicant’s case. The applicant also led the evidence of a
witness, Mr Modecai Sokhabase. According to Sokhabase,
in the course
of his work as a Risk consultant for the applicant, he had been
conducting an investigation, which led him to a
park, named Berea
Park, near the city centre. The investigation involved his taking
video footage of whatever it was that was
under investigation,
details of which he refused to divulge. It was common cause that a
union meeting was being held at Berea
Park on that day. While
Sokhabase was sitting in the back seat of his vehicle and filming,
one of a group of employees of the
applicant who had gathered in the
park for a meeting alerted the others that they were all being
filmed. The group then approached
Sokhabase’s vehicle and
demanded to see his police identity card, as he had informed them
that he was a police officer
conducting an investigation. When
Sokhabase opened his wallet to retrieve a card, cards belonging to
the applicant became visible.
One of the the group which had by now
surrounded his vehicle then alleged that Sokhabase was lying to
them. At that point, according
to Sokhabase, the group became
aggressive, and attempted to open the doors of the vehicle while
hitting at it. Fearing for his
life, he stopped filming, moved to
the front seat and sped off in the vehicle. He stopped a few streets
down the road where he
inspected the damage to the vehicle. A
colleague came and escorted him to the applicant’s office. He
was shown photographs
of all the applicant’s employees and
from which he identified some whom he believed had been involved in
the incident in
the park.
Sokhabase
denied that he had been investigating which of the applicant’s
employees belonged to the third respondent. He
could not say who
among the group in the park had approached his vehicle; neither
could he say what the fourth respondents had
been wearing.
The
fourth respondent’s case was that, they had not attended the
meeting in the park on that day, but had been elsewhere.
They had
met each other on that day quite by chance and had then gone
together to the third respondent’s offices in the
city centre.
One, Mr T Ngcobo, testified that in response to his questioning of
Sokhabase as to why he did not report the incident
to the South
African Police Services (SAPS), Sokhabase said that he did not know
anyone in Durban. He believed that Sokhabase
had been instructed to
say that he, Ngcobo was at the meeting in the park, because the
fourth respondents were active in the
recently formed union in the
workplace. Mr Mbulane testified that the video footage was not shown
on the day of the internal
disciplinary hearing and that the fourth
respondents had been picked out merely from photographs of the
applicant’s employees.
Mbulane too believed that they were
identified as being perpetrators of the alleged damage to
Sokhabase’s vehicle merely
because of their activism in the
union. He denied that he could be identified in the video footage
because of a wrist watch that
he wore; the wrist watch was the
applicant’s standard issue. A witness, Mr Nzimande who
testified on behalf of the fourth
respondents, stated that when
confronted about his filming the group, Sokhabase sped off in his
vehicle and in the process bumped
the pavement. Nzimande denied that
the fourth respondents had been present at the meeting. According to
Nzimande, the first time
he had seen them was later and at the third
respondent’s offices in the city centre. Mr Mkhize, another
witness for the
fourth respondents, corroborated the evidence of the
previous witnesses and also denied that the fourth respondents were
present
at the meeting. He agreed that Sokhabase may have been
scared because he had been dishonest about the reason for his
presence
in the park.
The
grounds of review
Some
of the applicant’s grounds of review are as follows:
The
commissioner committed a gross irregularity in finding that the
video footage did not properly identify Mbulane, as the
video had
been confirmed by Sokhabase.
The
commissioner committed an irregularity and acted unreasonably in
finding that the version of the applicant was improbable.
It
appears as if the first respondent imposed too strict a test in the
consideration of the applicant’s evidence and
video footage
shown during the arbitration proceedings.
The
commissioner committed a gross irregularity and reached an
unreasonable conclusion by failing to properly consider submissions
that the vehicle which was driven by Sokhabase was damaged by
having brick marks on the side, which damage cannot be sustained
from the version presented by the fourth respondents.
The
commissioner committed a gross irregularity and acted unreasonably
by finding that based on the evidence of the fourth respondents,
the applicant failed to present a credible version.
Evaluation
In
regard to the grounds of review based on the video footage properly
identifying Mbulane, the commissioner in his award, makes
the
following observations:
“
What
the video tape did show was roughly 12 employees standing around in a
circle, speaking. It did not show the incident of the
vehicle being
damaged. The Respondent submitted that it showed one of the
Applicants being there. Mr Mbulane disputed this. The
video was not
clear, as the person was wearing a white cap and did not face the
camera. The Respondent submitted that they further
identified him
because of a watch he was wearing. Mr Mbulane testified that the
watch was a standard issue R.T.T. watch, which
many employees have.
This was not disputed by the Respondent.”
Finding
that:
The
video footage was not clear;
Mbulane
could not be identified as being part of the group– he,
Mbulane, denied that the person wearing a white cap was
him; and
a
dispute of fact existed regarding the watch apparently worn by
Mbulane which the applicant had used as a means of identifying
him
in the video footage,
the
commissioner, rightly in my view, did not consider the video footage
as providing conclusive evidence of the alleged misconduct
carried
out by the fourth respondents.
Did
the commissioner impose too strict a test in rejecting the
applicant’s evidence and video footage? This criticism of
the
commissioner’s finding is unjustified as he was unable to
positively identify any of the fourth respondents, in particular,
Mbulane, as being part of the group of approximately “12
employees standing around in a circle”. His not therefore
having accepted the video footage as being conclusive evidence of
the fourth respondents’ participation in the incident
in the
park and involving Sokhabase, is reasonable. Moreover, it would have
been expected of Sokhabase to have filmed the damage
to the vehicle
once he had left the vicinity, and presented this further footage to
the disciplinary enquiry and the arbitration
hearing. He had a video
recorder and was in the process of filming when he was confronted.
As it was, the video footage was not
presented to the internal
disciplinary enquiry; the fourth respondents were identified simply
from their photographs which the
witness, Sokhabase then pointed to
as being part of the group of perpetrators of the incident in the
park. The only evidence
therefore, of the alleged damage to his
vehicle was that given by Sokhabase himself. The photographs
presented to the arbitration
hearing, do not show any damage apart
from a missing number plate. Neither do the photographs show any
damage that could reasonably
be attributed to the actions of any of
the employees in the park on that day, least of all the fourth
respondents. Therefore,
the applicant’s submission in
paragraph 6.3 above, especially that the “damage cannot be
sustained by the versions
presented by the fourth respondents”
is not understood. Two mutually destructive versions were presented
at the arbitration
hearing, only one of which would prevail. In the
nature of disputes of fact, one party’s version will
invariably differ
from the other’s, and consequently, will not
sustain that party’s version.
When
asked which of the employees were passing behind his vehicle,
Sokhabase replied: “I don’t know, I saw somebody
walk
past.” Furthermore, on Sokhabase’s version, this group
of employees, numbering approximately 12, had turned
on him
aggressively, and tried to open the doors of the vehicle, banging at
it in the process. It would have been expected of
him to have
reported the matter to the SAPS. Even if, as he said, he did not
know anyone in Durban, he could have reported the
matter later when
his colleague arrived to escort him back to the office. In the
absence of any supporting evidence, and preferring
the evidence of
the fourth respondents to that of Sokhabase, the commissioner
correctly concluded that the applicant, who bore
the
onus
of
proving that the dismissal was fair, had failed to discharge that
onus
.
The
further grounds of review are based in essence on the commissioner’s
analysis of the evidence and his credibility findings
of witnesses.
In analysing the two conflicting versions before him, the
commissioner considered the demeanour of the witnesses,
and the fact
that the fourth respondents and their witnesses corroborated one
another’s evidence. He compared their testimonies
and found
Sokhabase, the applicant’s witness, to have been aggressive
during cross-examination. In this regard, the following
passage from
the cross-examination is instructive:
Question:
“The investigation was to find out which employees are members
of the union and target them?” Answer: “No”
Question:
“You are standing at the entrance [of the park], would you [be]
concerned if people filmed you?” Answer: “I
will not
speculate. I don’t know, I have never been in that position, I
can’t assume”
Question:
The way you are answering me it shows what I am putting to you. To
see who are union members, which is why CMC employees
confronted
you?”
It
is clear that in weighing the evidence presented by the parties, the
commissioner gave careful consideration to the demeanour
of the
witnesses and the probabilities of their respective versions. He
remarks, under the subheading: “Dealing with the
evidence”
that the fourth respondents had “submitted a credible
alternative version of what happened on the day in
question.”
His finding that the dismissal was substantively unfair is therefore
one that a reasonable decision maker could
have made based as it was,
on the probabilities of each version; his preference for the fourth
respondent’s version is based
on rational reasons.
Furthermore,
that Sokhabase, the applicant’s only witness, refused to
answer questions relating to the nature of his investigation,
could
not have helped the case for the applicant. He had been caught in
the act of filming a group of the applicant’s employees
who
had gathered in the park for a union meeting. This led to those
being filmed demanding answers from him as to the reason
for his
presence. When it became apparent that he was acting as an agent of
the applicant, the employees understandably, became
suspicious and
angry. Sokhabase then sped off in his vehicle. In his haste to
escape, according to the fourth respondent’s
version, he
knocked his vehicle against the pavement. This is reasonable, given
the fact that Sokhabase panicked when he saw
the angry mob
approaching him. Moreover, given the facts that:
the
meeting in the park was a union meting;
the
union had only recently organised at the applicant’s premises;
Sokhabase
had come from Johannesburg to conduct an investigation on behalf of
the applicant; and
He
refused to divulge the nature of the investigation,
the
inference is overwhelming that Sokhabase’s investigation
involved gathering information as to the applicant’s employees’
union activities. Therefore, faced as he was with the approaching,
angry employees who had uncovered his role as spy, it is probable
that the damage to his vehicle, if in fact damage occurred, was
caused during his hasty retreat from the park when he fled in panic.
If only the parties had a better understanding of a constitutional
democracy such as South Africa is, there would be no need for
such
underhand gathering of information as conducted by the applicant,
through its employee Sokhabase. After all, the LRA provides
the
framework within which parties to an employment relationship relate
to each other on the basis of mutual respect and openness.
Acts of
subterfuge, such as the filming of a group of employees engaged in a
meeting has no place in a constitutional democracy
and can only lead
to a breakdown in relations between employer, the applicant, and its
employees and the third respondent being
the employees’ chosen
representative.
In
my view, the commissioner’s award is well-reasoned and
carefully worded. After analysing and comparing the two versions,
he
came to the conclusion that the applicant had failed to discharge
the burden of proving that the dismissal was fair. Furthermore,
quoting the case of
Boxer
Superstores (Pty) Ltd v Zuma and Others,
2
the
arbitrator found himself faced with a similar situation in that as
he did not find that the fourth respondents were guilty
of the
offence for which they were dismissed, he accordingly concluded that
reinstatement was the appropriate remedy.
In
the premises, I make the following order:
The
application is dismissed.
The
applicant is to pay the respondent’s costs.
Pather,
A.J.
________________________
Appearances:
For
the Applicant : Mr G Cochran
Instructed
by : The Company
For
the Respondent : Adv.A Pillay
Instructed
by : PKX Attorneys
1
66
of 1995.
2
[2008] ZALAC 7
;
[2008]
9 BLLR 823
(LAC).
11