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[2012] ZALCJHB 15
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Urban Africa Security (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 731/10) [2012] ZALCJHB 15; (2012) 33 ILJ 2201 (LC) (17 February 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 731/10
In the matter between:
URBAN AFRICA SECURITY
(PTY) LTD
…..............................................................
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
…...........................................................
First
Respondent
COMMISSIONER MAHLURI
DIFFERENCE MAHLAWULE
…...............
Second
Respondent
BETHUEL MADIKANE PITSI
….................................................................
Third
Respondent
Heard: 22 November
2011
Delivered: 17 February
2012
Summary: Arbitration
award set aside and reviewed – remitted back to the first
respondent – commissioner relying on
a version not put to the
witness.
___________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
This is an application
to review and set aside an arbitration award made by the second
respondent (‘the commissioner’)
under case number LP
7254/09 in terms of which the commissioner found that the dismissal
of the third respondent was substantively
unfair. The commissioner
ordered the applicant to reinstate the third respondent back to its
employment on the same terms and
conditions as governed the
employment of the third respondent prior to his dismissal. The
applicant was ordered to reinstate
the third respondent with effect
from Friday, 12 March 2010. The commissioner also ordered the
applicant to pay the third respondent
an amount of R5547.00 which is
equivalent to three months salary in back pay on or before 12 March
2010.
The application was
unopposed.
Background Facts
The third respondent was
employed by the applicant on 01 June 1998 as Grade C Security
Officer. He was dismissed on 23 November
2009. He was dismissed for
refusing to obey a reasonable instruction issued by the general
manager, Petrus Albertus Bantjies
(‘Bantjies’) of the
applicant and for using abusive language towards his manager at his
post at Kentucky, Market
Street on 16 November 2009.
Bantjies testified at
the arbitration hearing that on 16 November 2009, he was visiting at
Kentucky Market Street where the third
respondent was deployed. On
his arrival at that station, he asked
third
respondent to give him the occurrence book (‘the OB’) to
which the respondent refused and stated that ‘he
(Bantjies)
was not his boss. God is his boss’. The third respondent said
this while walking away from Bantjies.
Bantjies informed one of
the controllers, Zechariah Chuene (‘Chuene’) about what
had happened. He told Chuene that
he is giving the respondent an
instruction to report to the office the following day. The third
respondent with a loud voice
refused to report to the office and
Chuene could hear him on the background. Two days later, the third
respondent came to see
him and asked for the matter to be resolved
amicably. He stated that he was busy and could not come to the
office when he was
instructed to do so.
The third respondent
denied that he insulted Bantjies and had refused to follow an
instruction. He stated that Bantjies came to
the site on the day in
question and asked for the OB. He denied that he did not want to
cooperate but stated that Bantjies simply
did not greet him upon his
arrival. He testified that he told Bantjies that the OB was inside
the building and the manager of
Kentucky had already locked the
building. Bantjies then said to him ‘because you are not in
possession of the occurrence
book, you must report at the office the
following day’ and he then drove off. He testified that the
practise is that if
there are issues to be reported upon after 22h00
he would approach his colleague at BB Auto, which is another site of
the applicant
closer to Kentucky. He would also use the said
colleagues’ two way radio to inform the office whatever needs
to be reported
on.
The third respondent
testified that he went to Bantjies office the following day, 17
November 2009 and could not find him. He
again went on 18 November
2009 when he was suspended and was informed of the hearing to be
held on 20 November 2009.
The commissioner found
that the applicant had failed to discharge the
onus
on the
balance of probabilities that dismissal of the third respondent was
substantively fair.
Grounds for review
The applicant submits
that the commissioner’s award is not justifiable in terms of
the reasons given in the arbitration
award. The applicant further
submits that the commissioner has made errors of law and fact
regarding requirements of substantive
fairness of the dismissal.
Evaluation
The commissioner was
presented with two versions of events. In that instance he had to
assess which version was more probable
than the other. It is common
cause that each of the parties called a single witness. In the case
of
S v
Carolus
1
the SCA held that:
‘
There
is no formula to apply when it comes to the consideration of the
credibility of a single witness. The trial court should weigh
the
evidence of the single witness and consider its merits and demerits
and, having done so, should decide whether it is satisfied
that the
truth has been told despite the shortcomings or defects or
contradictions in the evidence
.’
2
The first issue of
contention advanced by the applicant is that the commissioner drew a
negative inference that Bantjies failed
to call Chuene as a witness
to corroborate his assertion that Chuene overheard his conversation
with the third respondent. The
applicant submits that Chuene was not
a witness at the scene. The reason advanced by the applicant as to
why Chuene was not called
at the scene was that the third respondent
never disputed that a telephone conversation took place and the
contents thereof and
the third respondent kept changing his version
in relation to that alleged telephone call. At one point he denied
that there
was a telephone call but later on accepted that Bantjies
did contact Chuene.
The applicant’s
assertion that Chuene was not a witness at the scene implies that
the applicant did not see Chuene’s
evidence as being material
in proving its case. The applicant submits on the other hand that
the reason Chuene was not called
as a witness was because the phone
call and its contents were not disputed by the third respondent.
From the reading of the
record it is clear that Bantjies telephoned Chuene to advise him of
the third respondent’s behaviour.
Bantjies testified that
during the telephonic conversation Chuene overheard the third
respondent shouting and using abusive language
towards him. The
abusive language he was alleged to have used was ‘you are not
my boss. I do not listen to you’.
Chuene’s evidence was
without a doubt quite crucial and would have corroborated the
version of Bantjies.
The third respondent
clearly denied that he insulted Bantjies. It is therefore not quite
correct to state that the third respondent
did not dispute the
contents of the alleged telephone call. The third respondent also
challenged Bantjies to call witnesses to
support his allegation.
This was also raised during the third respondent’s
cross-examination whereupon he denied that he
was shouting and
challenged the applicant to bring the one who said he was shouting.
On that issue, the
commissioner’s finding cannot be faulted as being
unreasonable.
It
is well a established principle of our law that failure to produce a
witness who is available and able to testify and give
relevant
evidence, may lead to an adverse inference being drawn.
3
In
Tshishonga
v Minister of Justice and Constitutional Development and Another
4
,
the court held that failure to call a witness is reasonable in
certain circumstances, such as when the opposition fails to make
out
a
prima
facie
case.
In that case, Pillay J went further and held that:
`But
an adverse inference must be drawn if a party fails to testify or
place evidence of a witness who is available and able to
elucidate
the facts as this failure leads notorally to the inference that he
fears that such evidence will expose facts unfavourable
to him or
even damage his case.’
One would have expected
the applicant to call Chuene who could shed some more light as to
what he overheard over the telephone
but the applicant chose not to
call him. Be that as it may I also do not agree that the
commissioner regarded failure to call
Chuene as being fatal to the
applicant as the applicant suggests.
The second ground for
review raised by the applicant is that the third respondent’s
version that the OB and radio were locked
in the building was never
put to the applicant’s witness, Bantjies. The applicant
submits that it was incorrect for the
commissioner to find ‘the
reasons offered by the employee why he could not hand over the
occurrence book were not disputed’.
In this regard the
commissioner found that:
‘
Under the
circumstances however, I find it hard to believe that the employee
was insubordinate, considering the fact that it was
never disputed
that the required occurrence book and the two way radio were already
locked in the building by the manager of Kentucky.
Meaning that it
was not practicable to hand over the occ
u
rrence
book to the general manager as requested.’
I have gone through the
record and I could also not find anywhere where this version was
specifically put to Bantjies by the third
respondent during his
cross-examination of Bantjies. The third respondent merely asked
Bantjies if there was anything he had
said to Bantjies to which
Bantjies answered ‘You did not speak. You walked away from
me.’ The third respondent did
not put his version to Bantjies
that he told Bantjies that the OB was locked up at Kentucky so that
Bantjies could comment on
that. That evidence only came when the
third respondent was giving his testimony and by then the
applicant’s witness had
no opportunity to comment. This in my
view is quite significant in that it is the version that the
commissioner seems to have
accepted over that of Bantjies. It could
not be assumed that Bantjies knew what the applicant’s version
was. Moreover,
this version transpired for the first in the
arbitration hearing and was never placed during the disciplinary
hearing.
It is well established
that the arbitrator’s reliance on a version that was not put
to a witness is a reviewable irregularity
5
.
In the
Southern Sun Hotel Interests (Pty) v CCMA and Others,
Van Niekerk J held as follows:
‘
To
rely on evidence in the absence of it having been put to the opposing
party’s witnesses under cross-examination constitutes
a
reviewable defect.’
6
I accept that the third
respondent was a layman and may not have knowledge on how to present
his case at arbitration. The commissioner
however could not make a
finding that a version that was not put to the applicant’s
witness was undisputed by the applicant.
This issue alone renders
the award reviewable. In my view, the finding of the commissioner
was unreasonable as the version he
relied on went to the heart of
the issue before him.
Aside from that
the third respondent’s explanation of why he did not
have his OB and radio in his possession as a security guard when
required
is also questionable. I will however not give a view on
that issue in light of my finding on the third respondent’s
version
not having been put to the applicant’s witness.
In view of my finding
above, it is not necessary to deal with other grounds for review. It
is also my view that it be would be
in the interest of justice for
this matter to be remitted back to the first respondent (‘the
CCMA’) for a rehearing.
The CCMA will be better placed to make
credibility findings against witnesses. Looking at factors such as
the reliability of
witnesses, their demeanour and consistency of
evidence given, which may not readily appear from the record. This,
in my view
is one those cases.
I therefore make the
following order:
The arbitration award
dated 21 February 2010 under case number LP7254-09 is reviewed and
set aside.
The matter is remitted
back to the CCMA for a hearing
de novo
before a new
commissioner other than the second respondent.
No order as to costs.
________________
BOQWANA AJ
ACTING JUDGE OF THE
LABOUR COURT
APPEARANCES:
FOR THE APPLICANT: Mr J
Matthee employee of the applicant
FOR THE THIRD RESPONDENT:
No appearance
1
[2008] ZASCA 14
;
2008
(2) SACR 207
(SCA).
2
S
v
Carolus supra
at 211-212, para15. The court relied
inter
alia
directly on the early and more extensive consideration of
the rule in
S v Sauls and Others
1981 (3) SA 172
(A) at 180E
– G as authority for this proposition.
3
See
UPUSA obo Khumalo v Maxiprest
Tyres (Pty)
Ltd
(2009) 30 ILJ 1379 (LC) (12
September 2008)
at
para 30 and
Simelane
and Others v Letamo Estate
(2007) 28 ILJ 2053
(LC)
and
the authorities referred therein
.
4
(2007)
28 ILJ 195 (LC) at para 112.
5
In
this regard see
SA
Nylon Printers (Pty) Ltd v Davids
[1998]
2 BLLR 135
(LAC)
at 137I-138A; ABSA Brokers (Pty) Ltd v Moshoana NO & others
[2005]
10 BLLR 939
(LAC)
at paras 38 - 42.
6
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
(2010)
31 ILJ 452 (LC) at 462, para 20.
See
in this regard: