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[2012] ZALCJHB 94
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Primedia Outdoor, Division of Primedia (Pty) Ltd v Phala NO and Others (JR 157/2011) [2012] ZALCJHB 94 (31 August 2012)
9
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case number JR 157/2011
In the matter between
:
PRIMEDIA OUTDOOR,
DIVISION OF
PRIMEDIA (PTY) LTD
..........................................................................................
Applicant
and
MOTLATSI PHALA N.O
.............................................................................
1
st
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
.............................................................
2
nd
Respondent
MOSES SIZWE MNCHUNU
.......................................................................
3
rd
Respondent
Date if hearing: 17
April 2012
Date of judgment: 31
August 2012
Summary: Review
application- Point in
limine
:
Locus standi
of the
deponent to the founding affidavit. Principle- locus standing
regarding the initiation and prosecution of the matter. Contention
that the deponent to the founding affidavit had no
locus standi
.
Initiation and prosecution in this matter done by the attorneys and
not the deponent to the founding affidavit.
Failure to call and
provide reason for not calling crucial witness- Commissioner applied
the principle correctly. Review application
dismissed.
JUDGMENT
Molahlehi J
Introduction
This is an application
to review and set aside the arbitration award of the first
respondent (the Commissioner) under case umber
GAJB 31357-10 dated
20 December 2010. In terms of that arbitration award the dismissal
of the third respondent was found to have
been unfair and the
applicant was accordingly ordered to reinstate the third respondent.
The third respondent has
in his answering affidavit raised a preliminary point concerning the
alleged unreasonable delay in the
prosecution of the review
application. This point was however not pursued in argument.
Back ground facts
The third respondent who
prior to his dismissal was employed as debtors’ clerk was
dismissed for gross negligence and gross
dishonesty. The charges
arose from customer invoices which were found unattended in an
office.
According to the
applicant the third respondent was responsible for sending the
invoices to its customers and therefore the finding
of some of them
in the office meant that customers had not been invoiced for the
services which the applicant had rendered. The
charge of dishonesty
arose from the allegation that the third respondent when asked about
the invoices, said that he had posted
them. Two other employees were
also charged for the invoices which were allegedly not send to
customers. The third respondent
and Ms Melanie Coombs were found
guilty and dismissed. Ms Sandra Miller was only found guilty of
negligence and not dishonesty
and was accordingly not dismissed.
Grounds for review
The applicant contends
that the Commissioner committed gross irregularity as his finding
was inconsistent with the evidence present
during the arbitration
hearing. In this respect the applicant contends that the evidence
which was presented showed that the
third respondent was responsible
for the sending of invoices to the customers of the applicant and
the invoices which were found
in the third respondent's office had
not been sent to the customers. The applicant contends that the
arbitration award was irregular
because the Commissioner failed to
take into account the following undisputed facts:
"20.1 that each
month the Third Respondent is responsible to send invoices to
customers;
20.2 that a box of
original unsent invoices was discovered in the Applicant’s
offices;
20.3 that the invoices in
this box were for the period of June and August.’
As concerning the issue
of inconsistency the applicant contends that the finding of the
Commissioner was plainly wrong and in
direct contrast to the
evidence presented during the arbitration hearing.
The Commissioner's
arbitration award
In analyzing the
evidence the Commissioner found that it was important for the
applicant to have called a number of witnesses
in seeking to proof
that the third respondent was guilty of failing to send the invoices
to customers or that the invoices were
indeed not sent. The
witnesses which the Commissioner says the applicant was supposed to
have called are; Ms Joshila Hari, Melnie
Coombs and Denver.
The Commissioner says Ms
Coombs ought to have been called as a witness to explain why she
gave Denver invoices as a matter of
practice when the applicant was
also a debtor’s clerk. And concerning Ms Hari the Commissioner
says she ought to have been
called as a witness because she had
convened a meeting with the employees in the debtors department
immediately when the issue
came to her attention. She subsequent to
the meeting sent an email requiring a detailed explanation of what
happened. Denver
ought to have been called, according to the
Commissioner because she would have clarified the question
concerning the distribution
of work to the third respondent and
other employees.
As concerning the charge
that the applicant failed to show that the third Respondent was
guilty of failing to send invoices, the
Commissioner found that the
applicant was inconsistent in the application of its discipline
because the supervisor who gave work
to the employee was not
dismissed.
Evaluation
The third respondent
raised as a preliminary point the issue of
locus
standi
.
The third respondent contends that the applicant has failed to prove
locus
standi
because
the founding affidavit is signed by a manager who has produced no
evidence to show that he had authority to do so.
It is trite that the
onus
rests on party
instituting proceedings and prosecuting a claim to prove
locus
standi
.
In the present matter the issue of
locus
standi
was
raised for the first time during argument and was raised not in the
context of the institution of the proceedings but rather
in relation
to the attestation of the founding affidavit. The notice of motion
instituting the proceedings is signed by the applicant's
attorneys
of record.
The question of
locus
standi
in
relation to the signing of the founding affidavit was answered by
the Supreme Court of Appeal in
Games
and Another v Telkom Namibia
,
1
where
the court held:
“
[19]
The deponent to an affidavit in motion proceedings need not be
authorised by the party concerned to depose to the affidavit.
It is
the institution of the proceedings and the prosecution thereof which
must be authorised. In the present case the proceedings
were
instituted and prosecuted by a firm of attorneys purporting to act on
behalf of the respondent. In an affidavit filed together
with the
notice of motion a Mr Kurz stated that he was a director in the firm
of attorneys acting on behalf of the respondent and
that such firm of
attorneys was duly appointed to represent the respondent. That
statement has not been challenged by the appellants.
It must,
therefore, be accepted that the institution of the proceedings were
duly authorised. In any event, rule 7 provides a procedure
to be
followed by a respondent who wishes to challenge the authority of an
attorney who instituted motion proceedings on behalf
of an applicant.
The appellants did not avail themselves of the procedure so
provided.”
In the present case, in
the same way as the above case the notice of motion is signed by the
attorneys of record of the applicant
and their authority in that
regard has not been challenged. It therefore follows that it is the
attorneys who are responsible
for instituting and prosecuting the
proceedings. Accordingly, the issue of
locus
standi
cannot
be sustained.
Turning to the merits of
this case, the first point concerns the finding that the applicant
was inconsistent in the application
of its discipline. As indicated
earlier the Commissioner found the dismissal of the third respondent
to be inconsistent because
Ms Coombs was charged of the same
offences, found guilty but was not dismissed. Contrary to this
finding the record reveals that
Ms Coombs was dismissed. This fact
was also conceded to during argument in these proceedings. It was,
however, suggested that
the inconsistency finding was in relation to
Ms Miller, the supervisor of Ms Coombs.
Ms Miller was also
charged with the same offences, as the third respondent but was
found guilty of one charge and given a written
warning. The
applicant explained that the reason for treating her differently,
even though she was found guilty was that this
was her first
offence.
It can therefore not be
said that there was a typographical error that instead of Ms Miller
the Commissioner said Denver. However,
even if that was the case the
finding of the Commissioner would still be unsustainable. It is
trite that inconsistency does not
automatically arise as a matter of
application of a rule of law whenever an employer applies
differentiated sanction to employees
who are charged with the same
offences. The question in general is whether the differentiation is
fair and that it is also generally
determined by enquiring whether
there is a reasonable explanation for the differentiation in the
discipline. In the present case
the applicant has provided an
explanation which has not been challenged by the employee.
The second point in as
far as the merits of the case is concerned relates to the broader
issue of the reasonableness of the conclusion
reached by the
Commissioner, including those defects envisaged in section 145 of
the Labour Relations Act.
It is trite that
2
in
considering whether the dismissal of an employee is fair or
otherwise the Commissioner sitting as an arbitrator is required
to
take into account the totality of the facts and the circumstances of
the case.
In the context of this
case, the issue that led to the applicant dismissing its employees
arose as a result of the invoices which
were found in the box next
to a scrap paper. The department responsible for sending invoices to
the customers of the applicant
is the debtors department. At the
time the employees employed in that department were responsible for
the processing and ensuring
that invoices are sent out. At the time
of the dismissal, the third respondent together with another debtors
clerk were responsible
under the supervision of Ms Coombs for
sending out invoices.
It is apparent from the
reading of the arbitration award that the operational process of
sending invoices out played a significant
role in the Commissioner
arriving at the conclusion that the dismissal of the employee was
unfair. The process described by Miss
Coombs in her testimony and in
this regard the Commissioner quotes her as having described the
process as follows:
‘
Pearl, puts
invoices on my desk as soon as she has printed, I placed them on
Dever’s desk before he got into the office and
told him to
ensure invoices are enveloped and posted- this was done until Denver
left at the end of August.’
It is apparent from the
above that the person responsible for allocating and posting of the
invoices was Mr Denver. He was in
essence responsible for
distributing work to the employee and the other debtors’
clerk. He was thus a critical witness
to explain, as to whom the
June invoices were given to. Put differently, he is the one who
could confirm whether the invoices
were given to the third
respondent or Ms Miller. It is in this context that the Commissioner
found that the applicant ought to
have called Mr Denver as a witness
to clarify what actually happened with the allocation of the June
invoice.
The Commissioner clearly
drew an adverse inference from the failure to call Mr Denver. This
approach is not unreasonable as it
accords with the legal principle
enunciated by our courts. In
UPUSA
OBO Khumalo v Maxiprest Tyres (Pty) Ltd
,
where this court in dealing with this principle held:
3
“
[30]
It
is a well-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.
The
court further quoted with approval what was said in
Tshishonga
v Minister of Justice and Constitutional Development and another
4
,
where the court had the following to say:
"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 naturally to the inference that he
fears that such evidence will expose facts unfavourable
to him or
even damage his case."
As concerning the second
charge of failing to inform the applicant about the invoices, the
version of the third respondent as
to what happened in that regard
was not challenged. The version of the third respondent was that he
was not present at the meeting
where the question as to who was
responsible for the June invoices was raised. He secondly, said that
he became aware of the
invoices when he received the email enquiring
as to who was responsible. It therefore means that in the first
instance, the submission
by the applicant that the third respondent
simply made a bare denial is incorrect.
Conclusion
I agree that the
Commissioner's arbitration award is reviewable on the basis of the
error he made in relation to the facts concerning
the alleged
inconsistent application of discipline by the applicant. I do not
however believe that this error vitiates the whole
of the
arbitration award. In my view the arbitration award is still
sustainable despite this error. I am of the view in this
regard that
the proper and fair approach to adopt is that of correcting the
arbitration award in as far as the issue of inconsistency
its
concerned.
The Commissioner cannot
however be faulted for finding that the applicant has failed to
prove that the employee was guilty of
failing to send the June
invoices. The conclusion by the Commissioner that the applicant
ought to have called Mr Denver as a
witness is on the facts and
circumstances of this case correct. The applicant has accordingly
failed to make out a case justifying
the setting aside the
arbitration award. I see no reason why the cost should not in
fairness and in law follow the results.
Order
In the premises the
following order is made:
The arbitration award
of the Commissioner is reviewed and corrected to read as follows:
“
1
The applicant has not made out a case for inconsistency in the
application of discipline by the respondent."
The applicant's
application to review and set aside the arbitration award made by
the first respondent under case number
GAJB 3135-10 dated 20
December 2010 is dismissed with costs.
______________
Molahlehi J
Judge of the Labour Court
Of South Africa
Appearances:
For the Applicant: Snyman
Attorneys
Fort the respondent: Adv
DEJ Brown instructed by Medupi Lehong Attorneys
1
2004
(3) SA 615
(SA) at paragraph [19].
2
See
Fidelity Cash Management Services v CCMA and Others
(2008) 3 BLLR
197
(LAC)
3
[2008]
JOL 22873
(LC).
4
(2007)
28 ILJ 195 (LC)