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[2013] ZALCJHB 89
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Ullman Brothers (Pty) Ltd v National Bargaining Council of the Road Freight Industry and Others (JR 3354/2010) [2013] ZALCJHB 89 (28 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no :JR 3354/2010
In the matter between:
ULLMANN BROS (PTY) LTD
Applicant
and
NATIONAL BARGAINING COUNCIL OF THE ROAD FREIGHT
INDUSTRY
First Respondent
K DRISCOLL NO
Second Respondent
SATAWU on behalf of PETER MASHIGO
Third Respondent
Heard: 11 JULY 2012
Delivered: 28 MAY 2013
JUDGMENT
VAN GRAAN AJ
Introduction
[1] This is a review application in terms of section 145
(1) of the Labour Relations Act, No 66 of 1995 (as amended) ("the
LRA") against the
written arbitration award by Commissioner K Driscoll,
the second respondent, dated 23 November 2010. The award concerned
the dismissal
by the applicant, the employer, of Mr Peter Mashigo, a
former employee (“the employee”). The employee is a
member of
the third respondent. The third respondent, on behalf of
the employee, is opposing the review application.
Background facts
[2] The employee together with a fellow employee, Mr
Themba Thutuka, were charged with misconduct by the applicant. The
applicant
alleged in the disciplinary notice dated 26 January 2010
that the employee, in terms of charge 1, was “throwing stones
at
vehicles and/or persons entering and/or leaving company premises”
and, in terms of charge 2, was guilty of assault and/or
intimidation.
According to the particulars supplied in the disciplinary notice the
employee, on 21 January 2010, engaged in shooting
catapults and
throwing stones and/or other missiles at vehicles and/or persons
entering or leaving the applicant’s premises.
(The alleged
incidents occurred during a strike by the applicant’s
employees.) According to the disciplinary notice the alleged
conduct
was calculated to cause damage to such vehicles and/or persons, and
intimidate persons from entering or leaving the premises.
[3] The disciplinary hearing commenced on 22 March 2010.
The employee pleaded not guilty.
[4] On 26 March 2010, the chairperson, Mr Pieter
Strydom, after having considered oral evidence on behalf of applicant
and the employee
and video footage, depicting the conduct of the
employee, found the employee guilty in respect of charge 1 and charge
2. The chairperson,
however, qualified his “finding of guilty
on the second charge in that (he) could not find the employees to
have been guilty
of assault”. According to the minutes of the
pre-arbitration meeting, preceding the arbitration which followed
after the
employee’s dismissal, the parties agreed that the
employee was not guilty on charge 2. The employee was dismissed on 26
March
2010.
[5] The third respondent, SATAWU, on behalf of the
employee, referred the dispute in terms of the provisions of section
191 of the
LRA to the National Bargaining Council of the Freight
Industry, first respondent, for the purpose of conciliation. The
parties
were unable to resolve the dispute. The first respondent was
requested to hold an arbitration.
[6] The arbitration proceedings between the employee and
the applicant commenced on 19 October 2010. Commissioner Driscoll,
the
second respondent, acted as the arbitrator. The applicant and the
third respondent agreed that the procedural fairness of the
disciplinary
hearing was not in dispute. The Commissioner,
determined, as reflected in her award, that the dismissal of the
employee was substantively
unfair. The Commissioner further ruled
that the employee be reinstated in his previous position from the
date of his dismissal
without any loss of benefits. The employer was
ordered to pay the employee for the intervening period. The employee
had to report
for duty on 1 December 2010. No order as to costs was
made.
Review application and review grounds
[7] On 10 January 2011, the applicant filed a review
application as contemplated in the provisions of section 145(1) of
the LRA.
The human resources manager of the applicant alleged in the
founding affidavit that the Commissioner Driscoll’s conclusion
was not reasonable and justifiable given the evidence presented to
her. He alleged in the supplementary affidavit that the Commissioner,
second respondent, failed to consider the evidence which had been
adduced before her.
The issue
[8] The main issue in this matter is whether the
Commissioner’s finding that the dismissal of the employee was
substantially
unfair, was one which a reasonable decision maker could
have reached.
The evidence before the disciplinary chairperson
[9] Peet Botes testified during the disciplinary hearing
on behalf of the applicant. He was a warehouse controller. On 21
January
2010, between 09h00 and 10h00, he saw Thutuka and the
employee behind a wall. Thutuka threw a stone and the employee was
shooting
a catapult. Although he did not see a vehicle leaving the
applicant’s premises, vehicle LFB 799 GP was leaving the
applicant’s
premises at the time when the employee threw a
stone in the vehicle’s direction. Botes could not see where the
stone landed,
but he heard it when it hit the vehicle “between
the steelwork of the trailer and the sail on the left side”.
Botes
took video footage of the events. It was shown to the
chairperson. Still photographs showing Thutuka and the employee
throwing
stones were obtained from the video footage.
[10] The employee, who denied that there were trucks in
the vicinity during 09h00 to 10h00, conceded that he was throwing
stones.
They were singing, got bored and he and Thutuka decided to
throw stones at the birds – “… they were sitting
on this wire… just above the lawn”. Under
cross-examination he admitted to have used a “kettie” and
a
stone. He said he was throwing the stones ‘towards the cable…
because (his) hand went up…’. He also admitted
that
after police officials shot two rounds of live ammunition, he and
others threw stones at the police.
[11] Thutuka, a fellow employee, who also appears on the
video footage, testified that he was carrying ‘a stone because
(he)
wanted to hit a bird’. The birds, he said, ‘were
sitting on the electric fence’. He missed the birds. Some birds
were sitting on the electric fence and some on the power lines. The
employee was also throwing stones. He did not see any trucks
leaving
the premises. He also admitted that they threw stones at the police.
[12] Pasha, a witness on behalf of the employee,
testified that he had seen the employee throwing a stone. He also saw
Thutuka throwing
stones. According to him a ’couple of birds
(were) on the grass some on the bottom and some on the bottom wire …
(t)he
wire for electric …’. He also said one guy was
’throwing a stone to the birds on the wire there’. The
other person said: ’I want to hit the one on the grass’.
[13] Shabalala testified that the birds were sitting ‘on
the grass it was so full there – birds were sitting there’,
Themba Thukuta was throwing a stone. He also said that he heard two
shots from the police, when the employees threw stones.
[14] The video footage shows that Thukuta threw a stone,
the employee used a catapult and thereafter threw a stone. Still
photographs
(obtained from the video footage) depicting the employee
using a catapult and throwing a stone also served before the
disciplinary
chairperson.
The proceedings before the commissioner
[15] Documentary evidence (including the transcription
of the disciplinary hearing) and the video footage served before the
Commissioner.
Botes and the employee testified before the
Commissioner, but there is no recording of their evidence.
[16] The dispute and litigation manager of the
bargaining council stated in an affidavit that it appeared, after
downloading the
mechanical recording of the arbitration, that the
recording was blank. There is no transcription of the arbitration
proceedings.
The applicant, however, prepared a reconstruction of the
arbitration hearing held on 19 October 2010. The second respondent,
Commissioner
Driscoll, I was told, did not object to the correctness
of the reconstruction of the employee’s evidence.
[17] The Commissioner noted certain admissions by the
employee. The employee admitted that, on 21 January 2010, he was
outside the
applicant’s premises, that he threw a stone and
that he can be seen on the video footage of 21 January 2010.
[18] The Commissioner minuted the employee’s
evidence as follows in her handwritten notes. :
‘…
I
picked up stones; … it up high, birds not on grass, but at
birds on the street light cable was about 8 to 10 m. Before
birds
flew away …’
[19] The reconstruction of the evidence of the employee
contained the following description of his conduct :
‘
Nobody
was doing any funny things – they were just sitting and doing
toyi toyi. They were just standing there and he and Thuthukani
decided to have a competition and compete to hit the birds. We wanted
to see how far we can hit or shoot a bird. Some birds were
on the
grass and some on the powerline. Thuthukani threw the first stone,
but could not hit the bird. He picked up a stone at the
birds which
were high ‘I hit the birds on the cable – the street
lights’. The light cable pole was lower on the
side where he
had been throwing.’
[19]
In the written award, the Commissioner minuted the
employee’s evidence as follows:
‘
The
Applicant (the employee Mr Peter Mashigo) testified further. That
they had stood there for a long time and as they were bored
the
Applicant and Themba Thuthuka decided to play a game to see which of
them could hit the birds on the opposite pavement (See
‘E’
on sketch). Applicant stated that the game was usually played using
catapults, but that Mr Thuthuka had suggested
they use stones. The
applicant stated further that Mr Thuthuka had thrown the first stone,
but missed and when the applicant had
thrown his stone, the birds had
flown from the grass to the street light cable, which was about 8 to
10 metres away. The applicant
stated that the pole was lower on the
side of the street to which he had been throwing the stone.’
[20] The Commissioner, found,
inter alia
, that
the applicant failed ‘to make the crucial connection between
the (employee) throwing the stone and the (applicant’s)
vehicle
being hit by the stone on 21 January 2010’. The second
respondent found that she cannot ‘conclude that the
(the
employee’s version) that he was throwing the stone at some
birds is entirely implausible’. She stated that she
was not
persuaded that the applicant, on a balance of probability, discharged
its onus. Thus the benefit of the doubt, she said,
must be given to
the employee.
Applicant’s argument
[21] Ms M Chenia, applicant’s attorney, submitted
that, the probabilities indicate, considering the evidence adduced
before
the second respondent, but more particularly the video
footage, the employee was throwing stones at a vehicle, wherefore the
finding
by the Commissioner was unreasonable.
[22] She gave reasons in paragraph 7 of the applicant’s
heads of argument why the employee’s defence in terms of the
first charge cannot be accepted:
‘
7. The
defence of Mashigo should have been rejected outright for the
following reasons:
7.1. Botes testified that
Mashigo could not have been throwing stones at birds given the height
he was throwing the stones.
7.2. Mashigo claimed that he had
been throwing stones at birds on the street light cable about 8 - 10
meters away but then later
said that the street light poles were
lower on the side where he was throwing stones. The Applicant
challenged his evidence in
this regard.
7.3. In
reference to a diagram submitted, Botes further testified that he
(Botes) was at Area “C” when he was filming
the incidence
of stone throwing. The area marked “B” is where Mashigo
was standing and throwing stones when he was
recorded on the video
footage.
The area marked "E" is where the birds
allegedly were.
7.4. In between the area marked
"B" and "E" is where the trucks had to pass
through in order to exit or enter
the premises of the Applicant.
Botes testified that if you looked at the direction in which the
stones were being thrown in area
"E" is directly on the
other side of the area where the trucks had to pass.
7.5. From the area where Botes
was filming ("C"), the impact of the stone on the truck
cannot be seen. However, on the
video footage the sound that can be
heard after the stones are being thrown is clearly that of a stone
hitting a truck. The Second
Respondent ignored such evidence.
7.6. The Second Respondent
relied on the evidence of Mashigo that the throwing of stones was in
fact a game despite the fact that
the facial expression of Mashigo
was not that of a laughing or a smiling face.
7.7. The images which were
produced of Mashigo throwing stones showed a different posture from
somebody throwing stones at birds.
7.8. The Second Respondent
wrongly inferred from other circumstantial evidence that Mashigo was
throwing stones at birds and not
at the trucks.
7.9. Another fellow employee of
Mashigo, Mr Thuthuka, was also filmed committing the same offence
during the same industrial action
on 21 January 2010. The evidence
presented at Mr Thuthuka's arbitration was the same as above. In this
arbitration the arbitrator
ruled in favour of the Applicant and
rejected the version of Mr Thuthuka that they were throwing stones at
birds. The arbitration
award was presented to the Second Respondent.
7.10. The Commissioner in Mr
Thuthuka's matter concluded that he could hear the impact of the
stone when it hid the truck in the
video recording, the posture of Mr
Thuthuka and his colleague (Mashigo) suggested that the target of
their actions was not birds
but in fact another object, that they
were not looking at the power lines and that their facial expression
did not resemble people
who were having fun. The relevant
Commissioner upheld the dismissal of Mr Thuthuka as fair. The Second
Respondent disagreed with
the findings thereof.
7.11 The evidence of Mashego is
highly improbable and the Second Respondent's reliance on same is not
reasonable or justifiable.’
Employee’s argument
.
[23] Mr K F Mphepya, who appeared on
behalf of the third respondent and the employee, argued that the
employee’s version is
reconcilable with the photographs. The
photographs show that the employee was not throwing stones at
eye-level, but upwards in
the direction of birds. He said that the
test for a review application is reasonableness set out in
Sedumo
and Another v Rustenburg Platinum Mines Ltd and Others
1
.
The Commissioner’s failure to mention some of the facts does
not amount to gross irregularity.
Applicant’s reply
[24] Ms Chenia argued in reply, referring to the video
footage, that one should bear in mind that Botes filmed the employee
throwing
a stone when the first vehicle was about to leave
applicant’s premises. At that stage he heard the sound of an
object striking
the vehicle. The sound is audible on the video
footage. Botes’ conclusion that the employee was throwing a
stone at a vehicle
is not based on an assumption, Ms Chenia said, but
it is a reasonable inference from all the circumstances.
Evaluation
[25] The Commissioner was not sure where to place the
birds at which the employee was throwing stones. In her handwritten
notes,
on the evidence of the employee, at the time when the employee
picked up the stone, they were not on the grass, but sitting on the
street light cable (paragraph 18 above). According to the
reconstructed record, some of the birds were on the grass, and some
were on the powerline. However, when the employee picked up a stone
the birds were high on the cable (see paragraph 19 above). In
the
written award, the Commissioner found that, when the employee had
thrown the stone, the birds flew from the grass to the street
light
cables (see paragraph 20 above).
[26] The crucial issue in this matter is, however,
whether Commissioner Driscoll’s finding that it is not entirely
implausible
that the employee was throwing stones at birds during the
strike at the applicant’s premises, is finding which a
reasonable
decision maker could have made.
[27] According to me, the employee’s account is
highly improbable.
[28] First, the employee’s evidence before the
disciplinary chairperson was that after the singing had stopped, he
got bored
and he and Thutuka decided to throw stones at birds.
However, the circumstances which prevailed, all from the employee’s
evidence, left little room for boredom. During the strike, the
striking employees were toyi toying and singing. The police officials
shot two rounds of live ammunition. After the shots with live
ammunition had been fired, the employee and his fellow employees
threw stones at the police. My inference from the employee’s
evidence is that a dangerous confrontation between the striking
employees and the police erupted. Boredom under such circumstances,is
highly improbable.
[29] Secondly, on the employee’s evidence, the
police shot two rounds with live ammunition whereafter the employee
and others
threw stones at the police. It is improbable that a
striking employee, during such circumstances, would throw stones at
birds.
[30] Thirdly, the grim facial expressions of the
employee and his colleague, visible on the video footage, while they
were throwing
stones does not give the impression of two men
participating in a game throwing stones at birds.
Conclusion
[31] After considering the evidence, after viewing the
video footage, together with the attorneys of the parties and the
considerations
in paragraphs 29 to 31 above, I have come to the
conclusion that the Commissioner’s finding that it was not
entirely implausible
that the employee was throwing stones at birds,
is not one which a reasonable decision maker could have reached. In
the premises
the second respondent in making her finding committed a
gross irregularity.
[32] In the premises, the Commissioner’s findings
in items 1 to 4 (on page 6 of her award) are reviewed and set aside.
Her
finding is substituted with a finding that the dismissal of the
employee, Mr P Mashigo, was substantively fair. In my view it is
appropriate, after considering Ms Chenia’s and Mr Mphepya’s
arguments, to make a cost order against the third respondent.
There
is no reason why the rule that cost should follow the result, should
not be applied in this matter.
Order
[33] In the circumstances, I make the following order:
33.1. Items 1 to 4 (on page 6) of the second
respondent’s written award dated 23 November 2010 are reviewed
and set aside;
33.2 Items 1 to 4 of the aforesaid award is substituted
with the following finding :
The dismissal of Mr Peter Mashigo by the employer is
substantively fair.
33.3 Item 5 of the aforesaid award is left unaltered.
[34] The third respondent is to pay the costs of this
application.
_____________________
Van Graan, AJ
Acting Judge of the Labour Court of South Africa
APPEARENCES
For the Applicant: Adv Chenia, instructed by Glyn Marain
Attorneys
For the 1
st
& 2
nd
Respondents:
Tricker Inc.
For the 3
rd
Respondent: Mabaso Attorneys
1
[
2007]
12 BLLR 1097
(CC)