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[2013] ZALCJHB 133
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G4S Cash Services SA (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (JR 2551/10) [2013] ZALCJHB 133 (31 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
case no: JR 2551/10
In the matter between:
G4S CASH SERVICESSA (PTY) LTD
...................................................................
Applicant
and
THE NATIONAL BARGAINING COUNCIL FOR
THE ROAD FREIGHT INDUSTRY
.............................................................
First
Respondent
COMMISSIONER E. TLHOTLHALEMAJE
..........................................
Second
Respondent
GIYANI
TIMOTHY BALOYI
......................................................................
Third
Respondent
Heard: 07 January 2013
Delivered: 31 May 2013
judgment
NAIDOO; AJ
Introduction
This
is an application to review and set aside an arbitration award made
by the second respondent (the arbitrator) under case
number
GPRFBC12160, in terms of which the third respondent (employee) was
awarded retrospective reinstatement.The application
is opposed by
the employee.
Background facts
The employee commenced his employ with the applicant (the employer)
on 09November 1998 and at the time of his dismissal occupied
the
position of ‘Bank Supervisor’.
On 06 May 2010 he was dismissed for;
‘
Gross Negligence in that you failed to
perform your duties as a supervisor’.
The
employee referred a dispute to the first respondent (Bargaining
Council), challenging only the substantive fairness of his dismissal.
Evidence led at arbitration
At arbitration the applicant led the evidence of 2 witnesses; Alfred
Mazibuku and Ravidran Reddy.
Mazibuku, the initiator at the employee’s internal enquiry
testified that a bank marshal, Thandi, who received money bags
from
the applicant’s vans at the bank, reported a money bag missing
to the employee. The employee, according to Mazibuku
failed to
inform the applicant of this missing bag. Further to this, Mazibuku
testified that the employee did not balance the
money bags on the
day in question which formed part of his duties and had he done so,
he would have been altered to the missing
bag. Mazibuku conceded he
did not speak to Thandi regarding this incident and was only
informed by the investigator, one Oosthuizen,
that Thandi reported
the incident of the missing bag to the employee. However, according
to Mazibuko the employee informed him
that Thandi did indeed report
the missing bags to him. In terms of the quantum of money contained
in the bag, Mazibuku said it
was 1.7 million rand. When asked to
produce evidence that the bag was indeed missing and to the alleged
quantum, Mazibuku’sresponse
was that the applicant was altered
to the missing bag by its client and its own investigations
confirmed same, however Mazibuku
did not produce the investigation
report on which he relied on.Mazibuku concluded by saying Thandi was
dismissed for the same
missing bag in that she signed for the entire
consignment without recording that each bag in the said consignment
was in fact
there.
The applicant’s second witness was Reddy the manager of the
applicant’s branch at Cleveland and the chairperson at
the
employee’s enquiry. Reddy testified that he found the
applicant guilty of the charge as he, the applicant had admitted
to
not following laid downprocedures, more specifically he failed to
balance the bags on the day. When asked what evidence was
before him
at the internal enquiry to suggest a bag was missing, Reddy’s
reply was that he relied on the investigation
report, assumable
prepared by Oosthuizen.
In his evidence the employee denied Thandi informing him of a
missing bag or that it was his duty to balance money bags, as this
duty was performed by a Bank Marshall.
The award
The arbitrator held the applicant had failed to establish a case
against the employee and in the absence of calling Thandi, the
investigator, Oosthuizen or introducing the investigation report,
the applicant had relied on hearsay evidence, which in terms
of the
Law of Evidence Amendment Act
1
(LEAA), stood to be rejected.
In accepting the employee’s version, the arbitrator went on to
address the issue of balancing the bags. The arbitrator
referred to
a Bank Supervisor’s duties wherein it stated that a supervisor
must balance the receipt of all the work that
came in against the
signed copies of the work handed to the bank. On this understanding
the arbitrator held the employee could
not have noticed the missing
bag, if the Marshall who received the bags on the day, i.e. Thandi,
did not advise him of anymissing
bag in the first place.As recorded
earlier the arbitrator found the employee’s dismissal
substantively unfair and awarded
him retrospective reinstatement.
Grounds of Review
Mr. Pocock, appearing for the applicant set out 2 grounds on review.
The first was that the arbitrator failed to consider the
employee
had, at the internal enquiry admitted to have failed to perform his
duty of balancing the bags on the day in quetion.
This, according to
Mr Pocock, was one of the employee’s primary duties and given
the high degree of care expected of employees
in this industry, the
arbitrator should have found the employee guilty of gross negligence
irrespective of whether or not money
bags went missing.
The second ground on review was that the arbitrator ‘simply
endorsed a blanket rejection of the evidence as hearsay’,
without testing the reliability of the said evidence as well as
taking into account what transpired at the internal enquiry.
Evaluation
On the first ground, it is worthwhile noting that the employee, at
arbitration, disputed the allegation that it was his duty
to balance
the money bags. As the arbitration is a
de novo
hearing, it
does not necessarily follow that an employee who changes his or her
version from what they said at the internal hearing
to what they say
at arbitration, stands to fail in their claim for an unfair
dismissal for this reason alone.An inconsistency
of this nature will
have a bearing when the arbitrator has to make a finding on
credibility.
In any event, the arbitrator in casu accepted that the employee
should have balanced the bags. In doing so the arbitrator,
justifiably in my view, further found that the employee’s
failure to do so did not result or contribute to the alleged missing
money bags. I use the word ‘alleged’ for the reason that
this allegation was in dispute.
Be that as it may, it is with regard to the fact that at all
material times, the employer’s case was that the negligence
of
the employee contributed to the alleged bags going missing and it is
for this reason that Mr. Pocock’s argument stands
to fail. It
was never the case of the employer,both at the internal enquiry or
at arbitration, that the employee’s failure
to balance the
bags, rendered him guilty of gross negligence and for this reason
alone, the sanction of dismissal was justified.
For the sake of being thorough, I will record extracts from both the
internal enquiry as well as the arbitration, to illustrate
this
point. Mazibuku at arbitration stated that had the employee balanced
the bags he would have realised certain bags missing.
This was
confirmed by Qwen Kwankis, a Box Room Controller who testified to
the same effect at the internal inquiry.
At the internal enquiry, Mazibuku who was the initiator, again held
the same view when, in his closing statement, said the following
when referring to the employee, ‘
he failed to double check
and balance in the evening before they closed for the day end which
was going to make things easier
for everybody and the bags that went
missing should be accounted for’
Reddy, who was the chairperson, said the following when handing his
finding down at the internal enquiry:‘
.....it was mentioned
that an amount of R1700 000 was lost due to gross negligence and the
breech of procedures..... you yourself
failed to adhere to the
procedures that were drawn up, I have no alternative but the
sanction of dismissal as you were aware
of the rule in place and you
failed to adhere to the rule that needed to be followed, failure of
following this rule contributed
to the loss of the missing
cash....’
. Under cross examination at arbitration, it was
put to the employee that he was negligent by not balancing the bags
and therefore
did not notice the missing bag.
The same representative when handing up written submissions says
:
‘The applicant was found guilty on charges relating to gross
negligence in failing to perform his duties with regard to
failing
to report a missing bag by failing to perform his checks and
balances which subsequently led to the loss of client of
approximately R1.7 Million...’
Given this overwhelming evidence, I am satisfied that the employee
was dismissed for alleged actions which resulted in certain
bags
allegedly going missing. This was consistent at both the internal
hearing as well as the arbitration. The employer cannot
at this
stage introduce the argument that the arbitrator should have upheld
the employee’s dismissal once it was found
that he breached a
rule in the workplace. Nor was it the arbitrator’s duty to
mero motu
find the employee’s dismissal fair, once it
was established he breached certain procedure. Had the arbitrator
done so, he
would have acted contrary to the fact that his duty was
to ascertain the fairness of the dismissal, given at the time of
dismissal
(see
Fidelity Cash Managements Service v Commission for
Conciliation, Mediation & Arbitration & others)
2
.
In this regard, the high degree of care expected from employees in
this industry does not take the employer’s case further.
For
these reasons the first ground for review stands to fail.
With regard to the second ground, I pause at this stage to set out
what section 3 (1) of theLEAA says:
‘
'
(1) Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless -
(a) each party against whom the evidence is to be adduced agrees
to the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c) the Court, having regard to -
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon
whose credibility the probative value of such evidence depends;
(vi) any prejudice to a party to which the admission of such
evidence might entail; and
(vii) any other factor which should in the opinion of the Court be
taken into account, is of the opinion that such evidence should
be
admitted in the interests of justice, is of the opinion that such
evidence should be admitted in the interest of justice.'
An extract from the arbitrator’s award reveals the following:
‘
The
investigation report in this regard was not present nor made
available in these proceedings. The investigator, one Oosthuizen
was
not called to testify on the nature of and conclusions of his
investigations. The said Thandi was not called upon at any stage
to
testify, nor were attempts made to secure her testimony. If ever
there were attempts made to secure her testimony, they were
not
revealed in these proceedings....Both Mazibuko and Reddy relied upon
hearsay evidence, more particularly about what Thandi
and Oosthuizen
allegedly said. Such evidence should be rejected out-rightly as there
was no justification for it to be admitted
as contemplated by any
grounds under
section 3(1)
of the
Law of Evidence Amendment Act 45 of
1988
’
It seems other than making a sweeping statement that the hearsay
evidence led stands to be rejected in terms of the LEAA, the
arbitrator does not mention the considerations he took into account
when coming to such a conclusion, more particularly those
contained
in section3(1)(c), in ascertaining whether or not it would have been
in the interest of justice to admit the hearsay
evidence. When
dealing with these considerations the arbitrator was duty bound to
enquire why Oosthuizen or the investigationreport
was not led at
arbitration, similarly why Thandi was not present. If there was a
plausible reason for their absence then the
arbitrator should have
taken this into account when deciding whether or not to reject the
testimony of Reddy and Mazibuko.
Section 3(1)(c)
, in particular
subsection (vii) obliged the arbitrator to consider the fact that
not only did Oosthuizen, at the internal enquiry,
testify to what
Thandi said, Mazibuko also testified that the employee informed him
that Thandi did indeed advise him of the
missing bags and further
this was confirmed by Thandi in a conversation with Mazibuko.
Furthermore Oosthuizen’s testimony
was never challenged by the
employee. These are all critical factors the arbitrator should have
taken into account when ascertaining
whether or not to accept or
reject the hearsay evidence.
In the absence of the arbitrator making any mention of these factors
or what transpired at the internal enquiry and why, on those
facts
he rejected the hearsay evidence, one can infer that he failed to
take such factors into account.On this point in
Maepe v
Commission For Conciliation, Mediation & Arbitration &
another
3
the
Court said the following:
‘
While
it is reasonable to expect a commissioner to leave out of his reasons
for the award matters or factors that are of marginal
significance or
relevance to the issues at hand, his or her omission in his or her
reasons of a matter of great significance or
relevance to one or more
of such issues can give rise to an inference that he or she did not
take such matter or factor into account.’
These factors were critical for the arbitrator to assess when making
his finding on the admissibility of the hearsay evidence.Even
if the
employer’s representative did not raise these issues at
arbitration, the arbitrator, as mentioned, was duty bound
to
consider same when relying on
section 3.
In Maepe (supra) the Court said the following;
‘
....where
the law is that a commissioner must take into account a certain
factor in deciding a certain question, he is obliged to
take that
factor into account even if none of the parties asks him to take it
into account. When he is obliged to take it into
account, it is no
defence to say that he was not asked to take it into account. If the
factor was a critical one and he did not
take it into account, he may
well have committed a gross irregularity justifying the reviewing and
setting aside of his award.’
Whether or not the arbitrator would have arrived at the same
conclusion after a proper analysis of
section 3(1)
of the LEAA, is
not a point worth harbouring on for the reason that, a careful
assessment of
section 3
could have led to a consideration of the
hearsay evidence. The fact of the matter is that the arbitrator
failed to take into
account the considerations as set in the
relevant section and for this reason alone the award stands to be
reviewedand set aside.
Order
In the premises the following order is made:
The award under case number GPRFBC12160 is reviewed and set aside.
The matter is remitted to the first respondent to be considered
afresh by acommissioner other than the third respondent.
There is no order as to costs.
__________________
Naidoo; AJ
Acting Judge of the Labour Court
Appearances:
For the Applicant: Adv. Pocock
Instructed by Blake Bester Inc.
For the Third Respondent: Mr PhidzaulimaEnos
1
45
of 1988.
2
[200]
29 ILJ 964 (LAC).
3
[2008]
29 ILJ 2189 (LAC)
.