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[2014] ZALCJHB 530
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Filter and Hose Solutions a division of Hudaco Trading (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR601/11) [2014] ZALCJHB 530 (23 January 2014)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable/Not reportable
Case no. JR 601/11
In the matter between:
FILTER AND HOSE SOLUTIONS
A DIVISION OF HUDACO TRADING (PTY) LTD
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First
Respondent
COMMISSIONER N MBHELE
Second
Respondent
CEPPWAWU obo P SEKHWELA
Third
Respondent
Heard:
7 January 2014
JUDGMENT
WILKEN, AJ
Introduction
[1] This is an
application in which the Applicant (“the Company”) seeks
to
review and set aside an arbitration award issued by the Second
Respondent (“the Commissioner”) issued on or about 6
February 2011 finding that the dismissal of Phusha Sekhwela (“the
Employee”), was procedurally fair but substantively
unfair, and
reinstating the Employee and ordering the Company to pay the Employee
R27000.00 in back pay.
Condonation
[2] The
Third Respondent (“CEPPWAWU”) representing the Employee
sought condonation
for the late filing of its answering affidavit. A
substantive application as filed in this regard and the issue of
condonation
was vigorously opposed by the Company.
[3] The
arbitration award, being the subject of this review was issued on or
about 10
February 2011, and the Company served and filed its review
application on or about 24 March 2011. There was a delay in
presenting
the review arising from the need to make an application to
compel the CCMA to deliver the whole record. The Rule 7A(6) and Rule
7A(8) notices were filed in court on 18 October 2012, some three
months after compliance by the CCMA in delivering the disks
containing
the mechanical recording of the proceedings.
[4]
CEPPWAWU filed its Answering Affidavit on 24 January 2013 which
according to proper
calculation amounts to a delay of 56 days. The
explanation tendered by CEPPWAWU for the late filing not only lacks
detail but does
not explain why steps were only taken during December
2012 to obtain instructions whether the application for review should
be
opposed.
[5]
The Company further makes much that the application for condonation
was only served
and filed in March and contends that that in itself
demonstrates that the union had no intention of opposing the review
and that
condonation for the late filing of the answering affidavit,
should on that basis alone be denied.
[6] The test for
granting condonation requires the court to consider a number of
factors,
and it is trite when exercising its discretion to grant or
refuse condonation, the court should not have regard only to one of
the factors, but make its decision having regard to all the factors
relevant to the granting of condonation.
[1]
[7] Whilst the
delay is not insignificant and the explanation not a full explanation
for
the delay, this must be balanced against the prospects of success
and the prejudice which the Applicant suffered or may have suffered
as a result of the late filing of its opposition to the review
application. Considering that some 20 months lapsed since the date
of
the award to the company finally filing its affidavit, and it having
taken almost 3 months in having the record transcribed
and filing its
supplementary affidavit, it is evident that the Applicant suffered
little, if any, prejudice by the delay of 56
days in CEPPWAWU in
filing its answering statement. Furthermore, considering the grounds
of review, the
prima facie
prospects the Employee has in
opposing the review, and the opposition to the review enabling a
proper ventilation of the dispute,
condonation is granted.
Background
[8] The
Employee was dismissed following a disciplinary inquiry on or about
16 August
2010 on charges of:
8.1
“
theft”;
8.2
“
disobeying of a
direct order”.
[9] The
complaint of theft arises from the Company’s contention that
the Employee
used the funds advanced on long distance trips to make
fictitious fuel purchases as the distances covered against fuel
consumed
was far in excess of the manufacturer’s
specifications. Accordingly, the Company concluded that the Employee
was guilty of
theft of company funds utilised to purchase the fuel
the company contended could not reasonably have been used by the
Employee
when executing his duties for the Company.
Arbitration proceedings
[10] The Employee
challenged his dismissal successfully in the CCMA.
[11] The documents
before the court do not include the proceedings in the disciplinary
hearing. To
the extent that the Company referred to, or partially
challenged the Employee on the evidence given by him at the
disciplinary
hearing, the court was not able to come to any
conclusion as to whether certain issues were indeed raised or whether
the Employee
had a different defence or had admitted certain issues
as contended for by the Company during the disciplinary hearing. To
the
extent that reliance was placed on Venter’s evidence at the
disciplinary hearing during the arbitration proceedings the court
has
not had the benefit of Venter’s version as he was not called as
a witness at the arbitration proceedings nor is the disciplinary
proceedings record available.
[12] No evidence of
whatsoever nature was led during the arbitration proceedings
concerning the complaint
put to the Employee regarding him allegedly
having disobeyed a direct order. To the extent that he may have been
found guilty of
this complaint, and it is not clear from the notice
of dismissal whether he was, no evidence was produced at the
arbitration proceedings
which would justify him being found guilty of
such complaint. Such alleged misconduct can therefore not be taken
into account in
determining this matter.
[13] The Company called
two witnesses, one Bertus Nienaber (“Nienaber”), the
assistant
to the warehouse manager and one Martin Peterson
(“Peterson”), the financial director and chairman of the
disciplinary
hearing.
[14] Nienaber gave
evidence with reference to the bundle of documents put up by the
Company. The documents
consisted of a summary of fuel purchases
during July 2010, summaries of distances travelled on the days fuel
was purchased and
the average consumption on these trips undertaken
by the Employee. Nienaber contended such evidence demonstrated that
the Applicant’s
vehicle was using excessive fuel as its
consumption far exceeded the consumption the manufacturer gives out
as the average consumption
for such vehicle.
[15] Nienaber further
gave evidence comparing C-Track trip reports (a vehicle tracking
system) and
comparing the position of the Employee’s vehicle
from time to time when fuel was purchased by the Employee, or the
Employee
passed through toll gates. The Company relied on such
evidence to contend that the Employee could not have been at the
location
where the fuel was purchased as the vehicle tracking system,
placed the Employee at a different location.
[16] Nienaber further
gave evidence that he personally telephoned the Toyota dealer to
obtain the
average consumption of a vehicle such as the Employee was
driving and that the dealer allegedly emailed him confirmation of the
average use of a vehicle such as the one the Employee was driving.
That email was not introduced into evidence by Nienaber.
[17] Nienaber also
testified that one of the purchases for fuel related to petrol being
purchased,
but once again, that fuel slip was not tendered into
evidence at the arbitration proceedings.
[18] Nienaber gave
evidence that the vehicle had to be serviced every 10,000 kilometres,
but if regard
is had to the service record it is evident that the
vehicle was only serviced every 20,000 kilometres. The Applicant
contended
that the service record demonstrated that the vehicle had
no faults which would explain the alleged excessive fuel consumption
compared with that given by the manufacturer.
[19] Under cross
examination it was put to Nienaber that his contention that the
Employee was not
at the filing station when fuel was purchased (the
slips tendered by the Employee to explain the usage of petty cash
given to him)
wrong and based upon an incorrect interpretation of the
C-track report. The C-Track report reported a location at the end of
the
trip and accordingly the end time of the trip should be compared
with the time on the fuel slip rather than start time of the
trip.Nienaber’s
evidence as to the location of the Employee’s
vehicle not being where he contended it to be was therefore not
supported at
all by the documents he relied upon.
[20] Insofar as Nienaber’s
contention that the vehicle’s fuel usage was excessive, he
admitted under cross examination that he did not perform any test
with the vehicle to determine the vehicle’s actual consumption,
nor did he take any steps to determine whether the vehicle’s
fuel consumption was in accordance with the manufacturer’s
assessment of average consumption for such vehicle.
[21] Nienaber’s
evidence was quite unsatisfactory and it was evident that he was
called upon
to give evidence on documents which he was neither
familiar with nor understood at all. His recollection of events
is also
rather spectacularly inadequate, one such incident being
demonstrated by the following extract from his evidence:
‘
MISS M S ROELOFSE:
What
was the expected fuel consumption on the vehicle the Applicant drove?
MR NIENABER:
According
to the dealership Toyota in Boksburg, it is between 11 to 12
kilometres per litre
.
MR RAMOTHATA:Repeat that.
MR NIENABER:
According
to the dealership Toyota Boksburg, they said it is the fuel
consumption, it is an average between 10 to 11 kilometres
per litre’.
[22] Nienaber’s
evidence was equally unsatisfactory when he was questioned about the
factors
which could influence fuel consumption. He was only able to
tender the possibility of theft or a fault to the vehicle as an
explanation
for consumption above the expected
manufacturer’s/dealer’s average. Under cross examination
he immediately conceded
other factors could also influence
consumption such as speed.
[23] The final nail in
Nienaber’s evidence was his concession that there was no
evidence at
the disciplinary hearing demonstrating that the Employee
was guilty of stealing. The following extract is quite instructive in
this regard:
‘
MR RAMOTHATA:
So,
the opinion that you are holding was informed, or if you had not done
that what informed opinion that you raised that these
people were
stealing the diesel?
MR NIENABER:
I
did not say he was stealing, I said there was a problem with the
truck. The only problem that I can think of is stealing because
if
you can see your slips, fuel consumption, all of that, it is not
corresponding, that is why I made, the suspected I think it
is
stealing’.
[24] The Company’s
only other witness was the chairman of the disciplinary hearing,
Peterson.
Apart from his evidence in chief and cross examination
concerning the procedural fairness of the disciplinary hearing (which
was
not being challenged in the review proceedings), he gave no
evidence in chief which could assist the Company in proving the
Employee’s
guilt on the complaint of theft. The sum total of
his evidence in chief in relation to the matter to be determined by
the court
was:
‘
MISS ROELOFSE: How did you reach your
decision to dismiss Mr Sekhwela?
MR PIETERSON: The company presented evidence with regard to fuel
consumption relative to kilometres driven and based on that evidence
I reached the conclusion that Mr Sekhwela should be dismissed.
MISS ROELOFSE: While presenting the evidence did Mr Sekhwela dispute
the evidence presented by the employer?
MR PIETERSON: Mr Sekhwela denied any theft of monies that is the
extent of his dispute’.
[25] In cross
examination, Mr Peterson conceded that he had no direct knowledge
regarding any theft
by the Employee, nor was he able to say how much
money it is alleged that the Employee had stolen. Interestingly
enough, when questioned
about the vehicle’s excessive
consumption giving rise to the suspicion of theft, he testified that
it was one Venter who
gave such evidence before him. In view of
Petersen’s evidence, Nienaber’s evidence at the
arbitration must, in the
circumstances, be viewed with considerable
circumspection. Peterson also conceded that the Employee was never
confronted about
his alleged excessive consumption when he presented
his fuel vouchers for reconciliation and conceded that the Employee
denied
that he had stolen any cash as contended for by the Company at
the disciplinary hearing.
[26] The Employee
testified that the petrol voucher relied upon by the Company to
contend that he
presented a fictitious voucher to demonstrate that he
had purchased petrol instead of diesel was only raised with him at
the disciplinary
hearing and that that voucher was almost illegible.
He denied ever handing in that slip or any slip in respect of the
purchase
of petrol and stated that he was never challenged during any
reconciliation meeting done on a daily basis that he had presented
a
petrol voucher or fictitious voucher.
Grounds of review
[27] The Applicant seeks
to review the Commissioner’s arbitration award on the basis
that her
finding was disconnected with the evidence and that the
Commissioner did not apply her mind in assessing the evidence.
[28] The nub of the
Company’s attack on the Commissioner’s award is that the
Commissioner
disregarded the evidence by the Company’s
witnesses concerning the excessive fuel consumption and erred in
disregarding the
hearsay evidence of the Company as to the average
fuel consumption. It is further contended the Commissioner committed
gross misconduct
in failing to accept the evidence given by Nienaber
concerning the analysis of the fuel consumption, and Nienaber’s
evidence
on the probability of the Applicant not having been at the
places where fuel was purchased at the time and place that the fuel
slip evidenced, having regard to the vehicle tracking system (C track
report).
Test on review
[29]
The Commissioner’s decision stands to be set aside upon review
if the decision made by
the Commissioner is one which a reasonable
decision-maker could not reach.
[2]
It has now been authoratatively stated by both the Supreme Court of
Appeal and the Labour Appeal Court that when considering the
Commissioner’s decision, the court should not adopt a
piece-meal approach and set aside the Commissioner’s decision
merely because the Commissioner may have erred in one respect or
another, but that the court must only set aside the Commissioner’s
decision when such decision is one a reasonable decision maker could
not take having regard to all the material before the
Commissioner.
[3]
Evaluation
[
30] The Applicant
contends that the Commissioner’s finding that the Applicant
ought to have
called the dealer to give evidence as to the average
fuel consumption (such as the one driven by the Employee)
demonstrates the
Commissioner erred in applying the legal principles
in assessing the evidence presented. Given the evidence of Peterson
that it
was Venter who presented that evidence at the disciplinary
hearing and not Nienaber, Nienaber’s assertion that he called
the dealer must be viewed with great circumspection, especially in
circumstances where the Applicant took no effort to present the
alleged email from the dealer, especially given that Nienaber was
challenged in this regard on 7 December 2010 and Peterson only
gave
evidence on 17 January 2011.
[31] As indicated
above, Nienaber’s evidence regarding the average consumption
was in any event
questionable as he gave two versions as to the
average consumption. The consumption the Applicant contends for was
at best speculative.
[32] The Applicant
failed to demonstrate the actual consumption of the vehicle in
question in circumstances
where it could readily have done so. Under
cross examination, it was put to Peterson that the calculation of the
average consumption
would be inaccurate if no record is available as
to what fuel was in the vehicle at the time the Employee commenced
the journey
and no regard was heard as to the fuel left in the
vehicle at the end of the journey. In addition, much is made that the
vehicle
the Employee had driven used more fuel than similar vehicles
driven by other drivers, but no such evidence was ever tendered.
Considering
the test to apply in relation to circumstantial evidence,
it cannot be held that the Commissioner erred in evaluating the
evidence
as the inference the Company contended for was not the only
reasonable plausible influence to be drawn, nor was it in any event
based on fact.
[33] As indicated
above, the Applicant’s reliance on the C-Track report to place
the Applicant
at different locations at the time he fills fuel into
the vehicle, is based on an incorrect interpretation of the C-Track
report.
[34]
For all the reasons set out above, I do not believe that the
Commissioner committed a reviewable
irregularity nor is the award one
a reasonable decision maker could not have reached having regard to
the material before him.
[35]
I am mindful that costs do not necessarily follow the result in
labour proceedings.
[4]
However, in the current matter it is one where it would be
appropriate to award costs to the Employee, given that:
1.
the Applicant’s
witness, Nienaber conceded that he was unable to prove that the
Employee was guilty of theft;
2.
the Applicant’s
witness, Peterson, the financial director, could not state the value
of the theft, nor was he able to state
whether fuel and/or cash was
stolen;
a.
the Employee was
dismissed for theft and failing to obey a direct order in
circumstances where there was no evidence presented of
any theft or
him disobeying a direct order;
b.
the Applicant persisted
at the arbitration proceedings, in the review papers and to a lesser
extent in court that the C-Track report
demonstrated that the
Employee could not have been at the place where he put fuel into his
vehicle as the fuel purchase slips showed
him to be at a different
location, notwithstanding it having been pertinently pointed out to
Applicant’s witnesses during
the arbitration proceedings that
its reliance on the C-Tract report was misguided.
[36] For all of the above
reasons, the Company’s case was without prospects which put the
Third
Respondent unnecessarily to the trouble and expense of pursuing
the proceedings.
[37] Furthermore, by
pursuing a review with no prospects of success, it kept the Employee
not only
out of employment, but deprived him of his income from the
date of his reinstatement order, which has no doubt caused
considerable
hardship to the Employee and those who depend upon him.
[38] I accordingly, issue
the following order:
1
the review is
dismissed;and
2
the Applicant is to pay
the Third Respondent’s costs on a party and party scale
excluding the costs in relation to the application
for condonation.
_____________________
Wilken, AJ
Acting Judge of the Labour Court of South Africa
23 January 2014
APPEARANCES:
FOR THE APPLICANT:
Attorney PJ Strydom of Jarvitz Jacobs Raubenheimer Inc.
FOR
THE THIRD RESPONDENT:
Advocate N Basson
instructed
by Cheadle Thompson Haysom Inc.
[1]
Melane v Santam Insurance Co. Ltd
1962 (4) SA 531
at 532 C-F and
NUM v
Council for Mineral Technology
[1999]
3 BLLR 209 (LAC)
[2]
Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others
[2007] (12 BLLR 1097
(CC) at para 110.
[3]
Herholdt v Nedbank Limited
(2013) 34 ILJ 2795 (SCA) and
Goldfields
Mining SA (Pty) Ltd v CCMA and Others
(JA
2/2012)
2013 ZALAC 28
(4/11/2013).
[4]
Ball v Bambala Bolts (Pty) Ltd and Another
[2013] 9 BLLR 843
(LAC).