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[2014] ZALCJHB 48
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Vaalriver Motors CC v Dispute Resolution Centre and Others (JR3063/2010) [2014] ZALCJHB 48 (25 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
JUDGMENT
REPORTABLE
CASE
NO: JR 3063/2010
In
the matter between:
VAALRIVER
MOTORS
CC APPLICANT
and
DISPUTE
RESOLUTION
CENTRE 1
st
RESPONDENT
ERNST
RICHTER
N.O.
2
nd
RESPONDENT
NUMSA
obo THOMAS
HADEBE
3
rd
RESPONDENT
Heard:
21 February 2014
Delivered:
25 February 2014
Summary: (
Review-application of Herholdt test)
JUDGMENT
LAGRANGE,
J
[1]
The
applicant in this matter is a filling station business run by a
husband and wife, Mr and Mrs Botha. The second respondent, the
arbitrator, found that the dismissal of the third respondent, Mr T
Hadebe, on 14 July 2009 was procedurally and substantively unfair
and
ordered payment of compensation of eight months’ remuneration
to the third respondent.
[2]
The
third respondent was dismissed for theft after he allegedly admitted
at the disciplinary enquiry that he had stolen takings
received for
petrol. It should be mentioned that he had been charged with gross
negligence and poor work performance. The enquiry
was convened when
the applicant realised that there was a significant discrepancy
between the value of receipts from customers
and the quantity of
petrol actually pumped on a particular shift. On the payment
receipts issued, the garage should have
sold about 472 litres during
the shift but in fact only pumped 311 litres, meaning that customers
collectively paid for a third
more fuel than they actually received.
The ‘excess’ cash equivalent to the overcharged amount
was missing.
[3]
The
hearing was conducted by Mr Botha with his wife in attendance. Mrs
Botha testified that when the third respondent was asked
to explain
the irregularity he admitted he had taken the money. This was
corroborated by other witnesses of the respondent. The
third
respondent said he never admitted he was guilty. Rather, Mr Botha
simply told him he was guilty and was dismissed without
being given
an opportunity to state his case. He also testified that only one of
the cash slips on the day in question had been
signed by him and the
others had been signed by a petrol attendant, who was identified only
as ‘Jacob’ in the proceedings.
[4]
Jacob
was also disciplined arising from the incident but received a final
written warning. Mrs Botha also testified that during
the shift when
the overcharging occurred, Joseph and Mr Hadebe both worked on the
pumps and the till but, as the cashier, Mr Hadebe
was the responsible
person on the shift. Significantly, there was no evidence before the
arbitrator that Joseph had admitted to
theft as Hadebe allegedly had,
nor was it very clear what Joseph was found guilty of.
[5]
The
Commissioner found that Mr Hadebe’s dismissal had been
procedurally unfair because the chairperson had also initiated
the
proceedings after being informed of the reconciliation problem by his
wife. He found that the chairperson was involved in the
investigation
and prosecution of the matter and those facts he considered
sufficient to establish a reasonable perception of bias.
He further
accepted the evidence of three of the employer’s witnesses that
the Mr Hadebe had admitted his guilt, but the
arbitrator was not
satisfied that the ‘additional evidence’ tendered was
sufficient to prove the charges against the
employee. Further, he
held that even if the employee was guilty, the fact that Joseph, who
was involved in the same incident, was
only issued with a final
written warning amounted to inconsistent treatment and was unfair.
[6]
The
first ground of review is that the arbitrator could not justifiably
have concluded that the procedure was unfair simply because
the
chairperson of the enquiry was aware of the misconduct before
chairing the hearing. Further, it is claimed there was no suggestion
of bias raised in the enquiry
on
this basis. I am inclined to agree this ground of review is well
founded. The supposed bias of the chairperson was not raised
in
cross-examination, nor was it put to the applicant’s witnesses
that it would be relied on as a reason for saying the enquiry
was
unfair. Moreover, the arbitrator clearly failed to consider the
context of the business he was dealing with, which was a material
omission.
[7]
Accordingly,
I am satisfied it was improper of the arbitrator to raise an issue of
procedural unfairness which had not been raised
by the third
respondent and then to make a finding on it.
[1]
Even if he had been correct to make a finding on the issue, there was
no evidence before him to show that Mr Botha’s prior
knowledge
affected his judgment, nor that the third respondent expressed any
perception that Mr Botha had been biased in the sense
meant by the
arbitrator.. Accordingly, his finding on procedural fairness is not
one a reasonable arbitrator could have reached
and must be set aside.
[8]
Secondly,
the applicant attacks the rationality of the arbitrator’s
finding of substantive unfairness. The employer’s
reason for
the differential treatment of the third respondent and the attendant
was that, as the cashier on duty, the third respondent
was the
responsible person on the shift. The arbitrator appears not to have
considered this material factor in his deliberations,
and it is clear
that he regarded their culpability as on a par with each other,
whereas the evidence before him was that their
responsibilities and
therefore levels of accountability were not the same even if they
both performed similar duties during the
shift in question. Had he
explained why there was some justification for treating them the
same, despite their different responsibilities,
then, his decision on
sanction might have been rationally explicable. But without that
there is no basis on the evidence for understanding
why Joseph and Mr
Hadebe’s respective degrees of responsibility might not have
justified disparate disciplinary sanctions.
[9]
However,
even if the arbitrator seems to have ignored the relevance of their
different degrees of responsibility does this mean
the court can set
his finding on sanction aside? In
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013]
11 BLLR 1074
(SCA)
the
SCA said the following of the reasonableness review test laid down in
Sidumo
v Rustenburg Platinum Mines Ltd
2008 (2) SA 24
(CC)
:
[12]
......That test involves the reviewing court examining the merits of
the case “in the round” by determining whether,
in the
light of the issue raised by the dispute under arbitration, the
outcome reached by the arbitrator was not one that could
reasonably
be reached on the evidence and other material properly before the
arbitrator.
On
this approach the reasoning of the arbitrator assumes less importance
than it does on the SCA test, where a flaw in the reasons
results in
the award being set aside. The reasons are still considered in order
to see how the arbitrator reached the result. That
assists the court
to determine whether that result can reasonably be reached by that
route. If not, however, the court must still
consider whether, apart
from those reasons, the result is one a reasonable decision-maker
could reach in the light of the issues
and the evidence
.”
[2]
(emphasis
added)
Further
on in the judgment the SCA pronounced:
“
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator.
Material
errors of fact, as well as the weight and relevance to be attached to
particular facts, are not in and of themselves sufficient
for an
award to be set aside, but are only of any consequence if their
effect is to render the outcome unreasonable
.”
[3]
(emphasis
added)
[10]
What
the
Herholdt
rendering
of the
Sidumo
test
highlights is that it is simply a matter of convenience and possibly
deference to the arbitrator to first analyse the reasonableness
of
the arbitrator’s own explanation for their findings. This is
because the second phase of the analysis will always have
to be
undertaken,even if the arbitrator’s own justification for the
findings is unreasonable, and it will
always
be
the decisive analysis.
[11]
In
this case the arbitrator plainly did not feel that Mr Hadebe’s
higher degree of accountability in his capacity as cashier
made any
difference when considering an appropriate sanction. His reasoning
was that there was no justification for distinguishing
Mr Hadebe’s
misconduct from that of Joseph because they were doing the same work.
The arbitrator appeared to assume that
as they had both been
implicated and because both of them had been involved in the
operating the till and the pumps during that
shift, their misconduct
was necessarily on a par. The first difficulty with the arbitrator’s
reasoning is that there was
no evidential basis for concluding that
they had both been found guilty of theft. Thus there was no reason
for the arbitrator to
even suppose he was dealing with persons who
were found guilty of the same misconduct. All he really knew was that
they were both
charged arising from the overcharging incident.
Secondly, even if they had been swapping duties that
shift, it was
never disputed that Hadebe had occupied the more
responsible position. In short, there was no evidence on important
issues pertinent
to the question of consistency for him to assume he
was really dealing with comparable cases, aside from the fact that
they had
both been facing disciplinary action arising from the same
events.
[12]
As such, the arbitrator’s own rationale for making his finding
of inconsistent treatment is not one that was reasonable,
and there
was wholly insufficient evidence to support such a finding on any
alternative rationale. Consequently, the requirements
of both legs of
the reasonableness test in
Sidumo
as
rephrased in
Herholdt
are
met.
[13]
Once
the claim of bias falls away, Mr Hadebe’s claims of procedural
unfairness were insubstantial. There were a number of
postponements
of the enquiry to accommodate his difficulties in obtaining
representation and the employer did not act unfairly
in that regard.
On the substantive issue, the shortfall between the missing cash
amounted to a third of payments received from
customers. It did not
go missing through negligence but theft. It is true that Mr Hadebe
had eleven years service with the employer,
but he was placed in a
position of trust which he abused. On the employer’s version,
which I accept on a balance of probabilities
was supported by the
evidence, Mr Hadebe confessed to theft. As Mr Hadebe denied having
confessed, he understandably did not seek
to rely on the confession
as a mitigating factor. I cannot say that dismissal was not an
appropriate sanction in the circumstances.
[14]
In
the circumstances,
14.1
The
arbitration award of the second respondent issued on 12 September
2010 under case number MINT 19805F is reviewed and set aside;
14.2
The arbitrator’s finding on the unfairness
of the third respondent’s dismissal is substituted with a
finding that the
dismissal was substantively and procedurally fair.
14.3
No
order is made as to costs.
____________
R
LAGRANGE, J
Appearances:
For
the applicant: Adv
K Lapham instructed
by Geldenhuys CJ at Law Inc
For
the third respondent: Mr N Masutha of NUMSA
[1]
See
e.g.
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
(2010)
31
ILJ
452
(LC)
at
468, par [31] and cases cited in fn. 16 of the decision.
[2]
1080
at
para
[12]. This
formulation
of the
Sidumo
test
approach was already adopted by the LAC in
Fidelity
Cash Management Service v Commission for Concili
at
ion,
Mediation & Arbitration & others
(2008)
29
ILJ
964
(LAC)
where
Zondo JP said, at 997, para [102]:
“
In
many cases
the
reasons which the commissioner gives for his decision, finding or
award will play a role in the subsequent assessment of whether
or
not such decision or C finding is one that a reasonable decision
maker could or could not reach. However, other reasons upon
which
the commissioner did not rely to support his or her decision or
finding but which can render the decision reasonable or
unreasonable
can be taken into account.
This
would clearly be the case where the commissioner gives reasons A, B
and C in his or her award but, when one looks at the
evidence and
other material that was legitimately before him or her, one finds
that there were reasons D, E and F upon which
he did not rely but
could have relied which are enough to sustain the decision.”
[3]
1084
at para [25]