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[2014] ZALCPE 4
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Toto v Commission for Conciliation, Mediation and Arbitration and Others (P287/11) [2014] ZALCPE 4 (9 May 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT PORT ELIZABETH
NOT
REPORTABLE
CASE
NO: P287/11
In
the matter between:
VUYANI
HENDRY
TOTO Applicant
And
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER
NONTUTHUZELO MABENGE Second
Respondent
SASKO
BAKERIES Third
Respondent
Heard:
28 May 2013
Delivered:
9 May 2014
Summary:
A commissioner may rely on circumstantial evidence in determining
the
fairness
of a dismissal.
Review
in terms of Section 145 of the LRA-Dismissal for misconduct.
JUDGMENT
Lallie
J
Introduction
[1]
In this application, the applicant seeks an order in terms of section
145 of the Labour
Relations
Act 66 of 1995 (“the LRA”) reviewing and setting aside
the arbitration award of the second respondent (“the
commissioner”). It is opposed by the third respondent.
Factual
background
[2]
The applicant was employed by the third respondent, a bakery, on 1
August 2006. He
was
dismissed for misconduct on 17 September 2010 at a time he was a
bread loader at the dispatching department of the third respondent.
His main responsibility was to load bread in the third respondent’s
delivery truck. The misconduct which led to his
dismissal was
dishonestly which involved the removal of the third respondent’s
property, 200 loaves of white bread, without
authorisation from a
stock controller at the bread dispatch area. The bread was
found in one of the respondent’s trucks
on the evening of 22
July 2010. The truck in question is truck 25 and it was
supposed to be empty when the discovery was
made. The third
respondent’s version was that the applicant had placed the
bread in the truck without the necessary
authority and asked a driver
to move the truck from where it was parked so that its doors could be
closed. The applicant
denied ever talking to the driver on the
day in question and denied having knowledge of how the bread got to
be in truck 25 on
the evening of 22 July 2010. Based on direct
evidence and circumstantial evidence the third respondent decided
that the applicant
was responsible for the unauthorised removal of
the bread and dismissed him. He challenged the fairness of his
dismissal
at the first respondent where the commissioner issued the
award the applicant seeks this court to review and set aside.
Grounds
for review
[3]
The applicant submitted that the commissioner committed gross
irregularities by her failure to take into consideration
some aspects
of the evidence before her while evaluating the inherent probalities
of the dispute. The applicant attacked
the award also on the
grounds that the commissioner failed to play an inquisitorial role
and establish how the applicant managed
to load the bread
unnoticed. He sought to rely on the commissioner’s
reliance on circumstantial evidence in the absence
of direct evidence
by criticising the manner in which the commissioner dealt with
circumstantial evidence. The applicant
further submitted that
the commissioner committed further gross irregularities by concluding
that the sanction of dismissal was
appropriate without giving reasons
for the finding and by her failure to establish whether
the trust relationship had
broken down.
The
law of review
[4]
For the applicant to succeed in this application he needs to prove
that the commissioner reached a decision a reasonable decision
maker
could not reach on the material before her. See
Sidumo
and Others v Rustenbergurg Platinum Mines Ltd and Others
[1]
.
[5]
In Gold
Fields
Mining SA (Pty) Ltd(Kloop gold Mine) v CCMA and Others
,
[2]
the correct approach in reviewing arbitration awards in terms of
section 145 of the LRA is expressed as follows:
‘
In
a review conducted under section 145 (2)(a)(ii) of the LRA, the
reviewing court is not required to take into account every factory
individually, consider how the arbitrator treated and dealt with each
of those factors and then determine whether a failure by
the
arbitrator to deal with one or some of the factors amounts to
process-related irregularity sufficient to set aside the award.
This piecemeal approach of dealing with the arbitrator’s award
is improper as the reviewing court must necessarily consider
the
totality of the evidence and then decide whether the decision made by
the arbitrator is one that a reasonable decision-maker
could make’.
The court further clarified in para 16 that ‘a reviewing
court must ascertain whether the arbitrator
considered the principal
issue before him/her, evaluated the facts presented at the hearing
and came to a conclusion that is reasonable’
[6]
A reading of the award reveals that the commissioner considered
the principal issue before her which was whether the applicant’s
dismissal for misconduct was fair. She evaluated the evidence
before her. The totality of the evidence before the
commissioner was that loading bread into trucks was one of the
applicant’s responsibilities. On the evening of 22 July
2010, truck 25 was supposed to be empty. The third respondent’s
version was that the applicant approached a driver,
Mr Ntlonze
(Ntlonze), at the smoking room and asked him to move truck 25 so that
its doors could be closed. Later 200 loaves
of white bread were
found loaded in the truck. The applicant denied ever talking to
Ntlonze or knowing him. It
was not the applicant’s
duty to either drive trucks or close their doors. Before truck
25 was moved, it was parked
such that its doors were not closed.
[7]
The commissioner evaluated the evidence before her, accepted
Ntlonze’s evidence and She further evaluated the third
respondent’s evidence including circumstantial evidence.
She found that the probabilities were that the applicant
was the one
who placed the bread in the truck. He closed the tuck doors out
of self interest as closing truck doors was
not his responsibity.
She found that both direct and circumstantial evidence proved that
the applicant had loaded the bread
into the truck.
[8]
The commissioner considered the appropriateness of the sanction and
made a finding that it was appropriate.
[9]
Section 138 (7) of the LRA required the commissioner to give brief
reasons for her decision. An assessment of the award
proves
that the commissioner complied with the provisions of section 138
(7). A reading of the award proves that she applied
her mind to
the issue. The award falls within bounds of reasonableness in
that the commissioner reached a decision a reasonable
decision-maker
could reach on the material before her.
[10]
In the premises, the application is dismissed.
Lallie
J
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant:
Mrs Van Staden of the P.E Justice Centre
For the Third
Respondent: Ms Kok of
Van Zyl Inc
[1]
2008
(2) SA (CC)
[2]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAR) at para 18