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[2014] ZALCPE 24
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Crown Chickens (Pty) Ltd t/a Sovereign Foods v Commission for Conciliation, Mediation and Arbitration and Others (P427/2009) [2014] ZALCPE 24 (12 August 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
reportable
Case
No: P427/2009
In
the matter between:
CROWN
CHICKENS (PTY) LTD t/a SOVEREIGN FOODS
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First
Respondent
YVONNE
GROOTBOOM N.O.
Second
Respondent
SIPHO VICTOR MATU
Third
Respondent
Heard:
25 April
2013
Delivered:
12 August 2014
Summary:
An award that is inconsistent with the evidence
led at the
arbitration may be reviewed and set aside.
Review in terms of
section 145 of the LRA – Dismissal for misconduct.
JUDGMENT
LALLIE
J
[1]
This is an application to review and set aside an arbitration award
of the second respondent (“the arbitrator”)
in which she
found the third respondent’s dismissal by the applicant unfair
and ordered his reinstatement. The arbitrator
furthermore ordered the
applicant to pay the third respondent an amount of R13 000.00 which
is equivalent to remuneration he would
have earned over a period of
two months. This application is opposed by the third respondent.
Factual
Background:
[2]
The applicant employed the third respondent as a long distance truck
driver on 24 April 2008. His main duty was to deliver the
applicant’s
products. In January 2009, the third respondent effected a delivery
at a business of one of the applicant’s
customers. The customer
noticed that his employees, instead of the third respondent and his
co-driver were offloading the goods
that were being delivered. When
he raised a query about the offloading an argument ensued between the
third respondent and himself.
He instructed the third respondent and
his co-driver to leave with the load. They complied. On the way they
were phoned by a representative
of the applicant who instructed them
to effect the delivery. They returned to the customer and effected
the delivery.
[3]
In February 2009, the customer filed a complaint via e-mail which the
applicant investigated and subjected the third respondent
to a
disciplinary enquiry in March 2009. The disciplinary enquiry
culminated in the third respondent’s dismissal which he
challenged at the first respondent. The arbitrator was charged with
the responsibility of arbitrating the dispute. She issued the
award
which the application seeks this court to review and set aside.
The
award
:
[4]
Giving reasons for her decision the arbitrator noted that the third
respondent was issued with a final written warning arising
from a
complaint which had been filed by a customer against him in December
2008. The arbitrator accepted the hearsay evidence
of the complaint,
which had been filed via e-mail on the basis that the third
respondent did not dispute that the incident had
taken place,
although he presented a different version. She also accepted the
third respondent’s evidence that he required
a long rope to
offload the truck which was not available when the first attempt to
offload was made. The arbitrator further accepted
that the third
respondent did not offload the truck at the first attempt, owing to
lack of protective clothing. She found that
the third respondent’s
refusal to offload the truck was not correct as offloading was not
the customer’s duty and that
both parties were at fault as the
customer did not provide the third respondent with a long rope to
make offloading easy.
[5]
The arbitrator was not persuaded that the third respondent had spoken
to the customer rudely by calling him “mlungu”.
She
considered that the incident occurred in December 2008 and was only
reported in February 2009. The delay led the arbitrator
to conclude
that the customer did not take the matter seriously. She made a
finding that in the circumstances she did not believe
that dismissal
was the appropriate sanction.
[6]
A further finding the arbitrator made was that the trust relationship
between the applicant and the third respondent had not
irrevocably
broken down. She acknowledged that the third respondent was not
before her with clean hands as he was not sensitive
enough to the
customer and did not offload the truck when it was his duty to do so.
She ordered reinstatement and payment of two
months’ salary for
the period he was out of work.
Grounds
for review
[7]
The applicant submitted that the arbitration award is unreasonable
and that the arbitrator committed gross irregularities within
the
meaning of section 145(1)(a)(2)(ii) of the Labour Relations Act
[1]
(“the LRA”). The arbitrator did not consider the
evidence, and that the third respondent had pleaded guilty to the
charges he faced at the disciplinary enquiry. A further attack on the
award is based on the manner in which the arbitrator dealt
with the
evidence. When accepting the third respondent’s explanation for
not off loading at the first attempt, that he did
not have protective
clothing, she lost sight of the fact that he still did not have it
when he ultimately offloaded. The arbitrator
did not consider the
reasons for the third respondent’s dismissal and limited her
enquiry to whether the third respondent’s
dismissal for making
a racial comment to the customer was unfair.
[8]
The Applicant submitted that the arbitrator miscalculated the period
of the delay in the reporting and taking of disciplinary
action in
finding that the incident that led to the third respondent’s
dismissal took place in December 2008 instead of January
2009. This
error, according to the applicant, constitutes proof of the
arbitrator’s failure to apply her mind. The applicant
criticized the award on the basis that the arbitrator committed gross
irregularities by issuing an award with a number of random
and
mutually contradictory observations and by finding that it failed to
discharge the onus of proving the fairness of the third
respondent’s
dismissal.
[9]
It was argued on behalf of the applicant that the arbitrator
unreasonably limited the misconduct to the third respondent’s
use of the word “mlungu” when referring to a customer.
The third respondent denied that the arbitrator’s
interpretation
of the misconduct was unreasonable and submitted that
he was not dismissed for insubordination. It is common cause that the
customer
did not testify. His evidence contained in the letter of
complaint is therefore hearsay evidence. In
Naraindath
v CCMA and Others
[2]
it was held that reliance on hearsay evidence by an arbitrator does
not necessarily constitute a reviewable irregularity. The arbitrator
chose to accept the applicant’s evidence that the incident took
place. She rejected the applicant’s version that the
reason the
third respondent did not off-load the truck on the first attempt was
the unacceptable manner in which he spoke to the
customer which
brought the applicant’s name in disrepute. The arbitrator
accepted the third respondent’s version which
she found
undisputed, that the long rope he requested from the applicant to
off-load was not available. She further accepted that
the third
respondent was prevented by lack of protective clothing from
off-loading.
[10]
A reading of the record reflects that the third respondent’s
evidence in chief was that they had been given the long
rope when
they first attempted to effect the delivery. This version is
consistent with the explanation he gave when asked why the
customer’s
employee was in the truck. He said the applicant did not allow them
to get inside the truck because it would not
be liable for injuries
they could sustain while inside the truck. It was his evidence that
the customer told him that if that was
the way the applicant served
them, he could not do business with the applicant. The arbitrator’s
finding that the long rope
the third respondent required was not
available is not based on the evidence before her. So is the finding
that the customer was
at fault, because he failed to provide a long
rope. These errors constituted gross irregularities
[11]
There were several verbal exchanges between the third respondent and
the customer, which caused the customer to complain other
than being
referred to as “umlungu”. The arbitrator failed to make a
finding whether, during the exchange, the third
respondent spoke to
the customer in a manner which brought the applicant’s name
into disrepute. The omission constituted
gross irregularity as it
limited the enquiry the arbitrator had to conduct to the use of the
word “umlungu”. It excluded
other verbal exchange.
[12]
The arbitrator committed a gross irregularity in finding that the
incident which led to the third respondent’s dismissal
occurred
in December 2008 because it took place in January 2009. The finding
that the customer delayed in reporting the incident
led the
arbitrator to draw the negative inference that the customer did not
take the incident seriously is based on incorrect calculation
of the
period which lapsed from the date of the incident to the date on
which it was reported. It incorrectly extended the period
by about a
month.
[13]
The arbitrator committed a gross irregularity by not considering the
common cause evidence that the third respondent was on
a final
written warning for similar misconduct. The third respondent’s
disciplinary record was material in the determination
of the
appropriateness of the sanction of dismissal.
[14]
A consideration of the evidence as a whole shows that the gross
irregularities committed by the arbitrator led her to reach
the
decision that the third respondent’s dismissal was unfair. The
decision is based on the erroneous finding that the customer
was at
fault by not providing the third respondent with a long rope. It is
further based on the omission to consider the full verbal
exchange
between the third respondent and the customer and the omission to
consider that the third respondent was on a final written
warning for
similar misconduct when he committed the misconduct he was dismissed
for. These gross irregularities led the arbitrator
to reach an award
which falls outside the bounds of reasonableness.
[15]
In the premises the following order is made:
[15.1] The
arbitration award issued by the second respondent under case number
ECPE 1152-09 and dated 25 August 2009 is reviewable
and set aside.
[15.2] The matter
is remitted to the first respondent to be arbitrated
de novo
.
____________________________
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES:
For the
Applicant:
Advocate. M Grobler
Instructed
by:
Werkmanns
For the Third
Respondent:
Mrs E van Staden
Instructed
by:
The Justice Centre
[1]
Act 66 of 1995
[2]
[2000] 6 BLLR 716
(LC) at para 34.