About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 14
|
|
Dube v South African Road Passenger Bargaining Council and Others (JR 1661/11) [2015] ZALCJHB 14 (27 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR 1661/11
DATE:
27 JANUARY 2015
Not
Reportable
In
the matter between:
Ntsimbini
July
Dube
..........................................................................
First
Applicant
And
South
African Road Passenger Bargaining Council
..................
First
Respondent
Kerry
Driscoll
(N.O.)
................................................................
Second
Respondent
Gauteng
Coaches (Pty)
Ltd
.......................................................
Third
Respondent
Heard:
20 June 2014
Delivered:
27 January 2015
Summary:
(Review - dismissal).
Judgment
LAGRANGE,
J
Introduction
[1]
This is an opposed review. At the hearing
the applicant appeared in person. The only record of the arbitration
proceedings are the
transcribed notes of the arbitrator which were
only filed in January 2013 despite being available in September 2011.
The applicant
claimed that he had attempted to obtain the digital
record of the arbitration proceedings from the bargaining Council but
the council
staff he dealt with had refused to provide him with it.
His explanation is puzzling to say the least, as it appears in terms
of
the record lodged by the first respondent with the registrar of
the Court that a recording of the hearing on a compact disc did
form
part of that record. The only record provided of the oral evidence
was the transcribed notes of the Commissioner, which the
third
respondent filed.
[2]
In this regard, the employer had also
requested that the application be dismissed in view of the
applicant’s tardiness in
finalising an adequate record. While
the matter might well have been dealt with on this basis, I believe
it would be more satisfactory
to address the substantive merits of
the application, such as they are.
[3]
The applicant, Mr J Dube was dismissed
following a hearing on 10 March 2011 which he failed to attend. He
was charged with failing
to issue a ticket to a passenger on 21
February 2011 and for arriving late for his shift on 4 March 2011
causing disruption in
the service.
The
arbitration award
[4]
After hearing evidence from both parties,
the arbitrator concluded that the applicant’s dismissal had
been both substantively
and procedurally fair.
[5]
In relation to the issue of substantive
fairness, the arbitrator’s reasoning may be summarised as
follows:
5.1
She rejected the applicant’s claim
that he was effectively being charged with theft and that the
employer had failed to prove
he had stolen any money. The charge was
clearly simply one of failing to issue a ticket, which meant nothing
more less than a failure
by the driver to ensure that a passenger had
a valid ticket. Consequently it is not necessary for the employer to
show that he
had actually taken money from a passenger without
issuing a ticket. The arbitrator found the applicant’s version
of what
happened changed from saying that the passenger in question
had refused to pay to saying that the incident he was talking about
happened in the afternoon of the same day and not in the morning as
claimed by the bus inspector, Mr Banda, who testified for the
company. It was common cause that the procedure in the event of a
passenger refusing to pay was that the driver should stop the
bus,
but the applicant explained that he had not done so because he had
reported the incident to a commuter representative on the
bus. The
arbitrator found it difficult to accept that if this was the case why
that person did not come forward when the inspectors
boarded the bus
and accused him of carrying a passenger who did not have a ticket. On
the other hand, she found the evidence of
Banda both consistent and
reliable.
5.2
In relation to the second charge, the
arbitrator found that the applicant had not challenged the evidence
of Mr Mokoena that he
had been late for the shifts in question. The
disruption caused by his lateness was compounded when he drove past
waiting passengers
and would have left them stranded had Mokoena not
taken steps to make him return to collect them.
[6]
The applicant did not attend the
disciplinary enquiry held on 10 March 2011 which led to his dismissal
even though it had been postponed
from the 8 March 2011. He was first
notified of the charges on 5 March 2011. The arbitrator found that
the applicant had given
no reason for failing to attend the
arbitration hearing. The chairperson of the enquiry, Mr Botes
testified that he had been present
when the first notice was handed
to the applicant, who refused to sign it and said he would not attend
the hearing. The applicant’s
explanation for not signing the
notice was that he had not been issued with a report slip concerning
the charges. The arbitrator
felt that there was no requirement in the
disciplinary code to provide such a document, but in any event if
this was an issue the
applicant should have raised it at the hearing.
Botes also testified that the hearing had been postponed to give him
another opportunity
to state his case and that he had asked other
employees to try and persuade him to make use of the opportunity. The
applicant argued
that he ought to have been given seven days’
notice of the enquiry, but the disciplinary code only required
reasonable notice
to be given. The arbitrator concluded that the
applicant had decided he would not attend any disciplinary hearing
despite being
given two opportunities to do so. She was not convinced
the employer had acted unreasonably in the circumstances or that the
procedure
followed was unfair.
Grounds
of review
[7]
In his founding affidavit, which he
attested to before his attorney who had initially represent him at
the arbitration, the applicant
sets out six grounds as the basis of
his review application. He did not supplement these grounds in any
way in his supplementary
affidavit. Four of these, merely repeat
standard grounds of review without any reference to the facts of the
matter, the award
or the evidence. A fifth ground of review concerns
the alleged misconduct by the arbitrator in the conduct of the
proceedings by
allowing the employer to be represented by an attorney
contrary to an agreement that neither party would have legal
representatives
present. The applicant claims as a result of this he
was at a disadvantage in dealing with the matter. A sixth ground of
review,
which in truth was really a ground of appeal, was simply that
the employer had failed to provide any evidence that he was guilty
of
misconduct. I have treated this as a ground of review on the basis
that the applicant is saying that there was no evidence before
the
arbitrator on which she could have rationally based her findings.
[8]
The other four grounds of review in the
applicant’s founding papers, which were not substantiated with
concrete factual allegations
were that: the arbitrator failed to
apply her mind; committed misconduct in relation to her duties;
committed a gross irregularity
in the conduct of the proceedings and,
or alternatively, exceeded her powers.
Evaluation
[9]
As already mentioned above, the applicant
set out his grounds of review in the broadest terms and, strictly
speaking, he ought not
to have been permitted to expand on those
grounds at the hearing of the review application. Nonetheless, as the
respondent’s
representative was generous enough not to take
issue with the completely and adequate founding papers, the applicant
was given
an extensive opportunity to ventilate his criticisms.
However it must be said that it was necessary to remind him that the
Court
was confined to the record of the evidence that was before the
arbitrator and that the review hearing was neither an appeal nor
an
opportunity to present fresh evidence.
[10]
In relation to the finding on the first
charge, the applicant essentially repeated his evidence which was
reflected in the arbitrator’s
notes of the hearing. The essence
of this is that he ought never to have been found guilty of failing
to issue a ticket because
in fact when the inspectors brought the
passenger to him she paid for a ticket and he issued it. According to
him, he should have
been charged with failing to make the passenger
pay the fare: by saying that he failed to issue a ticket it suggested
that he had
taken the passenger’s money and pocketed it. It
appears from the arbitrator’s notice that when the applicant
was cross-examined
on how it came to the knowledge of the inspectors
who boarded the bus that a passenger did not have a ticket he said
that he had
reported the non-payment to them, but did agree that they
had brought the passenger to him and she had paid for a ticket. In
his
evidence in chief, he had said that he did not stop the bus as he
was supposed to if a passenger did not pay the fare because there
were people at the front of the bus that he could report to. Under
further questioning, the applicant indicated that the person
he was
referring to was a commuter representative, who would report such
things to the management. On his own version, there was
nothing to
suggest that he had asked for this person’s support when the
inspectors boarded the bus.
[11]
In his evidence in chief, the applicant
said that it was a female passenger who did not have any more funds
on her tag and he had
told her he would fill in her tag when they got
to Ennerdale, but she must pay for the journey from the point she
embarked until
Ennerdale, which is what she refused to do. Under
cross-examination when it was pointed out to him that the slip filled
out by
the inspector had been issued after the inspectors had boarded
the bus at Ennerdale at 05h38, he then dramatically changed his
version to say that the incident had taken place in the afternoon. Up
to that point in his evidence, it appeared common cause that
he was
also talking about the same incident having taken place in the
morning.
[12]
Based on what was before her, on the
available record, I cannot say the arbitrator’s conclusions in
relation to this charge
were ones that no reasonable arbitrator could
have arrived at.
[13]
In relation to the charge that he was late
for work and disrupted the shifts, the applicant made no specific
reference to this charge
in his founding affidavit, other than to
baldly assert that there was no evidence of any misconduct. In the
review hearing he affirmed
that he had not been late as he had
arrived at 16h00 in time to take Mokoena’s shift, in exchange
for Mokoena covering for
his earlier shift at 15H00. He had even
mentioned this to the Despatcher who had accepted that he was not
late, an issue he did
not mention in the arbitration hearing.
Effectively, the evidence of Mokoena was that the applicant should
have phoned by at 14H30
to say he would be late for the 16H00 shift,
but he only phoned at 15H30. Mokoena had to arrange another driver to
cover that shift.
However by 16H15 the applicant had still not shown
up and Mokoena decided to take a bus to cover the 17h00 shift. The
applicant
then arrived and took the bus, but Mokoena had to arrange
another driver to cover that shift and put Mokoena on the 18h00 shift
which entailed fetching passengers from Fourways to take them to
Springs/Sebokeng. When he arrived at the pick-up point in
Fourways, he ignored the waiting passengers and had to be called
back. Mokoena testified about the seriousness of shifts
running
late and the disruptive consequences such as having to arrange other
drivers. Botes had pointed out that if a shift was
late the company
could lose its subsidy for that shift.
[14]
Neither in the arbitration, nor at the
hearing did the applicant contest these events or the disruptive
consequences of his lateness,
except he claimed he had arrived at
16h00. In the circumstances, I do not think the applicant was able to
show that the arbitrator
could not have reached the conclusion that
he was guilty of this charge.
[15]
On the issue of the disciplinary
proceedings allegedly proceeding improperly in absentia, the
applicant contended that the employer
should have produced the slips
showing he had been given notice of the hearing, though he agreed
this was not something he had
demanded at the arbitration hearing.
The applicant did not really point to evidence that might have
explained why the employer
would have delayed the enquiry until 10
March 2011 instead of proceeding on 8 March 2011. The postponement
was inconsistent with
the applicant’s version that it wanted to
rush the hearing without giving him a chance to prepare. I cannot
really fault
the arbitrator’s finding that he had enough
opportunity to state his case and that the charges were not so
complicated that
more time to prepare was necessary.
[16]
The applicant maintained that the
arbitrator had insisted on proceeding with the case even though he
wanted someone to represent
him and the arbitrator refused to
postpone the hearing. The unsigned pre-arbitration minute records
that the parties had agreed
each party could be legally represented.
In the employer’s answering affidavit, it agreed with
applicant’s claim that
the parties had agreed that legal
representative would not be present at the arbitration hearing as he
would not be represented
by his attorney, who had been present at the
pre-arbitration meeting. The employer further claimed in the
answering affidavit
that, in keeping with this agreement, it was
represented by its regional manager, Mr K Myburgh, who was not a
lawyer. The applicant
did not file a replying affidavit to contest Mr
Myburgh’s role despite his original averment that the firm was
represented
by an attorney in the proceedings. During his submissions
in reply, the applicant eventually conceded that there was no merit
in
this ground of review.
Conclusion
[17]
The applicant has failed to show that the
grounds of review he raised, including those which were not properly
substantiated in
his founding papers or which were cast in the form
of an appeal, are ones that demonstrate misconduct on the part of the
commissioner,
or that her findings are ones she could not have
reasonably reached on the evidence before her.
[18]
Accordingly, the review application stands
to be dismissed.
[19]
I appreciate that the employer has done
more than it was required to do in providing some form of record of
the evidence of the
proceedings, and that it may, with some
justification feel that it should be awarded costs for having to
defend a claim with so
little merit. However, I believe the applicant
may genuinely, if mistakenly, believed that the first charge against
him was tantamount
to theft and wanted to rectify that. Consequently,
I am disinclined to award costs against him in this instance.
Order
[20]
The application is dismissed.
[21]
No order is made as to costs.
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: In person
For
the First Respondent: N Koulountis of Koulountis Inc.