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[2015] ZALCJHB 76
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Simelane v Commission for Conciliation Mediation And Arbitration and Others (JR1760/10) [2015] ZALCJHB 76 (5 March 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR1760/10
DATE: 05 MARCH 2015
Not Reportable
In the matter between:
VELAPHI
SIMELANE
............................................................................................................
Applicant
And
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
........................................................................
First
Respondents
THULANI AKIN
N.O
..............................................................................................
Second
Respondent
NAMPAK
RECYCLING
...........................................................................................
Third
Respondent
Heard: 11 February 2014
Delivered: 05 March 2015
Summary: Review application
.
Decision of Commissioner reasonable – review application
dismissed.
JUDGMENT
MOLAHLEHI, J
Introduction
[1] This is an application to review
and set aside the arbitration award made by second respondent (the
Commissioner) under case
number GAJB 377277-09 dated 14 June 2010 in
terms of which the dismissal of the applicant was upheld.
Background Facts
[2] The third respondent is involved in
the business of collecting recyclable paper from a number of
retailers which it turns into
bails and thereafter sells them to its
own paper mills. The other company whose name appears in these
proceedings is Smiley Enterprise
CC, a competitor to the third
respondent in that it is also involved in the business of recycling
of paper.
[3] The applicant who was prior to his
dismissal employed as a supervisor. He was charged and dismissed for
unauthorised removal
of company goods and or involvement in the theft
of the waste paper from the third respondent’s Amalgam premises
on 04 April
2009.
[4] The applicant was aggrieved by the
sanction and it was for that reason that he referred an alleged
unfair dismissal dispute
to the CCMA. In the referral, the applicant
contended that the dismissal was both substantively and procedurally
unfair. The dispute
was finally arbitrated by the Commissioner who
found that the dismissal was both substantively and procedurally
fair.
[5] The employee was again unhappy
about the outcome of the arbitration award and, accordingly, filed
the present proceedings in
which he challenges the reasonableness of
the outcome of the arbitration proceedings.
The case of the third respondent
[6] The case of the third respondent
during the arbitration hearing was that the dismissal of the
applicant was for a fair reason
and in support thereof presented its
version through a number of witnesses. The testimony of the witnesses
is dealt with by the
Commissioner in his arbitration award and the
other aspects thereof, which were taken into account in consideration
of this review,
appear in the transcript of the arbitration
proceedings. I do intend dealing with the testimony of each witness
as appears in the
record but only those of the key witnesses.
[7] The first witness of the third
respondent was Mr Mandy, the operational manager, who testified that
on 4 April 2009, he received
a call from the risk manager who
informed him that they had caught the respondent’s truck at
Smiley Enterprise at Fordsburg
in Johannesburg with piles of paper
belonging to the third respondent. He then proceeded to Smiley
Enterprise where he found the
truck parked in the weighbridge. In the
truck there was seven bails of High Litter (HL) waste paper. The
title HL signifies that
the paper was of high value.
[8] On arrival at Smiley Enterprise, Mr
Mandy inquired from the driver, Mr Nogaga as to what he was doing
there. He informed him
that he had been instructed by the applicant
to deliver the papers at Smiley Enterprise. He also testified that
the driver did
not have the delivery note, which is a requirement
whenever delivery is undertaken.
[9] The other thing which Mr Mendy did
at Smiley Enterprise was to take the pictures of the scene which
included those of the truck
and the applicant. He also testified
about the rule that prohibits employees from leaving the workplace
without permission from
their managers, which the employee was aware
of. It is common cause that the applicant did not inform his managers
when he left
for Smiley Enterprise.
[10] Mr. Mpanza, the operations control
manager testified that because he was not present on the day in
question, he had asked the
applicant to take charge of his
responsibilities. He further testified that he was phoned on the day
in question by the risk manager
who informed him about the incident
in question.
[11] The other witness of the third
respondent was Mr Adendorf, the national risk manager, who testified
that he, on the day in
question he, received a telephone call
informing him about the truck of the third respondent being at Smiley
Enterprise. He enquired
from driver as to what he was doing there.
The driver informed him that he was instructed by the applicant to
deliver the paper
there.
[12] Mr Mlalazi, the area manager of
Maxi security, testified that on the day in question, he was outside
Smiley Enterprise when
he saw the truck of the third respondent
entering the premises of Smiley Enterprise. He approached the driver
and enquired from
him as to what he was doing there. He informed him
that he was there to deliver what was in the truck.
The employee’s case
[13] The applicant testified that, on
the day in question, he was requested by his immediate manager to
attend a meeting on his
behalf as he would have arrive late at work
on that day. The manager also requested him to process the incomplete
collections from
the previous day. He instructed him to also attend
to the drivers including the horse and trailer that would be coming
to load.
[14] As concerning the incident in
question, the applicant testified that he received a phone call from
the driver who requested
him to come to Mayfair. He enquired from the
driver as to what was he doing at Mayfair when he had instructed him
to collect paper
at President Hyper in Krugersdorp. Before he could
answer the question, his cell phone ran out of power. He then
proceeded on foot
to Mayfair. He initially went to the wrong place
but after phoning the driver from a public phone he located the place
where he
had parked the truck.
[15] During cross examination, the
employee testified that the driver called him and told him to come to
Mayfair without specifying
the place where he was. He further stated
that he did not enquire about the specific place because Mayfair is a
small place.
[16] In the written statement, the
employee had stated that the driver had told him to come to
Fordsburg. When pressed to explain
this contradiction, he then evaded
the question and referred to some minutes of a meeting in Bryanston.
He later said that Mayfair
and Fordsburg are one and the same place.
[17] The employee further conceded that
being the responsible clerk at the weighbridge on the day in
question, he was responsible
for the incoming and outgoing trucks. In
relation to what happened to the truck when it left the third
respondent’s premises,
he testified that he did not know
because he was in a meeting.
Grounds of Review
[18] The applicant in challenging the
arbitration award of the Commissioner has raised several grounds of
review which can be summarised
as entailing the allegations of gross
irregularity on the part of the Commissioner and that the decision
reached was unreasonable.
The key point upon which the allegation of
unreasonableness is based on is that the findings made by the
Commissioner are not justifiable
in relation to the evidence which
was properly presented before him. In relation to the allegation of
gross irregularity, the main
contention of the applicant is that the
Commissioner failed to properly apply his mind and failed to have
proper consideration
of the facts and the law. This includes the
allegation that the Commissioner took into account inadmissible
evidence in reaching
his conclusion.
The arbitration award
[19] In considering the procedural
fairness of the dismissal, the Commissioner rejected the version of
the employee that he was
not afforded an opportunity to cross examine
the witnesses of the third respondent. It was for this reason that he
found that the
chairperson of the disciplinary hearing was not
biased.
[20] As concerning the substantive
fairness of the dismissal, the Commissioner found that the
probabilities favoured the version
of the third respondent that the
employee had given the driver instructions to deliver the recycle
papers to Smiley Enterprise.
It was for these reasons that he found
the dismissal of the employee to have been fair and accordingly
dismissed his claim.
Evaluation
[21] In considering this application,
the test to apply is that which is set out in Sidumo and Another v
Rustenburg Platinum Mines
Ltd and Others, in the following terms:
‘[T]he better approach is that
Section 145 [of the LRA] is now suffused by the constitutional
standard of reasonableness…
Is the decision reached by the
commissioner one that a reasonable decision maker could not reach?’
[22] In applying the above test to the
present case, I am of the view that having regard to the material
which served before the
Commissioner there is no doubt that his
decision was not so unreasonable that it could not have been reached
by a reasonable decision
maker. Put in another way, I find that there
is rational connection between the evidential materials properly made
available to
the Commissioner and the decision that the dismissal of
the employee was fair.
[23] It is apparent from the reading of
the arbitration award that the Commissioner, took into account the
totality of the facts
and the circumstances of the case in arriving
at the conclusion as he did. The complaint of the applicant that the
driver of the
truck was not called to testify does not assist his
case because, as the Commissioner pointed out, there is overwhelming
probabilities
that the driver was sent to Smiley Enterprise by the
applicant.
[24] In my view, the complaint of the
applicant that he was denied the opportunity to cross examine the
driver does not assist his
case because that does not have any
bearing on the second part of the charge which was proffered against
him. In addition to the
charge of theft of the waste paper of the
third respondent, the applicant was also charged with the involvement
in the theft of
the third respondent’s property. In this
respect, the applicant has failed to provide plausible explanation
for the following
undisputed facts:
a) Why did the driver call and request
him to come to the premises of Smiley Enterprise.
b) Why did he leave the premises of the
third respondent and walk three kilometers without informing his
superior, especially, knowing
that that is what he was supposed to
do.
[25] In light of the above, I am of the
view that the applicant has failed to make a case for reviewing the
arbitration award of
the Commissioner. I do not, however, believe
that it would be fair to award costs against the applicant.
Order
[26] In the premises, the applicant’s
application to have the arbitration award made under case number GAJB
377277-09 dated
14 June 2010, reviewed and set aside is dismissed
with no order as to costs.
Molahlehi, J
Judge of the Labour Court of South
Africa
Appearances:
For the Applicant: L Makhuni
For the Third Respondent: Advocate
MJ Van As
Instructed by: Cliffe Dekker
Hofmeyer Inc.