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[2015] ZALCJHB 82
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SATAWU obo Peni v Transnet Bargaining Council and Others (JR2066/12) [2015] ZALCJHB 82 (6 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
2066/12
DATE: 06 MARCH
2015
Not Reportable
In the matter
between:
SATAWU obo GEORGE
PENI
................................................................................................
Applicant
And
TRANSNET
BARGAINING
COUNCIL
...................................................................
First
Respondent
K MULLIGAN
N.O
..................................................................................................
Second
Respondent
TRANSNET FREIGHT
RAIL
..................................................................................
Third
Respondent
Heard: 10 January
2014
Delivered: 6
March 2015
Summary:
Condonation application – slight delay and reasonable
explanation
for
delay – principles for granting of condonation restated.
Review
application – grounds – legal representation not granted
to employee – discretion to be exercised by a
commissioner –
factors to be considered in the exercise in exercising discretion –
not unreasonable to expect employee
to continue with the assistance
of legal representative if employee represented by trade union.
Review
application – grounds – conflicting versions of evidence
– commissioner assessed probabilities as well
as evidentiary
value of the evidence provided by witnesses – decision not so
unreasonable as to justify a review of the award.
JUDGMENT
LANCASTER,
AJ
Introduction
[1]
This
matter came before me as an application to review and set aside an
arbitration award by the second respondent in his capacity
as an
arbitrator of the Transnet Bargaining Council (“the first
respondent”). The application was brought in terms
of Section
145 of the Labour Relations Act
[1]
(“the LRA”).
[2]
As the applicant’s review application was filed out of time the
applicant also applied for condonation for the late filing
of the
review application.
[3]
The applicant was dismissed by the third respondent on 2 February
2012 on allegations of dishonesty and/or fraud arising out
of the
alleged irregular use of the third respondent’s fuel card. The
applicant subsequently referred a dispute regarding
the alleged
unfairness of his dismissal to the Transnet Bargaining Council and
the matter came before the second respondent as
arbitrator on 11
April 2012 and 3 May 2012, respectively.
[4]
The matter was arbitrated and in his award dated 30 May 2012, the
second respondent found the dismissal of the applicant by
the third
respondent to have been procedurally and substantively fair. As a
result he dismissed the applicant’s dispute.
It is this award
by the second respondent that forms the subject matter of the review
application brought by the applicant, which
application was filed on
27 October 2012.
Background
facts
[5]
At the time of his dismissal the applicant was employed by the third
respondent as a service driver at the salary of R5,996.16
per month.
He was employed as such from 1 January 2010 until 2 February 2012.
The primary duties of the applicant were to transport
crew members to
various train stations. It was common cause between the parties that
there were no outstanding issues, disputes
or problems between the
third respondent and the applicant prior to the incident which lead
to the applicant’s dismissal.
[6]
The incidents that resulted in the dismissal of the applicant took
place on 22 May 2012, 12 June 2011, 21 May 2011, 24 May 2011
and 25
May 2011 to October 2011 respectively, and pertained to irregular
fuel refills and excessive fuel consumption by the applicant.
[7]
The incidents were discovered when the third respondent noted the
irregular fuel refills and excessive fuel consumption of its
Ford
Ranger with the registration number BC 70 FS GP. The third respondent
subsequently requested Andy Patha, an employee in the
third
respondent’s fraud risk management division, to investigate the
matter.
[8]
Subsequent to this investigation, the applicant was charged with
contravening the third respondent’s policies and/or procedures
by refueling the aforementioned vehicle with nominal and irregular
amounts. The applicant was further charged with using the third
respondent’s fuel card for personal gain and for entering into
fraudulent arrangements with the staff at Daveyton Total.
[9]
It was alleged that these arrangements included the use of the fuel
card of the third respondent to pay for false fuel transactions
and
that the applicant would then receive the cash value of the
transaction. It was alleged that in exchange for assistance with
these spurious transactions he would then reward the staff members
concerned with cash payments.
[10]
The applicant was on duty on the dates of the questionable
transactions and the attendance registers of the third respondent
showed that the applicant was on duty on the applicable dates and
times.
[11]
A disciplinary hearing for the applicant took place on 24 January
2011. The applicant maintained in the disciplinary hearing
that he
did not commit any of the fraud or dishonesty for which he had been
charged. He was found guilty during the disciplinary
enquiry and
dismissed.
[12]
The second respondent ultimately concluded that the applicant
challenged the procedural fairness of his dismissal solely on
the
ground that the chairperson was biased. He intimated that considering
that no evidence was lead by the applicant on this issue
the dispute
regarding the procedural fairness of the dismissal had either been
abandoned by the applicant or considering that no
evidence was lead
on the issue he could only but find that the dismissal of the
applicant was procedurally fair.
[13]
In respect of the substantive fairness of the dismissal the second
respondent dealt with the charges separately. On the first
charge he
found that the third respondent failed to prove that there was a
policy in place that obliged the applicant to fill the
vehicle’s
fuel tank to capacity and accordingly the applicant could not have
been guilty of this charge.
[14]
In respect of the second charge the second respondent found that the
applicant did in fact use the fuel card for personal gain
on 21, 24
and 25 May 2011 and in doing so made himself guilty of fraudulent and
dishonest conduct. In the premise the second respondent
concluded
that the third respondent had provided overwhelming documentary
evidence to prove that the Ford Ranger was being driven
by the
applicant and further that the applicant was fully aware of the fact
that his conduct had been dishonest.
[15]
This evidence was presented in the form of slips that had been signed
by the applicant, allegedly proving that the applicant
had filled up
the car at the Zenex Northmead filling station and drove it for a
short distance before seemingly filling the vehicle
again at Daveyton
Total station. Further documents in the form of transaction and trip
logs were also provided also provided to
me to consider as part of
the record of review.
[16]
During the arbitration proceedings the evidence presented by the
applicant in this respect was merely a bare denial of the
allegations
and a statement that he did not drive the vehicle in question to the
Total in Daveyton. The evidence before the second
respondent however,
tended to show that this evidence was in fact not truthful.
[17]
As for the third charge the second respondent found that the third
respondent had succeeded in proving the fraudulent arrangements
between the applicant and the staff at Daveyton. Two witnesses
testified in respect of this charge,
to wit
, Mr Langa and Mr
Mkhize who testified on the applicant’s modus operandi in
respect of the arrangements.
[18]
The second respondent ultimately found that the applicant’s
dismissal had been substantively fair on the strength of
the evidence
lead before him.
[19]
It is these findings by the second respondent that gave rise to the
proceedings which came before me.
[20]
I now turn to deal with the merits of the review and condonation
applications.
The
issue of condonation
[21]
As the review application was filed outside of the six week period
provided for in Section 145 of the LRA, the applicant applied
for
condonation for the late filing of his review.
[22]
It would appear that the applicant received the arbitration award on
or about 4 June 2012. The review application was however,
only served
and filed on 27 August 2012. The review application was therefore
filed some 6 weeks out of time.
[23]
The applicant provided the following explanation for the late filing
of his review application:
a.
After receiving the award on 4 June 2012, the union official who
represented the applicant discussed the award with the Gauteng
Provincial Secretary and reached a conclusion that the matter should
be handed to SATAWU Legal department for further consideration.
b.
At some point in time during July the Legal department informed the
applicant’s representatives that the matter was complex
and
approached the applicant’s attorneys of record for an opinion.
This happened on 16 July 2012.
c.
The opinion was finalized and forwarded to the union on 23 July 2012.
d.
The union received approval to continue with the matter on 31
July 2012.
e.
The applicant’s attorneys were instructed on 8 August 2012. A
consultation could however only be scheduled for 16 August
2012 and
the review application was completed for signature on 22 August 2012.
[24]
The principles governing the
requirement for granting or refusal of condonation are well
established in law. In terms of these principles
the court has a
discretion which is to be exercised judiciously after taking into
account all the facts before it.
[25]
The
factors which the court needs to take into consideration in assessing
whether or not to grant condonation are in my view still
those
recorded in
Melane
v Santam Insurance Co Ltd
[2]
.
These principles have been confirmed on many occasions and were
amongst others also dealt with by the Labour Appeal Court in the
matter of
Foster
v Stewart Scott Inc
[3]
.
In
that matter the Labour Appeal Court summarised the factors as
follows:
(a)
the degree of lateness or non-compliance with the prescribed time
frame;
(b)
the explanation for the lateness or the failure to comply with time
frames;
(c)
prospects of success or
bona fide
defence in the main case;
(d)
the importance of the case;
(e)
the respondent’s interest in the finality of the judgment;
(f)
the convenience of
the court; and
g)
avoidance of
unnecessary delay in the administration of justice.
[26]
Considering the explanation by the applicant I am satisfied that the
length of the delay is not exceptionally long and that
the
explanation for the delay is adequate. I have also considered the
remainder of the factors and am of the view that the applicant
has
made out a proper case for condonation and that it was in the
interest of the parties for the merits to be finally decided
on.
Legal
Grounds for Review
[27]
The test for review and the high water mark which the applicant needs
to reach to show that the award of the second respondent
is
reviewable was set out by the Constitutional Court in the matter
between
Sidumo and Another v Rustenburg Platinum Mines Ltd and
Others 2007 28 ILJ 2405 (CC)
.
[28]
In this regard the applicant has to show that the award is one that
“a reasonable decision maker could not come to”
under the
circumstances.
[29]
I
n
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[4]
the
court dealt with the principles underlying a review application as
follows:
‘
In
summary, s 145 requires that the outcome of CCMA arbitration
proceedings (as represented by the commissioner's decision) must
fall
within a band of reasonableness, but this does not preclude this
court from scrutinizing the process in terms of which the
decision
was made. If a commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant,
or the
commissioner commits some other misconduct or a gross irregularity
during the proceedings under review and a party is likely
to be
prejudiced as a consequence, the commissioner's decision is liable to
be set aside regardless of the result of the proceedings
or whether
on the basis of the record of the proceedings, that result is
nonetheless capable of justification’.
[30]
In
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[5]
the
Supreme Court of Appeal restated the principles that applied to
review applications post the judgment by the Constitutional
Court in
Sidumo
and
held that:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in
s
145(2)
(a)
of the LRA. For a defect in the conduct of the proceedings to amount
to a gross irregularity as contemplated by
s
145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. 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’.
[31]
I have accordingly reviewed the facts and grounds of review of
the applicant against the principles as set out by the courts and
as
referred to herein above.
The
Review grounds
[32]
The applicant contended that the arbitrator
committed a gross irregularity in the conduct of the arbitration
proceedings, exceeded
his powers and committed misconduct in relation
to his duties as an arbitrator.
[33]
In this regard, the applicant submitted that in
the first instance the second respondent failed to appreciate the
complexity of
the matter by ruling against legal representation.
[34]
Secondly, it was contended that the second
respondent committed a gross irregularity in his duties by
incorrectly concluding that
corroboration between the fleet
management report and the bank’s transaction records tended to
show that the transactions
in question occurred in respect of the
vehicle in question. This finding, so the argument goes, ignored the
crucial issue of whether
the applicant was the driver of the vehicle
at the time.
[35]
On the whole, the applicant argued that the
second respondent had failed to give consideration to the real issues
placed before
him and that the second respondent ought to have found
that the dismissal was unfair given the fact that the fraudulent
activities
were clearly committed with a Ford Ranger which was not
available solely for the individual applicant’s use but could
be
and was used by other employees as well.
[36]
I will firstly address the issue raised by the applicant regarding
legal representation.
[37]
If one reviews the arbitration award it is evident that both the
parties were allowed to present their respective arguments
regarding
legal representation. The second respondent untimely came to the
conclusion that the applicant’s union representative
was
adequately prepared to continue with the case.
[38]
I agree with the second respondent’s conclusion in this regard,
I am not convinced that the dispute was of such complexity
to warrant
legal representation. The union representative in my view was
sufficiently equipped to represent the applicant during
the course of
the arbitration proceedings and that the comparative abilities of the
parties were evenly balanced in the absence
of legal representation.
[39]
In
this regard, I have also considered the principles as applied in
Commission
for Conciliation, Mediation & Arbitration and Others v Law
Society of the Northern Provinces (Incorporated as the
Law Society of
the Transvaal)
[6]
the
court held that:
‘…
A
request for legal representation may be made at any time and not
necessarily at the outset of the arbitration. The sub-rule indeed
allows the commissioner considerable latitude in allowing legal
representation. It may be allowed where the commissioner and all
the
parties agree. In addition, the commissioner may allow it in
exercising his or her discretion when he or she considers that
it is
'unreasonable to expect a party to deal with the dispute without
legal representation' after consideration of the listed
factors. The
listed factors are: the nature of the questions of law raised by the
dispute; the complexity of the dispute; the public
interest; and the
comparative ability of the opposing parties or their representatives
to deal with the dispute. The sub rule does
not disallow other forms
of representation. Nor does it exclude the consideration of other
relevant considerations. These factors
may well, in a given case,
include the seriousness of the individual consequences of a
dismissal, assuming that this is not already
encompassed by the
sub-rule, which I doubt. The commissioner must, if satisfied that it
is appropriate to do so, also determine
a dispute about legal
representation if one of the parties objects or if he or she suspects
that the representative does not qualify
in terms of the rule…’.
[40]
Having considered the circumstances, I do not believe that the
finding by the second respondent can be faulted or can be said
to
have been so unreasonable as to have denied the applicant a fair
hearing on the merits of the matter. It would appear that the
fact
that the applicant was represented by a union representative as
opposed to a legal representative did not prejudice the applicant
nor
does it render the second respondent’s arbitration award
reviewable in my view.
[41]
The applicant further contended that the evidence that was provided
during the arbitration does not unequivocally show that
the applicant
was guilty of the charges that he was found guilty of.
[42]
If one in this regard considers the evidence which was presented
during the arbitration proceedings as a whole, which included
the
combi trip sheets, various fuel reports, bank statements, petrol
slips, tracker reports and Google maps print outs, I cannot
agree
with the applicant’s contention in this regard.
[43]
It is evident from the Combi trip sheet for 24
of
May 2011 and 25 of May 2011 that the applicant was
intermittently driving the vehicle with registration number BC 70 FS
GP on those days. Although the applicant seemed to try and deny the
veracity of the trip sheets, the fact that he himself included
the
same documents in his bundle and relied thereon in terms of his
evidence, undermines his claims regarding the veracity of the
document. The applicant chose to include the documents in his
evidence and accordingly could not later deny the content of those
same documents.
[44]
In any event it would seem that the major part of the applicant’s
evidence was but a bare denial of the third respondent’s
allegations and did not in my view constitute true disputes of fact.
[45]
Ultimately, the applicant could not and did not provide any relevant
evidence that could refute the Fuel Transaction report,
Bank Report
and tracker report provided by the third respondent. I agree with the
third respondent’s argument that in essence,
the applicant’s
evidence and case amounted to a bare denial and failed to provide an
adequate defense to the charges and/or
allegations against him.
[46]
It should also be taken into consideration that although the
applicant denied signing various petrol slips during the arbitration
proceedings, crucial evidence was provided during the arbitration
proceedings indicating that the applicant had indeed signed the
petrol slips and that the signature that appeared on the documents
was his signature. This taken in conjunction with the evidence
of
Langa and Mkhize whom were employees of Daveyton Total garage, tended
to show that the probabilities favoured the version of
the third
respondent.
[47]
I am of the view that the evidence of these employees was crucial and
I agree with the conclusions reached by the second respondent
in this
regard. This evidence also tended to show that the applicant’s
allegations that he was not driving the vehicle on
the days in
question, was improbable. The applicant merely denied that he had
signed the slips that he was alleged to have signed
and failed to
provide any further evidence in this regard and/or adequately dispute
the third respondent’s evidence in this
regard.
[48]
The applicant argued that during the disciplinary hearing and the
arbitration proceedings, the third respondent failed to produce
a tag
that identified the applicant as the driver of the Ford Ranger on 24
May 2011 and 25 May 2011. The second respondent clearly
did not agree
with the applicant’s contention in this regard and he was
seemingly satisfied that the third respondent’s
witnesses
adequately explained the difficulties of the tags and further
explained in detail that the tags to start the vehicles
were
initially issued for identification purposes and registered to an
individual employee, but they were not properly controlled.
[49]
In respect of the evidence of Langa and Mkhize, the applicant
attempted to allege that there were “loopholes” and
contradictions in their testimonies that the second respondent should
have taken into regard when reaching his conclusions. Apart
from the
fact that the alleged loopholes and contradictions were not shown by
the applicant, the second respondent seemingly correctly
assessed
this evidence in relation to these witnesses and also considered the
alleged inconsistencies.
[50]
Be
that as it may, the second respondent finds in this regard that it
would make no sense for the witnesses to implicate themselves
in
criminal activities just to fabricate a version to benefit the third
respondent, from which they could derive no benefit. In
this regard,
one should consider what the court found in
SA
Revenue Services v Commission for Conciliation, Mediation &
Arbitration and Others
[7]
.
‘
Most
telling when regard is had to the probabilities, is the evidence of
Boltmann himself. He is the person who paid the bribe.
He had nothing
to gain from giving evidence other than to implicate himself in the
serious crime of corruption. Not only did he
do so, but he travelled
at great cost, both in terms of time and money, firstly to Beit
Bridge in order to give evidence at the
disciplinary enquiry, and
secondly to Makhado, previously called Louis Trichardt, to give
evidence at the arbitration. As Boltmann
himself says in his
evidence, and his frustration is palpable, and I quote from this
evidence under cross-examination (this is
when it was suggested to
him under cross-examination that he was fabricating his version):
'You know that is
way below my intelligence here man. You know to think that I could
fabricate a story like this. You know come
out of the blue. I mean to
come and sit here in Louis Trichardt, to come and make up a story
that we fabricated somewhere, you
know I feel that you are insulting
my intelligence here man. You know for what reason do you think would
I fabricate a story like
this. You know, at my own expense. I do not
get no benefit from coming here, not at all.'
That exasperated
statement has the ring of truth to it. Throughout his evidence Mr
Boltmann, without this court having seen his
demeanour but from a
reading of the transcript, created the evidence of a credible
witness, a person who had done wrong but was
now doing the right
thing’.
[51]
I am therefore of the view that the second respondent correctly
considered the evidence provided by Langa and Mkhize.
[52]
Having had sight of all of the documents and evidence placed before
the second respondent and considered by him and the transcript
of the
arbitration proceedings, the conclusion that the second respondent
came to in respect of the evidence is in my view the
only reasonable
inference that could have been drawn from the evidence and at the
very least does not fall foul of the threshold
set in
Sidumo.
Conclusion
[53]
Accordingly, I am of the view that the
second respondent’s award does not contain irregularities
sufficient to justify the
setting aside of his award and is not so
unreasonable that another decision maker could not come to the same
findings.
Order
In
the premises, I make the following order:
1.
The applicant’s review application is dismissed.
2.
There is no order as to costs.
Lancaster
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv J S Mphahlani
Instructed
by: Baloyi Attorneys
For
the Respondent: Adv X D Matyolo
Instructed
by: Mkhabela Huntley Adekeye Inc
[1]
No 66 of 1995 (as amended).
[2]
1962
(4) SA 531
(A
[3]
(1997)
18
ILJ
367 (LAC)
[4]
(
2010)
31
ILJ
452 (LC
)
at
para 17
.
[5]
(2013) 34 ILJ 2795 (SCA) at para 25.
[6]
(2013) 34
ILJ
2779 (SCA) at para 21.
[7]
(2014) 35
ILJ
249
(LC) p 253 E-I