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[2015] ZALCJHB 125
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Ambro Sales v Metal Engineering Industries Bargaining Council and Others (JR 1621/09) [2015] ZALCJHB 125 (15 April 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa,
in
Johannesburg
Case
no: JR 1621/09
DATE:
15 APRIL 2015
Not
Reportable
In
the matter between:
AMBRO
SALES
........................................................................................................................
Applicant
And
METAL
ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
..........................................................................................
First
Respondent
SIPHO
DLAMINI
N.O
.............................................................................................
Second
Respondent
NATIONAL
UNION OF METALWORKERS OF SOUTH AFRICA
obo
MOSES
GAMA
....................................................................................................
Third
Respondent
Heard:
08 May 2014
Delivered:
15 April 2015
Summary:
(Review – Unfair dismissal – arbitrator could only have
arrived at conclusion by failing to evaluate credibility
of
employee’s defence)
Judgment
LAGRANGE,
J
Introduction
[1]
On 25 June 2009 the applicant applied to
set aside and review the second respondent’s award handed down
on 1 May 2009. In
terms of that award, the applicant was ordered to
reinstate the third respondent, Mr M Gama (‘Gama’),
within 14 days
of the date of the award, without backpay, but with a
written warning valid for 12 months. Had the applicant complied with
the
award, Gama would have been reinstated by mid May 2009.
[2]
In early June 2010, nearly a year later,
the applicant filed its supplementary affidavit, and it was only
about twenty months later,
on 29 February 2012, that the respondents
filed their answering affidavit accompanied by a condonation
application for their delay.
The applicant opposed the condonation
application. The applicant itself was two months late in filing a
replying affidavit on late
June 2012, for which it also sought
condonation.
The
condonation applications
[3]
Although the respondents filed a notice of
intention to oppose the review after receiving the founding
affidavit, they only filed
their answering affidavit some two and a
half years after they received the applicant’s supplementary
affidavit in June 2009.
The main reasons given for the delay
relate to major alterations at the union head office between December
2010 and March 2011.
The workings of the legal department were
extremely disrupted and the responsible legal officer lost the file
when moving from
his old office to his new one causing him to neglect
the case. He was eventually dismissed. It became apparent from
complaints
from members that files were missing and after an
intensive search for them, some of them were recovered. The file in
this matter
was allocated to a new legal officer only in February
2012. What is immediately apparent about the explanation is that it
fails
to deal with the period from June 2009 to December 2010 and is
very sketchy about exactly when the file in this matter came to light
during the course of nearly a whole year from the end of March 2011
until February 2012. There is really is no explanation for
the first
extensive period of the delay, nor is there any indication that the
third respondent did anything to goad his union to
pursue the matter
without unnecessary delay If they were not the respondents in the
matter and were it not for the fact that the
original arbitration
award was in the third respondent’s favour, I would be
disinclined to have allowed the matter to proceed
on an unopposed
basis. I am also mindful of the fact that there was some initial
attempt made to note the third and fourth respondent’s
opposition and to file an application making the arbitration award an
order of court. In these circumstances, it is with grave
reservations
that I have condoned the late filing of their answering affidavit.
[4]
The applicant’s explanation for its
own significant, but much less serious delay in filing its replying
affidavit was that,
from early March when the replying affidavit was
due, the parties had been trying to settle the matter and the company
assumed
its erstwhile lawyers were attending to the pleadings. In
April 2012, the applicant withdrew the mandate it had given to its
former
attorneys, but was only able to obtain the file of the
pleadings from them on 19 June 2012. Within a week of receiving it,
the
replying affidavit was filed. Having regard to this explanation
and on the merits of the application which is considered below,
I
believe the late filing of the replying affidavit should be condoned.
Background
to the dismissal
[5]
In summary, the factual background to
Gama’s dismissal was that on 10 October 2008 he left the
premises of a client shortly
after 14h00 but only arrived back at the
employer's premises shortly after 16h00 after stopping to do some
banking at a shopping
centre which took him over an hour, the rest of
the time apparently being consumed with travelling back to the depot.
According
to Gama he had needed to draw money but his attempts to
draw money in the morning at an ATM had been unsuccessful
necessitating
a visit to a bank branch. As a result of this detour,
he failed to fulfil three other deliveries to other customers, which
were
all marked urgent because they should have been delivered the
previous day. The employer contended that Gama had misled it by not
advising that the truck had been parked at a shopping mall whilst he
attended to his banking problems for over an hour between
14h53 and
16h05. In terms of his clocking record he would have been entitled to
overtime pay for any time worked after 14h00. The
employer contended
that if it had not picked up the fact that Gama had been conducting
his private business it would have paid
him overtime pay for that
period.
[6]
Four charges were preferred against Gama
arising from these events, which may be summarised as follows:
6.1
Gross dishonesty for claiming overtime
payment, which he would have only been entitled to receive from 14h00
until 14h30, whereas
his claim based on the time that he clocked in
at 16h47 was that much greater.
6.2
Failure to comply with his duties and
responsibilities by conducting his own private business when there
were still outstanding
customer deliveries and given that he knew he
had to return to the employer's premises as soon as possible so his
vehicle could
be loaded for the next deliveries.
6.3
Conduct detrimentally affecting the
employer employee relationship in that he conducted his personal
business on company time to
the detriment of customers and that his
contact resulted in himself and other staff members being paid
overtime because they were
waiting for his truck to return to be
loaded.
6.4
Causing intentional damage to the employer
in that his failure to make the urgent deliveries would damage
customer relations.
[7]
In the course of evidence of Ms Anderson, a
director of the company, she explained that she received information
the following week
that other employees had been trying to get hold
of Gama on Friday afternoon but his phone was switched off. When she
was calculating
the overtime payments the following Thursday she
noticed a discrepancy between the time she had completed his last
delivery at
14h12 and the time he clocked out just before 17h00. The
procedure was that a driver would clock out at the end of his work
that
day, which might include time spent at the depot while his
vehicle was being loaded. In the absence of Gama advising her that
she
had not been performing his duties between 14h12 and the time he
clocked out, she was entitled to assume that he had been on duty
and
would have paid him overtime for the whole period. In this instance,
it was only because of her investigations that it came
to light that
he had not been working during most of that time .
[8]
Anderson also testified that it was a
well-established rule that if an employee did not take their half
hour lunchtime at 12h00,
they needed permission to take it at a
different time. The existence of the rule and Gama’s knowledge
of it was not contested
with Anderson, but it was suggested it was
not practical to implement.
[9]
The employer also provided evidence of
previous warnings issued to Gama for delaying his return to the
depot. Even though these
had expired, Anderson felt it was necessary
to mention them because when she had issued the charges to Gama he
had immediately
suggested that they had no proof that he knew of the
rule. Consequently the warnings were raised as evidence of his prior
knowledge
of the practice. The chairperson of the enquiry, Mr
Sharawakanda, testified that he had taken the previous warnings into
account
because Gama ought to have known that, what he had done was
misconduct which the company took seriously. He was at pains to
explain
that he had not taken the warnings into account for any other
purpose, but some of his evidence does suggest that he had also
concluded
that Gama was unlikely to change his behaviour because the
previous warnings established a pattern of similar behaviour.
[10]
When evidence was provided of the attempts
by two other employees to phone Gama at 16h03 and 16h52 respectively,
it was put to Anderson
that ‘Patrick’ had indeed phoned
Gama at 16H03 and Gama had advised him that he was at the bank.
Anderson was surprised
to hear this version because at his
disciplinary enquiry Gama had said he had tried to contact the
company but had no airtime.
He had made no mention of receiving any
phone call from Patrick. It was also not put to either of the company
witnesses that Gama
did not see the necessity of explaining what he
was doing that Friday afternoon because he had explained everything
to Patrick
on the phone, and it was only during his evidence in chief
that this defence was offered for the first time. During
cross-examination
of Anderson, all that was put to her was that Gama
had told Patrick that he was at the bank, when Patrick allegedly
spoke to him.
[11]
It is also noteworthy that when he received
the notice of the disciplinary enquiry he did assert his right to
attend to his banking
business, but did not query why he was being
charged if he had supposedly cleared his actions with Patrick. At the
arbitration,
Gama offered no explanation why he had not raised his
alleged conversation with Patrick during the disciplinary enquiry in
order
to dispel the apparent contradiction between his earlier and
later version, when Anderson expressed surprise at hearing it.
[12]
In his evidence in chief Gama then also
argued that he had used his combined teatime and lunchtime to attend
to business at the
bank and disputed that he had ever made use of
company time that afternoon, though he neither disputed the existence
of the rule
that he was supposed to obtain permission to take his
lunch break at a different time, nor did he explain why he believed
he was
entitled to be paid for the remainder of the time between
14h12 and 16h57, which exceeded any combined tea break and lunch hour
by almost one and a half hours. Gama did claim that because of road
works, it took excessively long to travel back to the depot,
but this
contention was not put to either of the company’s witnesses.
[13]
Anderson had testified that what Gama ought
to have done was to have returned with the vehicle after his last
delivery and then
asked permission to attend to his personal
business. He could have dealt with the bank which had a branch a few
blocks away from
the depot. Obviously, his vehicle could also have
been loaded while he was attending to his personal business. As it
happened,
because he returned so late to the depot, the vehicle could
not be loaded.
The
arbitration award
[14]
Procedural fairness was not an issue in the
arbitration. The arbitrator was of the view that some of the charges
duplicated each
other and that once the duplication was taken account
of, the essential charges were the first two mentioned above.
[15]
On the question of the dishonest overtime
claim, the arbitrator reasoned that Gama would had to have clocked in
on his arrival at
the premises at 16h57 in any event. Moreover, there
was the unchallenged evidence of Gama that at about 16h00 he had
telephonically
advised his colleague, Patrick, of the difficulties he
was experiencing that day, which the arbitrator concluded showed that
he
had informed the employer he had gone to the bank. Consequently,
the arbitrator concluded that there was no dishonesty involved
in
Gama clocking in when he did. The arbitrator also dismissed a
suggestion that Gama’s conduct had amounted to fraud, which
in
any event he had not been charged with.
[16]
The arbitrator noted that there was
evidence to the effect that it was company policy that if a driver
was unable to take their
scheduled lunch hour between 12h00 and
12h30, they had to obtain express permission to vary this. Further,
there was evidence that
it was only when an enquiry was made about
the fact that Gama’s truck was stationary between 14h53 and
16h05 that he advised
he had gone to the bank.
Between
the last delivery he made at 14h12 and the time he arrived at the
firm’s premises at around 16H57 was a period of
nearly two and
a half hours during which he was entitled to a half hour lunch break.
[17]
The arbitrator discounted an argument
raised by the employer to the effect that Gama had made an authorised
use of company property,
because that was something he was never
charged with.
[18]
On the second charge relating to the
allegation that he failed to comply with his duties and
responsibilities, the arbitrator was
satisfied that the employer was
on firmer ground. The arbitrator found that Gama’s failure to
make three urgent deliveries
before he went to the bank was common
cause. Whatever challenges he had faced he should have dealt with the
employer’s work
demands. He found this conduct of Gama
unacceptable and highly irresponsible and accordingly found him
guilty of the second charge.
[19]
Even though the arbitrator felt that the
third and fourth charges largely duplicated the first and second
charges, he did give them
some attention. Dealing with the undue
overtime payments he concluded that Gama had not been paid overtime
and no evidence was
adduced that other employees had been paid
overtime as alleged. In relation to the last charge, he also found
that quite apart
from it being a duplication of the second charge,
the employer had not proven that Gama had intentionally caused any
damage to
it.
[20]
Turning to the question of the appropriate
sanction, the arbitrator criticised the internal enquiry
chairperson’s consideration
of warnings that dated back as far
as 2001. The arbitrator further dismissed the argument put forward by
the employer that those
warnings had been tendered in evidence merely
to establish Gama’s awareness of the offences for which he was
charged. Noting
that the disciplinary code and procedure of the
employer classified the offence as a serious one, but for which a
written warning
was recommended, and taking account Gama's length of
service of 12 years, he felt that a written warning valid for 12
months was
appropriate.
Grounds
of review
[21]
The applicant argues that in finding Gama
was not guilty of dishonest conduct, the arbitrator simply failed to
consider the second
half of the charge, namely that he had
dishonestly claimed overtime for the time spent at the bank. In the
light of Gama’s
concession that he had filled in the time
sheets showing he clocked out after 16h00 with the expectation of
receiving overtime
for the whole period after 14h00, the arbitrator
would have been compelled to conclude that Gama was guilty of the
first charge
as well.
More
specifically, the applicant takes issue with the arbitrator’s
finding that there was no ‘intentional’ dishonesty
on the
part of Gama.
[22]
In addition, the applicant contends that
the arbitrator failed to consider that Gama showed no remorse for his
misrepresentation
and exposed the firm to actual loss of overtime
wages of the two staff who had been waiting for Gama to return with
his vehicle
so they could load it and to the potential loss of paying
Gama overtime he was not entitled to.
[23]
Essentially,
the review is one based on reasonableness. The question which must be
answered is whether the outcome is one that no
reasonable arbitrator
could have reached on the evidence before the arbitrator irrespective
of his own reasoning. The current approach
to reviewing an
arbitration award on the grounds of reasonableness has recently been
expressed in the following way in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[1]
:
“
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be reached
on the
evidence and other material properly before the arbitrator. On this
approach the reasoning of the arbitrator assumes less
importance than
it does on the SCA test, where a flaw in the reasons results in the
award being set aside. The reasons are still
considered in order to
see how the arbitrator reached the result. That assists the court to
determine whether that result can reasonably
be reached by that
route. If not, however, the court must still consider whether, apart
from those reasons, the result is one a
reasonable decision maker
could reach in the light of the issues and the evidence.”
[2]
[24]
Consequently, the central question in this
review is whether an arbitrator could reasonably conclude that the
applicant had not
been dishonest in not coming forward with
information about his whereabouts for a period of two and a half
hours in circumstances
where his clocking record gave the impression
that he had been on duty during all that time. Gama’s defence,
as it emerged
gradually at the arbitration, was that he had reported
what he was doing to Patrick and accordingly had given an explanation
to
the company. As such, it could not be said that he had misled the
company about his private business that afternoon. The arbitrator
effectively accepted this defence.
[25]
However, he did so without taking into
account the fact that Gama had not offered this defence at his
disciplinary enquiry. He ignored
the fact that Anderson pointed out
the contradiction between the version offered by Gama at the
arbitration and the version offered
at the disciplinary enquiry.
Instead, the arbitrator sought to put the responsibility on the
applicant for confronting Gama with
the contradiction when he
testified, even though the applicant had plainly raised it during its
evidence. Essentially, the arbitrator
absolved Gama of any
responsibility for explaining this serious discrepancy in his
defence. It must also be noted that when Gama’s
representative
outlined his defence at the start of the arbitration proceedings, the
only element he mentioned was that it was
common cause that Gama had
been to the bank. No mention was made that there was no dishonesty in
not explaining his clocking record
because he had already reported
where he had been to Patrick the previous Friday.
[26]
What this oversight highlights is not
merely a flaw in the arbitrator’s own reasoning, but an
obstacle in reaching the conclusion
that Gama had not acted
dishonestly by failing to disclose his whereabouts that afternoon
until Anderson raised the discrepancies
with him a week later when
she was calculating the overtime pay due. Essentially, to reach the
same conclusion as the second respondent
another arbitrator would
have to conclude that the fact the applicant had not offered such an
obvious defence at his enquiry or
when Anderson raised the
discrepancy with him had no bearing on whether his version should be
believed. Any reasonable arbitrator
dealing with this defence would
have been compelled to assess the credibility of that version. The
contradiction in Gama’s
versions was laid before the
arbitrator: it was for Gama to explain why the critical issue of his
alleged conversation with Patrick
was never mentioned by him until
the arbitration proceedings.
[27]
A reasonable arbitrator faced with that
contradiction and the belated introduction of that defence would have
realised that it cried
out for an explanation. It is difficult to see
on what basis the later defence could be accepted as credible in the
absence of
a believable explanation by Gama for never having raising
it before. This is especially so given the centrality of the issue to
the charges against him and that it would have been the most obvious
issue to raise in his defence from the very beginning when
Anderson
queried his clocking record. I am satisfied that no reasonable
arbitrator could have accepted this defence on the available
evidence. Consequently, it is difficult to see how a reasonable
arbitrator could conclude that Gama could not have been aware that
he
would be paid overtime pay for all the time between 14h12 and 16h57
that afternoon in circumstances where there would be obviously
be a
question mark over his entitlement to such payment because he had not
sought permission to take a lunch break outside of the
normal time
nor to consolidate his lunch and tea breaks and because of the length
of time taken to return to the depot. Therefore,
it is equally
difficult to avoid the conclusion that he was dishonest in remaining
silent until his movements were questioned.
[28]
In the circumstances, I am satisfied that
no reasonable arbitrator would conclude that Gama was not guilty of
misrepresenting the
amount of overtime pay he was entitled to, by not
alerting the employer to his whereabouts before he was questioned
about them
a week later. He ought to been found guilty of the first
charge as well.
[29]
Having substituted the arbitrator’s
finding in respect of the first charge, the fairness of the Gama’s
dismissal also
has to be reconsidered. The arbitrator was correct
that the previous warnings relating to other occasions when he had
returned
late to the depot could not be taken account of for the
purposes of determining whether or not dismissal was appropriate.
However
it is not impermissible to consider that they established
Gama knew of the importance of returning timeously with his vehicle.
When one also considers Gama’s failure to even attempt to make
the urgent deliveries together with his prioritising of his
own
personal business without obtaining permission and without clearing
this beforehand or reporting it afterwards, it is understandable
that
the applicant would have had little reason to believe it could trust
him in future. The nature of his work as a driver is
obviously one
that means he cannot be directly supervised all the time. As such,
greater reliance is placed on him exercising self-supervision
than in
the case of an employee who is always on site. The applicant is
entitled to expect he will act diligently in performing
his duties
without the need for constant monitoring and ought to be confident
that he will alert the employer timeously if a situation
arises where
he cannot perform his delivery duties for one or other reason. Gama’s
conduct on the day in question suggests
that it did not really bother
him that he had urgent deliveries to complete or staff might be
waiting at the depot to load his
vehicle. Incidentally though it was
true that Gama was ultimately not paid overtime pay for the entire
period after 14h00, but
the arbitrator also concluded that there was
no evidence that the other two employees who had waited for the
return of his vehicle
had been paid overtime for the period. In fact,
Anderson did testify that they were paid and this was never
challenged. Had the
respondent being aware that Gama was not going to
return in time for his vehicle to be loaded, it clearly would not
have been necessary
for it to incur the additional overtime pay
accruing to those employees, so it was also plainly incorrect of the
arbitrator to
conclude that no undue expenditure was incurred as a
result of his actions. As such, this was a further aggravating
factor.
[30]
Gama was also not in the least bit
apologetic for his delayed return and believed he was entitled to
overtime pay in any event because
he was entitled to consolidate his
lunch and tea times. He also decided that he was best able to judge
whether it was better to
deal with his personal business before
returning to the depot rather than returning to the depot first and
then asking permission
to do so. All things considered, I believe the
employer was justified in believing it could not trust him.
Order
[31]
The applicant’s late filing of its
replying affidavit and the respondent’s late filing of its
answering affidavit are
condoned.
[32]
The finding of the second respondent that
the third respondent was not guilty of gross dishonesty for claiming
overtime pay and
conducting private business during working hours on
10 October 2008 is reviewed and set aside and substituted with a
finding that
he was guilty of this charge.
[33]
The finding of the second respondent that
the third respondent’s dismissal by the applicant was
substantively unfair is reviewed
and set aside and substituted with a
finding that his dismissal was substantively fair.
[34]
The relief awarded by the second respondent
in paragraph 5 of his award is reviewed and set aside.
[35]
No order is made as to costs.
R
LAGRANGE, J
Judge
of the Labour Court
Appearances:
For
the Applicant: N Preston of Cliffe, Dekker Hofmeyr
For
the Third and Fourth Respondents: T Manasoe of NUMSA
[1]
(2013)
34
ILJ
2795
(SCA) at 2801, para [11]
[2]
At 2802, para [12].(emphasis added)