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[2015] ZALCJHB 205
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Castor And Ladder (Pty) Ltd v National Union of Metal Workers of South Africa and Others (JR384/13) [2015] ZALCJHB 205 (16 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 384/13
CASTOR
AND LADDER (PTY) LTD
Applicant
And
NATIONAL UNION OF
METAL WORKERS OF SOUTH AFRICA
First Respondent
NUMSA obo RAMUSHI
JOHN & 17 OTHERS
Second Respondent
METAL AND
ENGINEERING INDUSTRIES BARGAINING COUNSEL
Third Respondent
ADVOCATE L C SHANDU
N O
Fourth Respondent
Heard:
8 July 2015
Delivered:
16 July 2015
JUDGMENT
HULLEY,
AJ
Introduction
[1]
This
is an application to review and set aside an arbitration award issued
by the fourth respondent on 21 December 2012 under the
third
respondent’s case number MEGA36092.
[2]
In
terms of that award the fourth respondent found that the dismissal of
the employees by the applicant was “not for a fair
reason”
and ordered the applicant to reinstate them to the position which
they occupied “without any change to their
conditions of
service” and to do so within 21 days of the award.
[3]
In
addition, the applicant seeks condonation for the late delivery of
(a) the review application, (b) its Rule 7A(8) notice and
(c) the
record.
[4]
The
first and second respondents, in turn, have applied to dismiss the
review application. The two matters were set down and
heard
simultaneously. There is no need to consider the
application to dismiss the review: if the review succeeds, the
latter
application must be dismissed; if the review fails, the latter
application is unnecessary.
Principles relating to
condonation
[5]
The
principles applicable to applications for condonation are settled:
the courts have a wide discretion which must be exercised
judicially
on a consideration of all the facts of each case.
[1]
In exercising its discretion the court must do so within certain
recognised principles.
[2]
[6]
Certain
factors are generally considered relevant, but the weight to be
afforded to each factor is dependent upon the particular
circumstances of each case.
[3]
The factors considered relevant are the extent of the delay and the
explanation therefor, the prospects of success and the
importance of
the case,
[4]
the prejudice
suffered by the respondent and its interest in finality, the
convenience of the court and the avoidance of delay
in the
administration of justice
[5]
.
[7]
No
single factor is individually decisive but each must be weighed
against the others
[6]
.
A slight delay and a good explanation may make up for poor
prospects
[7]
. On the other
hand, the importance of the matter and good prospects may compensate
for a long delay
[8]
.
[8]
In
a case where the delay is lengthy the explanation must cover the
entire period of the delay.
[9]
[9]
Since
I am obliged to consider the prospects of success as part of the
enquiry into condonation, I intend considering the merits
first.
I will deal with the remaining issues below.
The arbitration
proceedings
[10]
At
the arbitration hearing the applicant was represented by its Group HR
Manager, Mr Peter Dixon, and the employees by a union official,
Mr
Frans Mathekga.
[11]
In
his opening address Dixon explained that the employees were all
guilty of derivative misconduct and that they had been charged
with
stealing of finished goods from the company. Various bundles
were handed up to the arbitrator. The relevant portions
of the
charge sheet read as follows:
“
DERIVATIVE
MISCONDUCT
IN THAT ON OR ABOUT:
RECENTLY
IT IS
ALLEGED
:
·
THAT
YOU PARTICIPATED IN A SYNDICATE INTEND OF (
sic
)
STEALING FINISHED GOODS AND / OR MATERIAL FROM THE COMPANY AND
DISPOSING [OF] IT FOR YOUR OWN BENEFIT.
·
OR
THAT YOU WERE AWARE OF OTHERS IN THE COMPANY WHO HAS (
sic
)
BEEN STEALING.
”
[12]
The
applicant called a single witness, Mr Rudolph van der Wielen and the
employees called three witnesses, all of whom were former
employees
and part of the group constituting the second respondent: Messrs John
Ramushu, Morgan Motaung and Bheki Mkhaliphi.
[13]
Van
der Wielen testified that he was the applicant’s production
manager. He had taken over the management of the despatch
department in January 2012 from Mr Andre Cronje who had passed away
in November 2011.
[14]
According
to Van der Wielen the company performed stocktakes bi-annually, once
in September and once in March of each year.
The September 2011
stocktake revealed that substantial stock losses had been incurred.
As a result, new security measures
were introduced: an additional
security company was placed at the loading base, the CCTV cameras
were updated and a so-called mini
stocktake was performed in January
2012 to determine whether these measures had proved effective.
They had not and that the
substantial stock losses persisted.
[15]
Van
der Wielen testified that the company received information regarding
the theft of its stock from four different sources:
15.1
In
the first instance, from the employees on the factory floor.
(The factory floor was located alongside the despatch section).
15.2
Secondly,
a member of the public, Ms Moshaahlana Abegail Monyitshwane, made a
statement to the police under oath.
15.3
A
member of the sales department.
15.4
Two
employees who had been dismissed.
[16]
Van
der Wielen handed in the statement deposed to by Monyitshwane.
In the statement Monyitshwane indicated that she had resided
in
Tembisa since February 2008 together with her boyfriend at the time,
one Aaron Satekge. She was aware that he worked for
the company
and alleged that he frequently brought the company’s stock,
consisting of stepladders, curtain rails, burglar
doors, burglar
proofing and safes (presumably to their home) and acted together with
three of his colleagues. She identified
the three colleagues as
Jimmy Mpenga, King Mbonxa and John Ramushu. She stated that the
four would sell these various items
to the community in Tembisa.
[17]
According
to Van der Wielen a person from the sales department was requested to
work in despatch in order to “keep an eye”
on the
activities. He testified that she “did not last very
long” and became increasingly uncomfortable and requested
to be
returned to the sales department. He did not indicate what it
is that she observed.
[18]
Van
der Wielen alleged that the applicant had lost as much as R620 000.00
between the September stocktake and the mini stocktake
in January
2012.
[19]
He
also testified that two of the employees who had been dismissed asked
for their jobs back and indicated that while they knew
about what was
transpiring they were not prepared to divulge names because they were
too afraid.
[20]
None
of the persons who had direct knowledge of the thefts were called to
testify. Van der Wielen indicated that Monyitshwane
had
disappeared and a security guard who had observed what had transpired
“vanished off the earth”. The security
guard was
employed by an outside security firm and when the applicant contacted
the company for assistance it indicated that it
was unable to find
the security guard.
[21]
Arising
from the aforesaid disciplinary proceedings were instituted against
all persons employed within the despatch department
on the basis that
they had participated in a syndicate intent of stealing finished
goods and/or material from the company and disposing
of it for their
benefit, alternatively, for being aware of others within the company
who had been stealing (and failing to report
it).
[22]
Employees
were afforded the opportunity to submit to a polygraph test and those
who passed the test were not dismissed. (There
was some dispute
as to whether the employees were properly informed of the purpose of
the polygraph test, but I do not think that
this is of any relevance
to this matter).
[23]
Van
der Wielen testified that after the first team of despatch staff was
dismissed a new team was brought in and a clean stocktake
with no
losses was recorded. He later, under cross-examination, stated
that a small loss of R32 000.00 was recorded
in the September
2012 stock-take.
[24]
Under
cross-examination Van der Wilen conceded that a person by the name of
Bheki may have been transferred from a different department
in the
very week in which the dismissals took place and that he was somehow
subsumed among the other employees in despatch.
[25]
He
further conceded that it was possible that the employees had not been
informed of the purpose for the stocktaking in September
and January
2012. He testified that the CCTV footage was inconclusive as it
merely demonstrated people removing stock but
was unable to determine
whether they were entitled to do so legitimately.
[26]
When
cross-examining Mathekga posed various questions to Van der Wielen
relating to the hearsay character of some of his evidence,
and in
particular to the statement of Monyitshwane. He suggested to
Van der Wielen that the persons implicated by Monyitshwane
did not
live in Tembisa but as far afield as Hammanskraal. (It appears
that the contention was that they were unlikely to
have travelled to
Tembisa).
[27]
A
few questions were posed to Van der Wielen regarding a discrepancy in
the value of the stock loss given at the disciplinary hearing
and the
value given at the arbitration. He explained that the amount
provided at the arbitration proceedings was after a
final audit had
been conducted, whereas that given at the disciplinary enquiry was
before the final audit had been done.
[28]
Essentially,
each of the witnesses called on behalf of the employees denied any
knowledge of stock theft.
[29]
Ramushu
was the only one of the four employees implicated by Monytshwane who
testified. He was a driver in the despatch department.
When cross-examined about the stock sheets for April to December 2011
in respect of all stock returns, Ramushu stated that the
book in
which he kept that information had been lost when the vehicle in
which it was kept was taken into the panel-beaters following
a car
accident. Upon further cross-examination it turned out that the
accident took place in 2010 and the only book he was
able to hand up
related to 2011, but did not include the period for April to December
2011. Eventually, upon further probing,
he stated that “maybe
I must have misplaced it after I was dismissed”.
[30]
Motaung
testified that he was an assistant driver. He too denied the
charges. Under cross-examination he claimed that
it was not the
practice for drivers or assistant drivers to consider the invoices
and compare it with the amount of stock before
loading vehicles.
He acknowledged, however, that the drivers had to consider the
invoices when making deliveries in order
to determine precisely how
much stock ought to be delivered to clients.
[31]
Kalepe
testified that he was a forklift driver who worked in the storeroom
and that in January 2012 he was transferred to despatch.
He had
only been in the department for a very short while before he too was
charged and ultimately dismissed. He testified
that he had
taken over from the regular forklift driver in despatch.
His evidence that he was transferred from a different
department was
challenged under cross-examination.
The arbitration award
[32]
In
finding that the dismissals were unfair, the fourth respondent, after
referring to the decision of the Labour Appeal Court in
Chauke
and others v Lee Service CC t/a Leeson Motors
[10]
,
noted that in order for an employer to successfully rely upon
derivative misconduct to hold employees liable the employer must
present credible evidence to demonstrate that (1) there was original
misconduct being perpetrated against it, (2) the employees
charged
knew of the original misconduct, (3) the assistance of the employees
in detecting the misconduct had been sought; and (4)
they had
unreasonably refused to offer such assistance.
[33]
The
arbitrator concluded that the applicant had “failed to prove
that any of these features were present with regard to these
employees”. Noting that it was “possible”
that the perpetrators were among the employees dismissed he pointed
out that it was “also very possible that there are no
perpetrators of the misconduct among all the dismissed employees
hence
the employer continues to suffer stock losses”.
[34]
In
coming to these conclusions the fourth respondent made the following
critical findings:
34.1
No
evidence was presented to show that all the employees at despatch
“were in cahoots” in respect of the thefts.
34.2
The
affidavit of Monyitshwane was disputed by the employees and “was
never put to any of the employees that testified”.
34.3
The
results of the stocktake demonstrated that the thefts continued even
after the dismissal of the employees. This, he said,
tended to
prove that they may not have been involved in the thefts. In
coming to this conclusion the arbitrator stated that
“it is
worth noting that the stock loss for the six-month period up to
September 2011 is much less than that of the 2012
financial year end
when the employees had long been dismissed” and that the
applicant had not supplied a comparison between
the 2011 and 2012
financial year ends.
34.4
The
applicant had “presented no evidence” to prove that the
employees had been made aware of the problem of theft prior
to being
charged.
Consideration of the
grounds of review
[35]
The
essence of the grounds of review raised by the applicant relates to
the alleged failure of the arbitrator to deal properly with
the
principles outlined in the
Chauke
case. In particular, the applicant contends that the evidence
presented on its behalf resulted in the onus shifting to the
employees to demonstrate that they were innocent of the misconduct
with which they had been charged. It contended that only
three
of the employees were called to testify and that in terms of the
principles enunciated in
Chauke
each employee had testify in order to exculpate himself or herself.
The applicant also pointed out that insufficient weight
was given to
the evidence of its witness.
[36]
This
calls upon me to analyse the
Chauke
case and the legal principals developed around so-called group
misconduct.
[37]
In
the
Chauke
case the court was called upon to determine whether the dismissal of
all workers in a particular section of the employer’s
business
was substantively fair. The evidence showed that there had been
several acts of malicious damage to the property
of clients (the
company was a panel-beating and spray-painting business).
Despite various attempts on the part of the company
to ascertain the
identity of the perpetrators, it was unable to do so. The
company provided several warnings to the whole
workforce that any
further acts of sabotage to any vehicle where it was unable to
identify the culprit would result in the dismissal
of
every
worker in that section. A further act of sabotage was
perpetrated and the company was unable to identify the culprit.
It proceeded to dismiss all the workers in each of the sections
dealing with the vehicles.
[38]
In
Chauke
,
Cameron JA examined the jurisprudential basis for derivative
misconduct. The learned judge pointed out that there were two
possible ‘lines of justification for a fair dismissal’
[11]
:
‘
The first is
that a worker in the group which includes the perpetrators may be
under a duty to assist management in bringing the
guilty to book.
Where a worker has or may reasonably be supposed to have information
concerning the guilty, his or her failure
to come forward with the
information may itself amount to misconduct. The relationship between
employer and employee is in its
essentials one of trust and
confidence, and, even at common law, conduct clearly inconsistent
with that essential warranted termination
of employment (
Council
for Scientific & Industrial Research v Fijen
(1996) 17 ILJ 18 (A) at 26D-E). Failure to assist an employer in
bringing the guilty to book violates this duty and may itself
justify
dismissal.’
[12]
[39]
In
support of this the learned judge referred to the case of
Food
and Allied Workers Union and others v Amalgamated Beverage Industries
Ltd
.
[13]
In that case a large group of workers had assaulted a scab driver
leaving him severely injured. The employer was unable to
prove
which of those present at the workplace at the time actually
perpetrated the assault and accordingly proceeded to charge
every one
of those employees who had clocked in and was in the vicinity of the
incident when it occurred. None of the workers
came forward at
the workplace hearings to affirm their innocence or to volunteer any
evidence about the perpetrators. The
Labour Appeal Court (per
Nugent J, as he then was) held that –
‘
In the field
of industrial relations, it may be that policy considerations require
more of an employee than that he merely remain
passive in
circumstances like the present, and that his failure to assist in an
investigation of this sort may in itself justify
disciplinary
action.’
[14]
[40]
With
reference to that
dictum
,
Cameron JA noted that:
‘
This
approach involves a derived justification, stemming from an
employee's failure to offer reasonable assistance in the detection
of
those actually responsible for the misconduct. Though the dismissal
is designed to target the perpetrators of the original misconduct,
the justification is wide enough to encompass those innocent of it,
but who through their silence make themselves guilty of a derivative
violation of trust and confidence.’
[15]
[41]
In
these circumstances, the failure by ‘any of the workers
concerned’ to give evidence justified the inference, said
the
learned judge ‘that all those present at the workplace on that
day either participated in the assault or lent it their
support’.
[42]
In
the
Chauke
case Cameron JA was of the view that the evidence demonstrated the
direct involvement of all the employees who had been dismissed
and
that it was not necessary to rely upon derivative misconduct.
[43]
Since
Chauke
there have been several other cases dealing with the concept of
derivative misconduct or, independently of team misconduct.
In
Foschini
Group Ltd v Maidi and others
[16]
Revelas AJA endorsed the view that:
‘
if employees
in a small store are unable to give an explanation for stock losses
in that store to the effect that it was beyond
their control, the
only possible inference is that they are guilty.’
[17]
[44]
This
court has also recognised group misconduct in the context of
so-called “team misconduct”
[18]
.
[45]
In
True
Blue
[19]
Shai AJ stated that:
‘
What is
clear to me is that in the case of 'team misconduct' just as in the
case of derivative misconduct and common cause purpose
there is no
need to prove individual guilt. It is sufficient that the employee is
a member of the team, a team the members [of]
which have individually
failed to ensure that the team meets its obligations, in our given
case, to ensure that there was no stock
loss.’
[46]
In
that case the learned judge pointed to the fact that various measures
taken to prevent the stock loss had all failed and the
employees had
on several occasions been warned of the stock loss and told that they
would have to accept responsibility for such
losses. The
learned judge noted that the employees ‘neither gave evidence
at the disciplinary hearing nor filed answering
affidavits herein to
explain themselves or counter the evidence of the applicant’
and that the version of the applicant was
the only version before
court.
[20]
The test for review
[47]
Where
an application for review is brought on the basis of a challenge to
the findings made by the arbitrator in light of the evidence
presented, the applicant for review takes upon himself the
responsibility to demonstrate that the decision arrived at by the
arbitrator
is one which no reasonable commissioner or arbitrator
could have arrived at.
[21]
[48]
In
Gold
Fields
[22]
Waglay JP noted that when assessing an award:
‘
[15] …it
serves no purpose for the reviewing court to consider and analyse
every issue raised at the arbitration and regard
a failure by the
arbitrator to consider all or some of the issues albeit material as
rendering the award liable to be set aside
on the grounds of process
related review.
[16] In short: A
reviewing court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated
the facts presented at the
hearing and came to a conclusion that is reasonable.’
[23]
[49]
The
Judge President noted that in considering the evidence a holistic
approach should be adopted and ‘the reviewing court
must
necessarily consider the totality of the evidence and then decide
whether the decision made by the arbitrator is one that
a reasonable
decision-maker could make’.
[24]
Consideration of the
award
[50]
There
are a number of indications in the award which suggest that the
arbitrator misunderstood the nature of the inquiry.
[51]
First,
having satisfied himself that the employer’s case was based
upon derivative misconduct or team misconduct, the arbitrator
held
that there was no evidence presented to demonstrate that all
employees at despatch “were in cahoots”. It
is
clear from the passages referred to in the
Chauke
and other judgments dealing with derivative misconduct that there was
no requirement that the employees should be “in cahoots”
with each other. If they were in cahoots, there would be no
need for application of the principle of derivative misconduct
to
their cases. Each of the cases dealing with group misconduct
made it clear that an employee’s culpability derived
not from
the fact that he or she made common cause with or was “in
cahoots” with the actual perpetrator, but rather
from his or
her failure to identify or assist the employer in identifying the
wrongdoer (derivative misconduct) or in his or her
failure to ensure
that the team as a whole did not suffer losses (team misconduct).
[52]
In
the case of derivative misconduct the principal reason for holding
each individual liable derives from the breach of the trust
and
confidence reposed in him by the employer. An employee who is
aware of wrongdoing, especially in the form of theft or
corruption on
the part of a colleague, cannot stand idly by. Such employee
owes an obligation towards the employer to ensure
that sufficient
information is supplied to the employer to assist in the
investigation of the wrongdoing. Where the employee
fears for
his or her safety or wellbeing, the information can be supplied on an
anonymous basis.
[53]
Secondly,
the arbitrator pointed to the fact that the affidavit of Monyitshwane
was not put to any of the employees who testified.
With
respect, this proposition is not only exaggerated in the present
case, it is misplaced.
[54]
In
President
of the RSA v. SARFU
[25]
the Constitutional Court after dealing with the nature and extent of
the obligation to cross-examine, stated:
“
[64] The
rule [that one was obliged to put every aspect of one’s case to
the opposing witnesses who had personal knowledge
thereof] is of
course not an inflexible one. Where it is quite clear that prior
notice has been given to the witness that his or
her honesty is being
impeached or such intention is otherwise manifest, it is not
necessary to cross-examine on the point, or where
'a story told by a
witness may have been of so incredible and romancing a nature that
the most effective cross-examination would
be to ask him to leave the
box'.
[65] These rules relating to the duty
to cross-examine must obviously not be applied in a mechanical way,
but always with due regard
to all the facts and circumstances of each
case. But their object must not be lost sight of.’
[55]
There
are a number of issues relating to the statement of Monyitshwane
which the arbitrator ignored:
55.1
Only
one of the employees implicated in that statement, Ramushu, testified
on behalf of the employees; the statement could not be
put to any of
the other employees who testified.
55.2
The
statement had been introduced during the testimony of Van der Wielen,
so Ramushu had received prior warning of the fact that
his integrity
would be challenged and the basis thereof.
55.3
No
cross-examination had ensued on the statement save in limited
respects relating to its hearsay nature and the possibility that
some
of the employees implicated lived far away. However, when he
testified Ramushu provided no evidence to support the version
put to
Van der Wielen.
55.4
Importantly,
there was no suggestion during cross-examination of Van der Wielen
that any aspect of the statement was false.
It was, for
instance, not suggested that the employees implicated therein denied
knowing the deponent or that Mr Satekge denied
ever having had a
relationship with her. Nor was it suggested that any of the
implicated employees would deny that they had
ever been to
Monyitshwane’s house in Tembisa.
55.5
Satekge
did not testify and Ramushu who did testify, and had been given
advance warning of the challenged to his integrity, did
not
contradict any aspect of Monyitshwane’s statement.
[56]
Thus,
by the time both parties had closed their case, the employer had
produced a statement which implicated several employees and
none of
them had contradicted it. What was to be made of that?
The arbitrator provided no answer to that question.
[57]
Now,
it is undoubtedly so that the statement, without the testimony of
Monyitshwane, was hearsay. However, the obligation
remained
upon the arbitrator to consider whether to admit the statement and,
if so, what weight to attach to it. Of course,
the arbitrator
ought to have determined the question of admissibility of the
statement at the close of the employer’s case
and assess its
value and weight at the end of the hearing.
[26]
The arbitrator in this case did none of this.
[58]
Thirdly,
the arbitrator’s finding that “the content” of the
affidavit had not been disputed is simply wrong.
As pointed out
above, it had
not
been disputed. What was disputed was its hearsay character.
There were veiled suggestions that the content may be challenged,
but
such a challenge never materialised.
[59]
Fourthly,
the arbitrator’s finding that (a) the employer continued to
lose stock even after the employees were dismissed,
and that (b) this
fact supports the inference that the employees may not have been the
wrongdoers is a surprising one. Van
der Wielen had testified
that there were no stock losses in the subsequent stocktake, but, in
re-examination, pointed out that
a R32 000.00 stock loss was
recorded in the final audit in September 2012.
[60]
The
thrust of Van der Wielen’s thesis was that by dismissing the
entire department, the applicant had managed to root out
the
culprits. In cross-examination there was no serious challenge
to the figures presented by Van der Wielen nor his thesis.
The
loss of R32 000.00 suffered subsequent to the departure of the
employees was certainly substantially lower than that suffered
previously. Clearly, something must have changed between the
date when the first and subsequent stocktakes were. The
only
evidence produced to explain this massive difference was the
dismissal of the employees. There may have been other
explanations for the differences, but none of these were suggested in
cross-examination or explored when the employees testified.
[61]
Fifthly,
the arbitrator’s finding that the employer had presented no
evidence to prove that the employees had, prior to being
charged,
been informed of the problem of stock theft must, on the evidence, be
accepted as correct. But that is not, with
respect, the extent
of the enquiry. The employees have an opportunity, even at the
disciplinary inquiry, to come forward
and assist the employer in
identifying the culprits or demonstrate that he or she is entirely
unaware of the misconduct that was
perpetrated.
[62]
In
some of the cases to which I have referred the employers had informed
the employees of the consequence of their silence and had
sought
their assistance
prior
to any disciplinary inquiry. There was, however, no suggestion
in any of those cases that the opportunity could not be provided
to
the employees for the first time
at
the disciplinary inquiry. In
True
Blue
the court pointed to the failure of the employees, even in the Labour
Court, to provide evidence under oath to challenge the employer’s
version.
[63]
I
can see no reason in principle why an employee who has been informed
of the purpose of seeking his or her assistance, would not,
once he
or she is informed at the disciplinary inquiry, be under a duty to
come forward with information and avoid disciplinary
sanctions.
[64]
In
the present case, the evidence demonstrated that the employees were
aware at least by the time they got to the disciplinary enquiry
of
the applicant’s case. This appeared from the charge sheet
itself. Moreover, those employees who did testify
made it clear
that they were aware at the disciplinary enquiry of the true nature
of the employer’s case. It was also
suggested by Mr
Mathekga during cross-examination of Van der Wielen.
Notwithstanding such awareness, they elected not to
testify, and
elected not to assist the employer.
[65]
Finally,
the arbitrator’s suggestion that it was possible that the thief
or thieves were not among the employees dismissed
is against the
weight of the evidence. The evidence presented by the employer
was that several persons had identified the
culprits as having
emanated from the despatch department. This evidence was
hearsay, but the arbitrator was bound to consider
its admissibility
and, if admitted, the weight to be attached to it. He did not
do so.
[66]
It
was clear from all the evidence that the despatch department had
direct access to the stock. There was no suggestion that
persons from any other departments had access to the stock and if so,
had the means of removing the stock from the company.
The
members of the despatch department had delivery vans and accordingly
had obvious means to remove the stock.
[67]
In
all the circumstances, it is apparent that the arbitrator did not
apply his mind properly to the evidence and the issues which
were
before him.
[68]
Had
he approached the matter in this fashion, the arbitrator would then
necessarily have realised that each of the employees who
had been
dismissed and who were part of the despatch department was under an
obligation to testify in order to exculpate him or
herself.
Three people took advantage of this, Messrs Ramushu, Motaung and
Mkhaliphi. The arbitrator, however, did not
assess their
evidence and did not explain whether he considered their evidence to
be persuasive. I have in some parts highlighted
some
difficulties with the evidence presented on behalf of the employees
as I have with the evidence of the applicant. In
light of the
route I intend adopting, I do not propose going through all the
evidence in too much detail.
[69]
Kalepe
is the one exception, on his version he had only arrived at the
department when the disciplinary notices were issued.
It was
conceded by Van der Wielen that this may be correct. In my
view, he was wrongly dismissed and his dismissal was accordingly
unfair.
The condonation
applications
[70]
I
turn now to consider the remaining aspects of the condonation
applications. As previously indicated the applicant seeks
condonation for the late delivery of (a) the review application, (b)
its Rule 7A(8) notice and (c) the record. For the sake
of
convenience I shall refer to these as the first, second and third
applications for condonation, respectively.
[71]
With
regard to the first application for condonation, s. 145 of the Labour
Relations Act requires a review application to be brought
within six
weeks of service of the award on the applicant.
[72]
It
is unclear whether the award was served on the applicant, but it is
apparent from its own affidavit that it acquired knowledge
on 9
January 2013. The review papers were served on 13 March 2013,
meaning that the application was 21 days out of time.
[73]
The
delay in launching the review application is not slight but is also
not excessive. Six of those days are probably attributable
to
the delay in transmitting the papers to the deponent and in arranging
for him to depose to it before a commissioner of oaths.
[74]
In
his affidavit in support of the first condonation application
Litschka explained that he needed to provide the attorney with
all
relevant information in order to prepare the application. It
appears that he was unable to obtain all the relevant information
and
documentation timeously to allow for the finalisation of the founding
papers within the requisite time period.
[75]
There
are disconcerting aspects to the manner in which the first
condonation application was dealt, but in light of the fact that
the
respondents have not suffered any prejudice, I am inclined to grant
condonation.
[76]
With
regard to the second condonation application, Rule 7A(8) requires an
applicant seeking to review an award must within 10 days
after the
Registrar has made the record available, either amend, add to, or
vary its notice of motion together with any supplementary
affidavit
or file a notice confirming that it stands by its original notice of
motion.
[77]
According
to the applicant the transcript was “served” on the
applicant on 27 February 2014. (It is unclear who
served it on
the applicant. As I understand the replying affidavit and the
affidavit in the third condonation application,
transcribers provided
the transcript to the applicant on that date). The applicant
accordingly had until 13 March 2014 to
take either of the steps
contemplated in Rule 7A(8). A notice in terms of Rule 7A(8)(b)
was served on 28 May 2014.
It is accordingly 48 (court) days
out of time.
[78]
The
affidavit in the second condonation application was deposed to by the
applicant’s attorney of record, Mr John Dua.
In this
affidavit Dua explained that he had perused and considered the
transcript after receipt thereof on 27 February 2014 and
then
prepared a notice in terms of Rule 7A(8)(b), but due to what he
describes as a “secretarial / administrative error”
the
notice was not sent to the attorney’s correspondent for service
and filing, alternatively, was sent but was not received
by the
correspondent. He stated that he was unable to expand upon this
issue because the secretary who had previously dealt
with the matter
had left the firm and there was no proof of transmission on the
office file.
[79]
In
opposing the two applications for condonation the first and second
respondents submitted that the dilatory manner in which the
applicant
acted was indicative of a general lack of interest.
[80]
With
regard to the second application for condonation the respondents
pointed to the provisions of paragraph 11.2.2 and 11.2.3 of
the
Practice Directive of this Court. Paragraph 11.2.2 requires
that a record be filed within sixty days of notification
by the
registrar that the record “has been received” and in
terms of paragraph 11.2.3 if the record is not filed within
that time
period the application is “deemed” to have been withdrawn
unless the applicant has “within that period
of time”
requested the consent of the respondent and, if not granted,
approached the Judge President for condonation.
This was not
done, and the application was accordingly, so they contended,
defective. (I deal further with this aspect when
considering
the third condonation application).
[81]
I
have several difficulties with the application for condonation in
respect of the late filing of the Rule 7A(8) notice. No
indication is given by Dua of the identity of the secretary, when she
left the firm, where she presently works or resides, or whether
efforts were made to obtain an explanation or an affidavit from her.
Nor was a copy of the notice which was allegedly prepared
at that
point in time attached. Instead, the only notice attached to
the papers was that signed on 27 May 2014. No
explanation is
provided for why the earlier notice was not attached, whether it was
still in existence and if not, why not.
In fact, no explanation
is provided as to the date on which the first notice was prepared.
The broad and general manner in
which the condonation application is
dealt with is most unsatisfactory.
[82]
In
reply Dua explained that he was not aware until 3 October 2013 that
the bargaining council had in fact submitted the record and
compact
discs to the registrar of this court. He explained that upon
confirmation that the record had been filed with the
registrar
“immediately a request was made for the transcription of the
record”. He stated that when requesting
the transcription
of the record the Johannesburg correspondent attorney had not
realised that a deposit was required resulting
in the delay in the
completion of the transcript.
[83]
The
delay is substantial and has not been explained with the degree of
specificity demanded by this court. There is, however,
no
suggestion that the explanation provided is false and I would be
reluctant to make such a finding especially where the explanation
is
provided by an officer of this court.
[84]
The
essence of the explanation provided is that the notice in terms of
Rule 7A(8)(b) was prepared but was never served on the other
side.
This demonstrates an intention to comply timeously.
[85]
In
any event, no prejudice has been suggested and the prospects of
success (as set out above) are good. I am inclined to condone
the late filing of the Rule 7A(8)(b) notice.
[86]
In
so far as the third condonation application is concerned, Rule 7A(6)
requires the applicant in review proceedings to provide
each party
and the registrar with copies of the record or portion of the record,
as the case may be. It does not specify
the time period within
which this is to be done. The reason is obvious when one
considers both sub-rules (5) and (8).
[87]
Rule
7A(5) requires the registrar to make available to the applicant the
record which is received (from the person whose decision
is being
reviewed). The applicant must then make copies of such portions
of the record as are necessary for the review.
Rule 7A(8)
requires the applicant within 10 days after the registrar has made
the record available, to either amend, add to or
vary its notice of
motion together with any supplementary affidavit or file a notice
confirming that it stands by its original
notice of motion.
[88]
No
time period is prescribed for the filing of the record after it is
received by the applicant because the applicant has a mere
10 days
from the date of receipt of the record to the date of compliance with
Rule 7A(8).
[89]
Practically,
however, what the CCMA or bargaining council files with the registrar
is not a transcribed record, but merely the recordings
which are
captured on tape or compact discs.
[27]
Thus, what was filed initially by the bargaining council or CCMA, as
the case may be, was not “the record” (which
implies a
document), because it was not in a format that could properly be
considered by the reviewing court. Once the record
is
transcribed and made available to the applicant, the 10-day period
prescribed by Rule 7A(8) commences.
[90]
Paragraph
11.2.2 of the Practice Manual, in recognition of the practical
difficulties, prescribes that the record be filed within
sixty days
of the date on which the applicant “is advised by the
registrar” that the record has been received (from
the
bargaining council or CCMA). The reference to “days”
in the Practice Manual is to court days. In terms
of this
provision the time period commences once the applicant receives the
advice from the registrar and not once the record is
filed.
[91]
In
its affidavit in support of the third application for condonation the
applicant alleged that it had received no notice that the
bargaining
council had filed its notice in terms of Rule 7A(8). It only
became aware on 3 October 2013 that the recordings
had been filed and
immediately arranged for its transcription. It states that the
record was filed 148 days out of time.
[92]
No
opposing papers were filed in response to the third condonation
application, but comments were made by the first and second
respondents in their affidavit opposing the second condonation
application. I have set these out in my consideration of the
second condonation application.
[93]
As
noted previously, the record was in fact filed on 27 February 2014.
On my calculation, the record was filed 48 days out
of time, and not
148 days as alleged. It appears that the applicant’s
calculations may have been based on the assumption
that it was
calendar rather than court days.
[94]
At
any rate, the delay is substantial. The essence of the
explanation is that the delay was caused by the period taken to
transcribe the record and a further delay was caused because of a
failure to pay the deposit to the transcription company.
[95]
Once
again, there is no suggestion of any prejudice and I am inclined to
grant condonation.
Conclusion
[96]
The
applicant has sought an order reviewing and setting aside the award,
but has not in its notice of motion requested this court
to
substitute that award with its own finding. In my view such a
request could in any event not be acceded to. The
arbitrator
failed to make any findings on the admissibility of various hearsay
statements at the conclusion of the applicant’s
case; but had
he done so, the respondents’ representative may well have
elected to call all the employees.
[97]
Insofar
as the question of costs is concerned, I am of the view that it would
be fair in the circumstances if each party were to
bear their own
costs.
[98]
In
all the circumstances I grant an order in the following terms:
98.1
Condonation
is granted in respect of the late delivery of the review application,
the record and the notice in terms of Rule 7A(8).
98.2
The
award of the fourth respondent under case number METS2331, dated 21
December 2012, is hereby reviewed and set aside except in
respect of
Mr Bheki Kalepe.
98.3
The
unfair dismissal dispute in respect of the remaining employees is
remitted to the third respondent for allocation to a commissioner
other than the fourth respondent for a hearing
de
novo
.
98.4
There
is no order as to costs.
__________________
Hulley, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. D L Williams
Instructed
by:
John Dua Attorneys
On
behalf of the Respondent:
Ms Prudence Gqobo NUMSA union official
[1]
Nature's Choice
Products (Pty) Ltd v Food & Allied Workers Union & others
(2014) 35 ILJ 1512 (LAC), at 1515C – E
[2]
Britten v. Pope
1916 AD 150
, at 157
[3]
Federated
Employers’ Fire & General Insurance Co. Ltd v. McKenzie
1969 (3) SA 360
(A), at 362G/H
[4]
Melane v Santam
Insurance Co Ltd
1962 (4) SA 531
(A), at 532C – D
[5]
Federated
Employers v. McKenzie
,
supra
[6]
Melane
,
supra
,
[7]
United Plant
Hire (Pty) Ltd v Hills and Others
1976 (1) SA 717
(A) at 720E – G
[8]
Melane
,
supra
,
[9]
Ethekwini
Municipality v Ingonyama Trust
2014 (3) SA 240
(CC), at 247C
[10]
(1998) 19 ILJ 1441
(LAC)
[11]
Chauke
,
supra
,
at 1447 A – B
[12]
Chauke
,
supra
,
at 1447B – D
[13]
(1994) 15 ILJ 1057
(LAC)
[14]
FAWU v ABI
,
supra
,
at 1063B
[15]
Chauke, supra,
at 1447 H – I
[16]
(2010) 31 ILJ 1787
(LAC)
[17]
Foschini Group
,
supra
,
at 1800A
[18]
True Blue Foods
(Pty) Ltd t/a Kentucky Fried Chicken v Commission for Conciliation,
Mediation and Arbitration and others
(2015)
36 ILJ 1375 LC at 1382H – 1383E
[19]
True Blue Foods
(Pty) Ltd t/a Kentucky Fried Chicken v Commission for Conciliation,
Mediation and Arbitration and others
(2015)
36 ILJ 1375 LC at 1383D – E
[20]
True Blue
,
supra
,
at 1383I
[21]
Sidumo and
another v Rustenburg Platinum Mines Limited and others
2008 (2) SA 24 (CC)
[22]
Gold Fields
Mining SA (Pty) Limited (Kloof Gold Mining) v Commission for
Conciliation, Mediation and Arbitration and others
(2014) 35 ILJ 943 (LAC)
[23]
at 949C – D
[24]
at 949F – G
[25]
President of
the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1 (CC)
[26]
S v Ndhlovu
2002 (6) SA 305
(SCA), at 317F – 319G;
Giesecke
& Devrient Southern Africa (Pty) Ltd v Minister of Safety &
Security
2012 (2) SA 137 (SCA)
[27]
Public Servants
Association of SA on behalf of Khan v Tsabadi NO & others
(2012) 33 ILJ 2117 (LC), at 2123B – C