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[2015] ZALCJHB 209
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Pothlako Security And Cleaning Services v Commissioner for Conciliation, Mediation And Arbitration and Others (JR2889/12) [2015] ZALCJHB 209 (16 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no:
JR2889/12
DATE: 16 JULY
2015
Not Reportable
POTHLAKO SECURITY
AND CLEANING
SERVICES
...................................................
Applicant
And
COMMISSIONER FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
..........................................................................
First
Respondent
COMMISSIONER
MATOME
SEHUMANE
........................................................
Second
Respondent
BHEKUMUSA
ZWANE
.............................................................................................
Third
Respondent
Heard:
8 July 2015
Delivered:
16 July 2015
JUDGMENT
HULLEY,
AJ
Introduction
[1]
In this matter the applicant, who
previously employed the third respondent, seeks to review and set
aside an award of the second
respondent who found that the dismissal
by the applicant of the third respondent was substantively unfair.
Factual
background
[2]
The record in this matter consisted of the
handwritten notes of the second respondent.
[3]
The applicant called a single witness, Mr
Vusimusi Mavumengwana. The third respondent testified on his
own behalf. The arbitrator
mero motu
called a third witness, Mr Gugulethu Dada.
[4]
Mavumengwana, the applicant’s HR
Manager, testified that the applicant had a contract to provide
security services to the
Ekurhuleni Metropolitan Municipality.
Among the premises of the Municipality which were guarded by the
applicant was the
Dumane Hall. The third respondent was
stationed at this site.
[5]
On 11 September 2012 Mavumengwana received
a complaint from the municipality’s police officials, Messrs
Dada and Ramashaba,
that the applicant had allowed a member of the
community to smoke marijuana in the guardhouse. Mavumengwana
testified that immediately
after receipt of this report he called the
third respondent and issued him with a notice to attend a
disciplinary hearing.
A copy of that notice was handed in at
the disciplinary inquiry. It appears from that document that
the third respondent
was charged with allowing “people from the
community inside the premises and smoke dagga” on 11 September
2012.
[6]
Mavumengwana was cross-examined on the time
when Dada allegedly brought the third respondent to his offices. He
stated that the
third respondent was brought to his office in Benoni
at approximately 08h30 and that he issued the charge sheet at
approximately
09h00.
[7]
Mavumengwana stated that the municipality’s
police officers would record all incidents in the occurrence book
(OB), but was
unable to produce an occurrence book entry for 11
September 2012 which reflected this particular incident. He was asked
to produce
the occurrence book reflecting the previous incident in
which the EMPD had allegedly warned him about similar misconduct; he
was
again unable to do so.
[8]
The third respondent testified that he was
removed from his post at approximately 09h00 on 11 September 2012 by
two members of the
Ekurhuleni Metropolitan Police Department who took
him to the applicant’s Benoni office. He was required to
wait outside
while the two police officers discussed the matter with
Mavumengwana. The police officers then departed and he was
called
into the office and issued with a notice to attend a
disciplinary hearing. According to the third respondent he was
at that
stage under the impression that he had been charged with an
incident that occurred on 10 September 2012. As far as he was
concerned, there was no incident which occurred on 11 September 2012.
[9]
The incident of 10 September 2012
apparently involved an attempt on the part of hawkers and taxi
drivers to gain entry to the premises
of the municipality. When
the security guards prevented them from doing so the dispute became
chaotic. The police had
to be called to restore calm.
[10]
Under cross-examination the third
respondent admitted that he was not at work on 10 September 2012.
With regard to the incident
of 11 September 2012 he stated that he
was with another security officer from Moloi Security Company in the
guardroom when the
two municipal police officers arrived. The
third respondent admitted that Dada had previously confronted him
about his conduct,
but denied that it related to incidents of
allowing community members to smoke dagga on the premises.
According to him it
related to his failure to open and close the
gates.
[11]
The minutes of the disciplinary enquiry
were put to the third respondent and he challenged their accuracy.
He re-asserted
his view that the charge in fact related to the
incident that had occurred on 10 September 2012 rather than an
incident on 11 September
2012.
[12]
Dada testified that an incident between the
security officers, taxi operators and hawkers had occurred on 10
September 2012 which
resulted in chaos at the entrance of the hall.
When he made inquiries he was informed by the municipal officials
that the
third respondent was the cause of the incident which
occurred on 10 September 2012. According to the officials the
third
respondent would allow the taxi drivers and hawkers to enter
the premises and this gave rise to an expectation on their part.
[13]
On 11 September 2012 Dada and a fellow
municipal police officer visited Dumane Hall. There they
encountered the third respondent
and another person in the
guardroom. The second person was smoking marijuana. Dada
and his colleague removed the third
respondent and took him to the
offices of the applicant in Benoni. At the applicant’s
offices the police officials
discussed the matter with the
applicant’s area manager, Mr Nowa Masango, who promised to take
disciplinary action against
the third respondent. Dada testified that
he received a telephone call from the third respondent a week later.
The third
respondent requested him to discuss the matter with the
applicant and apologise on his behalf. He declined to do so.
[14]
Under cross-examination by the third
respondent Dada denied that the person in the guardroom with the
third respondent was a security
officer from Moloi’s Security
Company. He stated that the person was smoking marijuana and
was not dressed in any uniform.
[15]
Dada conceded that he failed to arrest the
second person and that the smoking of marijuana was a criminal
offence. He explained
that this person had dropped the
marijuana cigarette he was smoking. He was not cross-examined
on why this prevented him
from taking action against the person.
Dada accepted that he had not recorded the incident in the occurrence
book.
The arbitration
award
[16]
In his award the arbitrator noted that he
was “confined to determine whether the dismissal of the [third
respondent] was fair
in relation to the charge proffered against him
for allowing community members to smoke dagga in the premises”.
[17]
The arbitrator noted that it was “hard
to believe” the applicant’s version. The version
was riddled with
contradictions and inconsistencies and could not be
accepted. In his view the applicant’s version that the
third respondent
was charged with and eventually dismissed for the
incident that occurred on 11 September 2012 had to be rejected.
The police
officers could not have brought the third respondent to
the applicant’s offices at around 08h30 as testified by
Mavumengwana
and issued with a notice at around 09h00. He
pointed to the notice itself which indicated that the third
respondent signed
for receipt thereof at 13h34 on 11 September 2012.
[18]
The arbitrator pointed out that
Mavumengwana’s evidence contradicted Dada’s evidence he
had removed the third respondent
from his post at approximately
10h50. Mavumengwana’s evidence on this issue, he said,
also contradicted what was contained
in the occurrence book.
[19]
The arbitrator further rejected the
evidence that the third respondent had been warned on several
occasions for similar misconduct
in the past and pointed out that the
applicant had failed to produce the records of the occurrence book or
monthly reports which
outlined these other incidents. He
rejected Dada’s evidence that the third respondent was found in
the guardroom with
another person who was smoking marijuana. The
arbitrator pointed out that if Dada had encountered another person
with marijuana
it would have been his duty to arrest that person and
Dada’s explanation that the person had dropped the marijuana
cigarette
was contradictory.
[20]
In arriving at his conclusion the
arbitrator accepted the version of the third respondent as
corroborated by that of Dada.
He accepted Dada’s version
that, in his (i.e. in Dada’s) view, the blame for the incident
of 10 September 2012 lay
squarely upon the third respondent.
Based upon this he said –
“
it
follows logically that the [third respondent] was removed from the
site by a police officer for the incident of 10 September
2012.
It is clear that the municipal officials and metro police officials
were upset about what happened on 10 September
2012 hence the [third
respondent] was removed from his post on 11 September 2012”.
[21]
He accordingly came to the conclusion that
it was “probably the truth” that the third respondent was
under the impression
that he had been charged with and dismissed for
the incident that occurred on 10 September 2012.
[22]
Against this backdrop the arbitrator
concluded that the applicant had failed to prove on a balance of
probabilities that the dismissal
of the third respondent was
substantively fair. He accordingly ordered the applicant to pay
the third respondent an amount
of R30 000,00 being the
equivalent of 10 months’ remuneration.
Analysis of the
award
[23]
The second respondent’s description
of the applicant’s case as “riddled with contradictions
and inconsistencies”
is exaggerated. It is true that
having regard to the charge sheet and the evidence of Mr Dada, the
version of Mavumengwana
regarding the time when the third respondent
was charged and was brought to the applicant’s offices could
not be correct.
However, I fail to see why this aspect was considered
important at all. The precise time when the third respondent
was removed
from site and subsequently charged was, with respect,
quite irrelevant to the charge itself.
[24]
It
is not unusual for witnesses to contradict themselves either
internally (i.e. with reference to other testimony given in the
same
case) or externally (i.e. with reference to previous statements made
extra-curially or in another case or with regard to a
version put on
their behalf). Inconsistencies and contradictions may arise for
a variety of reasons some innocent and others
less so. Not
every inconsistency or contradiction is to be regarded as proof of a
lie. And even if it is found to be
a lie, what must be
considered is that nature of the lie and its importance to the
crucial issues.
[1]
[25]
In any event, assuming this particular
contradiction to be material, I fail to see on what basis it can be
stated that the version
of the applicant was “riddled”
with contradictions and inconsistencies. The arbitrator himself
provides only
one instance of a contradiction and then a minor one.
At any rate, Mavumengwana’s testimony was largely hearsay.
He relied upon Dada to support his testimony. I do not think
the arbitrator was entitled to
mero motu
call Dada as a witness, but once he did (and in the absence of any
challenge in this Court to him doing so), he had to consider
Dada’s
evidence and not that of Mavumengwana (except perhaps to the extent
that Dada may have provided different versions
to Mavumengwana and
the arbitrator).
[26]
The arbitrator’s rejection of
Mavumengwana’s evidence regarding the previous warnings given
to the third respondent
is based upon a mistaken reading of the
evidence. He found that Mavumengwana was
unable
to produce the occurrence books or monthly reports to support the
previous warnings. But the evidence, as I understood it,
was
that those records were kept by the client, the municipality.
Mavumengwana was not asked whether he was able to produce
those
records, but rather whether he had them.
[27]
I also have some difficulty with the
arbitrator’s view that the third respondent had been dismissed
for the incident which
took place on 10 September 2012 rather than
that which took place on 11 September 2012. The arbitrator’s
view appears
to be that no incident occurred on 11 September 2012 and
that a charge relating to that date was fabricated in order to
justify
the dismissal of the third respondent for the incident which
occurred the previous day. The third respondent does not appear
to have suggested this to the applicant’s witness or to Dada.
What the second respondent put to the applicant’s
witness and
Dada was that he believed that he was charged for the incident of 10
September 2012 because he believed that it was
the applicant’s
case that he was the cause of that incident. He did not suggest
that the applicant fabricated the incident
of 11 September 2012 in
order to justify the true reason.
[28]
It is unclear why the third respondent
believed that he was charged in respect of the incident which
occurred on 10 September 2012.
It is apparent from the charge
sheet that the applicant was charged with an incident which related
to 11 September 2012 and that
it concerned the allegation that he
allowed members of the community to enter the Hall and smoke
marijuana. The incident
which took place on 10 September did
not involve the smoking of marijuana. In any event, the third
respondent had not been
present on 10 September 2012.
[29]
That having been said, the concerns raised
by the arbitrator as to Dada’s evidence are valid. If
Dada had indeed observed
a person smoking marijuana in the
guardhouse, one would have expected him to take measures against that
person immediately. Whether
municipal police officers are empowered
to deal with criminal misconduct generally (as opposed to traffic
offences specifically)
is not important. What is important is that
Dada apparently accepted that he was entitled to take action against
a member of the
community who was engaged in
any
form of criminal activity. His failure in these circumstances
to take such measures calls for an explanation. The one
provided by him does not appear to be cogent. In short, it calls into
question whether Dada had indeed encountered a person smoking
marijuana in the guardhouse.
[30]
Moreover, on Dada’s own version he
had not recorded the incident in the occurrence book. That,
too, calls into question
whether the incident had indeed occurred.
[31]
Despite
the flaws in the arbitrator’s reasoning, my task is not to
determine whether I agree with him or not, but rather to
determine
whether the outcome is one which a reasonable commissioner could have
arrived at.
[2]
In my view it is.
Conclusion
[32]
In the circumstances, I am satisfied that
the application must fail.
[33]
The application is accordingly dismissed
with costs.
Hulley,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On behalf of the
Applicant: Adv. Y. Saloojee
Instructed
by: Sunil Narian Inc.
On
behalf of the Respondent: Mr L. Frahm-Arp (Attorney)
Instructed
by: Fasken Martineau Attorneys
[1]
Schmidt,
Law
of Evidence
,
3-31
[2]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
(2007) 28 ILJ 2405 (CC)