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[2015] ZALCJHB 310
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EOH Abantu (Pty) Ltd t/a Highveld PFS (Pty) Ltd v CCMA and Others (JR2814/12) [2015] ZALCJHB 310 (19 August 2015)
REPUBLIC OF SOUTH
AFRICA
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 2814/12
In the matter
between:
EOH ABANTU (PTY) LTD
T/A HIGHVELD PFS (PTY) LTD
APPLICANT
and
CCMA
FIRST RESPONDENT
NELSON
LEDWABA
SECOND RESPONDENT
ABRAM
JACOB
KNOX
THIRD RESPONDENT
Heard:
29 JANUARY 2015
Delivered
:
19 August 2015
JUDGMENT
Whitcher
J
Introduction
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent, to whom I shall refer as
‘the
commissioner’. In his award, the
commissioner held that
the
dismissal of Mr. Knox by the applicant was substantively unfair. The
commissioner awarded compensation to Knox in an amount
of
R270 000.00. This amount is equivalent to six months’
compensation.
[2]
Knox was employed by the applicant, a labour broker, in September
2009 to render services as a mine manager to the applicant’s
client, Gravmax at its Letshaba Crushers site (“the mine”).
He was also responsible for approving and verifying timesheets
for
all workers at the mine.
[3]
In January 2011, Shane Boswell was contracted to do blasting and
drilling for Gravmax at the mine. He worked with a team of
workers.
In February, Boswell, trading as Rock Breaking Technologies, also
accepted a contract to do blasting and drilling for
another company,
Dewcon, at its Dan Village site. He used the services of some of the
workers he used at the Letshaba site. The
Dewcon project consisted of
two phases. The first phase was from February to March 2011. The
second phase ran from May to July
2011.
[4]
Knox was charged with “gross negligence in the execution of
your duties as mine manager of Letshaba Crushers in that you
were
involved and/or participated in unauthorised drilling and blasting at
Dan Village during April to July 2011, unauthorised
use of Gravmax’s
property and labour to perform such operations and acting in conflict
of interest in participating in such
operation for your own personal
gain”. He was found guilty and dismissed on 17 October 2011.
[5]
The applicant called two witnesses during the arbitration
proceedings, Mr Danie Louw and Mr David Roux. Knox called Boswell
as
a supporting witness.
[6]
The commissioner accepted the version of Knox and Boswell and in
essence made the findings set out below.
[7]
Mr Johan Van Niekerk, a director of Letshaba Crushders, gave
permission to Boswell to continue with the Dewcon contract,
particularly
because there was uncertainty regarding the duration of
the Gravmax contract. There were talks about Gravmax moving to
Rustenburg.
[8]
In any event, as an independent contractor, Boswell was free to
accept other contracts. Documentary evidence confirmed that
Boswell
and his team of workers were not employees of Gravmax, Letshaba or
the applicant. They were not entitled to any form of
payment when
they did not physically work at the mine, including days when the
mine was closed for a period of time and not subject
to statutory
deductions, such as UIF and PAYE. Boswell further used his own
equipment to execute his duties at Letshaba Crushers,
excluding
compressors and rock drilling equipment.
[9]
Knox did assist Boswell with the Dewcon project, but only during the
first phase. Armand Pienaar was contracted by Boswell during
the
second phase to assist him. Knox’s assistance was of an
administrative nature for which he did not receive any financial
benefit. Boswell was however supposed to pay Knox’s bank
charges.
[10]
Knox’s assistance entailed receiving money into his personal
bank account on behalf of Boswell, electronic payments to
Boswell’s
creditors, the drafting of invoices and requesting quotes from Maxam
Dantex, a company that supplies explosives,
processing payments to
creditors and others, including workers who had assisted Boswell.
[11]
He assisted Boswell because Boswell did not have access to a computer
and internet and was computer illiterate. He had similarly
assisted
Gravmax with payments. It was the practice of Knox to make payments
from his own banking account to an explosive provider,
Maxam Dantex
on behalf of Gravmax because he and the explosive company shared the
same bank and the transfer of money was immediate
and goods were
delivered on proof of payment. Gravmax would later reimburse Knox for
the payments made.
[12]
The applicant’s witness agreed that what Knox did for Boswell
would not have taken up substantial time and the applicant
had no
published rule or zero tolerance policy regarding the use of its
computers and internet for private use.
[13]
Knox had no permission from the applicant or its client to assist
Boswell.
[14]
With regards to the alleged use of Gravmax’s labour, Boswell
and his team were not employees of Gravmax. Further, the
applicant
failed to prove that Knox had approved time sheets, and thus payment
from Gravmax, for Boswell and his workers when they
were instead
working on the Dewcon contract.
[15]
Boswell had used a compressor used by Gravmax on Dewcon project but
had hired it from the suppliers during the three week period
when the
mine at Letshaba was closed. Boswell did once use a vehicle of
Gravmax to attend Dewcon, but when he found out he reprimanded
Boswell for doing so.
[16]
Knox did send an invoice of R485.57 for explosives intended for
payment by Rock Breaking Technologies to Gravmax for payment.
Gravmax
paid the invoice and only discovered the true position when Louw had
queried the payment with the explosives company. He
sent the invoice
to Gravmax in error, the only error made while doing similar
administrative tasks for both Gravmax and Boswell.
[17]
Knox’s position at Gravmax was advertised on the internet on 30
May 2011, approximately 5 months prior to the disciplinary
hearing
and his dismissal which inferred the applicant and its client sought
to rid themselves of his services long before his
dismissal.
[18]
The commissioner found that the applicant had failed to prove the
charges proferred against Knox and that, if Knox had committed
misconduct, it was his minimal use of Gravmax’s computer and
time to assist Boswell with administrative matters.
[19]
The commissioner reasoned that the nature of this misconduct did not
warrant dismissal having regard to the fact that there
was no prove
that it was to the detriment of Gravmax and Knox’s advanced age
at the time of the dismissal.
Grounds
of review
[20]
The applicant contended that the commissioner “misdirected
himself” in various ways and did not make a reasonable
decision.
[21]
The commissioner did not admit hearsay evidence from the applicant’s
witness, Louw, that Van Niekerk told him that he
had not authorised
the Dewcon project. The applicant contended that that this was a
material misdirection because the applicant
had a good reason for not
bringing Van Niekerk as a witness: he was in jail at the time of the
arbitration, and if the commissioner
had accepted such evidence it
would follow that the rest of Knox and Boswell’s testimony was
untruthful.
[22]
There are a number of problems with this contention. There is nothing
in section 138 of the LRA which obliges a commissioner
to admit
hearsay evidence merely on the basis that a witness is unavailable
and in the context of a review it is not sufficient
to merely rely on
this ground to claim a reviewable irregularity.
[23]
In any event, for hearsay evidence to be admitted and given weight,
particularly hearsay evidence of a subjective nature as
in this case,
it must be shown to be reliable. The applicant has not averred or
established such.
[24]
Even if the commissioner had admitted the evidence and given it
weight, there is no rule that the mere fact that a witness
is found
to be untruthful in one respect means that the witness’s
evidence as a whole automatically stands to be rejected.
Concluding
which version is more or less probable depends on the totality of the
evidence and this conclusion must account for
all of it.
[25]
The case did not turn on this issue. The applicant still had an
opportunity to address the fairness of his dismissal by establishing
the other allegations against Knox, which the commissioner found it
did not. Further, the commissioner was alive to the fact that
Knox
did not have permission to assist Boswell, even if Boswell was
entitled to take on other contracts.
[26]
The commissioner should have found that Knox was supposed to call Van
Niekerk as a witness since it was his claim and defence
that Van
Niekerk sanctioned the Dewcon contract. This complaint is also
dismissed. There is no rule that a version may only be
accepted if it
is corroborated. In any event, the case against Knox did not turn on
this issue. It was common cause that he did
not have permission to
assist Boswell, even if Boswell was entitled to take on other
contracts. The commissioner was alive to this
fact.
[27]
The commissioner also refused to admit a written statement by Pienaar
in the place of the applicant calling him as a witness.
There is no
merit in this ground of review. No reason was submitted at the
arbitration for the applicant’s failure to call
Pienaar as a
witness and the applicant has failed to why the commissioner’s
conduct amounts to a reviewable error.
[28]
The commissioner did not take cognizance of the contradiction in the
versions of Knox and Boswell regarding whether Boswell
had in fact
paid Knox’s ban charges. This is a distortion of the award. The
commissioner specifically dealt with this issue
and found the
contradiction was not material. He further held that, either way, the
payment would not have constituted personal
benefit on the part of
Knox.
[29]
The commissioner ignored Knox’s admission that he made payments
to workers on behalf of Rock Breaking Technologies. The
commissioner
dealt with this issue when he found that Knox had indeed assisted
Boswell in his business.
[30]
The commissioner never made a finding as to whether Knox was
correctly convicted on the charges. The various stated conclusions
in
the award clearly indicates that the commissioner did so, even if he
did not spell it out.
[31]
The commissioner ignored documents submitted by the applicant. This
is another distortion of the award. In the award, the commissioner
regularly refers to the bundles of documents in his award, wherefore
it is clear that he considered the evidence as pertained in
the
bundles.
[32]
The commissioner did not make a reasonable decision. In my view, the
applicant failed in its review application to demonstrate
that the
arbitrator made material errors of fact or law which impacted on the
outcome.
[33]
It is evident from the award that the arbitrator considered and
applied his mind to the evidence presented, he gave reasons
for
accepting and rejecting certain evidence and he further gave reason
as to why he did not consider dismissal to be appropriate
even if
Knox was guilty of unauthorised assistance of Boswell.
[34]
There is no real demonstration, with reference to the record, that
the conclusion reached by the arbitrator was a conclusion
a
reasonable decision maker
could
not reach considering the
following material that was before him.
Order
[35]
The application is dismissed, with costs.
WHITCHER J
Judge of the L
abour
Court of South Africa
APPEARANCES
For
the Applicants:
Van der Merwe Attorneys
For
the Third Respondent:
Thomas & Swanepoel