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[2015] ZALCJHB 309
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Magumbo v Nkomati Joint Venture and Others (JR2257/12) [2015] ZALCJHB 309 (16 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 2257/12
In the matter between:
SIMON MAGUMBO
Applicant
and
NKOMATI JOINT
VENTURE
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
COMMISSIONER DAVIS
MAILA
NO
First Respondent
Second Respondent
Third Respondent
Delivered:
16 September 2015
JUDGMENT
TLHOTLHALEMAJE, AJ
Introduction:
[1]
The
Applicant seeks to have an arbitration award issued by the Third
Respondent (Commissioner) on 3 August 2012 under case number
MP2654-12 reviewed and set aside. In the award, the Commissioner had
found that the dismissal of the Applicant was substantively
and
procedurally fair. The review application is opposed.
Background:
[2]
The
Applicant was employed by the First Respondent (Employer) as a
Financial Accountant with effect from 4 November 2009. His services
were terminated on 20 March 2012 following upon a disciplinary
enquiry held on 13 March 2012 into allegations of misconduct
pertaining
to abuse/misuse of a company vehicle in contravention of
company policies, and not obtaining permission to deviate from the
approved
route.
[3]
The
provisions of the Employer’s Standard Operating Procedure (SOP)
ENG 024 relates to the management of the Mine owned and
hired
vehicles, and provides that employees shall obey and adhere to
traffic regulations at all times; that a Mine or Mine Hired
vehicle
shall not be used for private usage or for personal gain. A further
SOP provides that an employee seeking to use a vehicle
for private
purposes will be required to obtain permission from the relevant HOD.
The arbitration
proceedings:
[4]
Following
his dismissal, the Applicant had then referred a dispute to the
Second Respondent (CCMA), which matter came before the
Commissioner
for arbitration after conciliation attempts had failed. I did not
understand the parties’ case to be that the
evidence as
summarised by the Commissioner was not a true reflection of what
transpired in the arbitration proceedings. The evidence
placed before
the Commissioner by the employer through its Head of Security, Deon
Erasmus was that on 25 January 2012, an anonymous
call was received
wherein it was alleged that a Toyota Double Cab vehicle was seen
being driven at excessive speeds. Erasmus had
then drew up an
exception report from the Netstar Tracing system and discovered that
the vehicle in question was in the care of
the Applicant and had
indeed exceeded the speed limit and deviated from its route during
the weekend of 20-22 January 2012.
[5]
Further
investigations were conducted and it was established that the
Applicant had authority to use the vehicle over the weekend
to travel
from Nkomati Mine (Employer’s premises) to Machadodorp (the
Applicant’s residence) in Mpumalanga Province.
The vehicle
according to the register and Netstar report had left the mine at
16h49 on 20 January 2012. It was recorded to have
been driven at
excessive speed of between 125 km/h and 174 km/h over a period
between 20 and 22 January 2012. The excessive speed
of 174km/h was
recorded at 00h18 on the Saturday of 21 January 2012 and again at
04h41 on the Sunday of 22 January 2012.
[6]
Erasmus
evidence was that from the speed violation report it was apparent
that the vehicle was used over the weekend beyond the
normal accepted
route between Nkomati Mine and Machadodorp, and was also used in
Middleburg, which was a deviation from the route.
According to
Erasmus, employees using company vehicles were expected to adhere to
the national speed limit of 120km/h, which was
also a policy of the
Employer.
[7]
When
Erasmus confronted the Applicant, the latter had conceded that he was
indeed the sole driver of the vehicle over the period
in question. He
had admitted exceeding the speed limit, and had deviated from the
route and went to Middleburg. The Applicant had
also admitted that
during that period he never drove to the Employer’s premises.
Erasmus’ contention was that the Applicant
had no authority to
deviate from his route.
[8]
Derrick
Van Niekerk’s testimony on behalf of the Employer was that the
vehicle was issued to the Applicant for his use in
order to finalise
his work outside of working hours over the weekend. The agreement
when the vehicle was issued was that the Applicant
would use it to
travel between his place of residence and the Mine. The Applicant had
not over the weekend used the vehicle to
travel to the Mine to do his
work. He had instead used it for other purposes and in the process,
accumulated 375 kilometres over
that weekend. He had done so without
seeking the necessary permission from the Employer.
[9]
The
Applicant’s testimony before the Commissioner was that he had
sought permission to use a company vehicle over the weekend
in
question as he needed to finalise financial reports before Monday. He
had worked until late, and on his way home to Machadadorp
he had
stopped at another place to buy food. His contention was that he had
permission to use the vehicle within the Machadodorp
area. He had
conceded having exceeded the speed limits at some point, but had done
so when he was overtaking other vehicles. He
had further conceded
having gone to Anford Country Estate, but had contended that he had
gone there as it was a quite area to go
to and do his work and to
have his meals.
[10]
The
Applicant had denied having deviated from the route, or driving the
vehicle over the speed limit in a sustained manner. He had
also
denied having used the vehicle for private purposes, and contended
that if he had deviated from the route, at most he should
have been
issued with a final written warning. He had disputed that he had
accumulated kilometres in excess of 300 km over the
weekend, and
contended that it was instead 296 km, as a result of traveling
between his place of residence and the Mine. He had
further stated
that the distance between his residence and the Mine was 70
kilometres a single trip.
The award:
[11]
In
regards to the substantive fairness of the dismissal, the
Commissioner accepted as common cause that the Applicant had work to
finish over the weekend and was granted permission to use a company
vehicle, but only for work related purposes. In this regard,
the
Applicant was to use the vehicle for travelling between his place of
residence and the Mine, and it was expected of him to
seek permission
if for whatever reason he sought to deviate from that route. The
Commissioner had accepted that the distance between
the Applicant’s
residence and the mine was 56 and not 70 kilometres as he had
alleged, and further that at no stage during
the weekend in question
did he travel to the Mine. The Applicant had also conceded to having
gone to Anford, which was some 15
kilometres from Machadodorp.
[12]
The
Commissioner also took into account that the Applicant drove at
excessive speeds of up to 174 kilometres in the early hours
of the
morning towards Middleburg, and had travelled a total of 240
kilometres between Friday and Monday. The Commissioner further
found
that there was 128 kilometres unaccounted for if regard was had to
the distance between the Applicant’s residence and
the Mine,
and came to the conclusion that the Applicant misused the company
vehicle by exceeding the speed limit and not obtaining
permission to
deviate from the route.
[13]
The
Commissioner also concluded that the Applicant as a senior employee
and part of management ought to have set an example. In
regards to
the issue of consistency, the Commissioner concluded that the
employer had defended its decision to give final written
warning to
other employees who had committed similar acts of misconduct, and
found that the Applicant had not adduced sufficient
evidence to prove
inconsistency.
The grounds of review:
[14]
It
was submitted on behalf of the Applicant that the Commissioner’s
award was grossly flawed and should be set aside in that
he
disregarded evidence in regards the reason the Applicant went to
Anford Country House and Restaurant that showed that the Applicant
regularly had his meals there; that he failed to consider that on
that particular weekend the Applicant had to work extra hours
because
of the financial reports that were due on Monday; that the
Commissioner should have applied his mind to the fact that the
Applicant chose to work at Anford for a particular reason; and failed
to consider that the Altech Netstar report which was relied
upon by
the employer to substantiate allegations of over-speeding was
inaccurate.
[15]
It
was further submitted that the Applicant had not contravened any
workplace rule as he did not exceed the speed limit and did
not
misuse the company vehicle; that there were several cases which the
employer had treated differently and the employer had not
known that
it had acted consistently in dealing with similar or same
transgressions; and further that the sanction of dismissal
was
inappropriate given the circumstances of the case.
[16]
Submissions
made on behalf of the Employer were to the effect that the
Commissioner’ decision cannot be seen as irregular,
and that
the decision arrived at fell within a band of decisions that a
reasonable decision maker could come to on the available
material. In
this regard, it was submitted that the Applicant had conceded to
breaching the terms and conditions of the SOPs in
that he had sped
(even though this was done whilst overtaking) and had also used the
vehicle whilst travelling on a route which
had not been authorised;
and that the Applicant never disputed the accuracy of the Netstar
technical report when it was presented
by Erasmus that he drove as
fast as 174 kilometres p/h during the weekend in question in the
early hours of the morning.
[17]
It
was further submitted that the rules were consistently applied as
each case according to the evidence presented was treated on
its
merit and the sanction for the offence was informed by the
circumstances of each case. In the Applicant’s case, there
were
aggravating circumstances such as the fact that he drove at high
speeds and breached the employer’s disciplinary code
The test on review:
[18]
The
applicable test in review applications can be said to be well
established. The test is whether the decision reached by the
commissioner is one that a reasonable decision-maker could not have
reached in relation to the material placed before him or her
[1]
.
It has also been held that provided that the arbitrator gave the
parties a full opportunity to state their respective cases at
the
hearing, identified the issue that he or she was required to
arbitrate, understood the nature of the dispute and dealt with
its
substantive merits, the function of the reviewing court is limited to
a determination whether the arbitrator’s decision
is one that
could not be reached by a reasonable decision-maker on the available
material
[2]
.
[19]
The
Labour Appeal Court in
Goldfields
summarized the test by stating that;
“
In short: A review 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 which was reasonable to justify the decision he or
she arrived at”
[3]
Evaluation:
[20]
Section
188 (2) of the LRA requires any person considering whether or not the
reason for dismissal is a fair reason or whether or
not the dismissal
was effected in accordance with a fair procedures to take into
account any relevant code of good practice in
terms of the LRA. In
this regard Item 7 of Schedule 8 – Code of Good Practice:
Dismissal provides that;
‘
Guidelines
in cases of dismissal for misconduct’:
‘
Any person
who is determining whether a dismissal for misconduct is unfair
should consider –
(a)
whether
or not the employee contravened a rule or standard regulating conduct
in, or of relevance to, the workplace; and
(b)
if
a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable
rule or standard;
(ii) the employee was aware, or could
reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been
consistently applied by the employer; and
(iv) dismissal was an appropriate
sanction for the contravention of the rule or standard.’
[21] In this case, and in
applying the
Sidumo
test as elucidated in
Goldfields
,
it should be accepted that the Commissioner afforded the parties a
full opportunity to state their respective cases at the hearing,
identified the issue that he was required to arbitrate, and
understood the nature of the dispute. Central to the Applicant’s
grounds of review is that the Commissioner ignored certain material
evidence, which essentially implies that the Commissioner did
not
deal with the substantive merits of the case and thus the decision
arrived at does not fall within a band of reasonableness.
[22]
Where it is alleged in review proceedings that a Commissioner ignored
certain material, the enquiry is whether indeed this
was the case,
and if so, whether they were material. If it is found that they were
indeed ignored as alleged, and were material,
it follows that the
Commissioner would have come to a different conclusion had he taken
them into account, and therefore the result
arrived at would
prima
facie
be unreasonable
[4]
.
[23] Without necessarily
having made reference to Item 7 of Schedule 8, the Commissioner had
correctly identified the dispute for
determination as to whether the
dismissal of the Applicant was procedurally and substantively fair.
He had regard to the Employer’s
policies allegedly
transgressed. I did not understand the Applicant’s case as
presented before the Commissioner to be that
the rule was not valid
or reasonable rule or standard, or that he was not aware of the rule
or standard applicable to the use of
company vehicle. His main
contention was that he had not contravened the rule, or where there
was any such contravention, the Employer
had not consistently applied
discipline in that regard.
[24] The facts before the
Commissioner are not really in contention. It was common cause that
the Applicant was authorised to use
the vehicle over the weekend as
he had work to complete by Monday. During the course of the weekend,
not once did he travel to
the Mine. Between Friday and Monday when he
returned the vehicle he had according to the Netstar report,
travelled over 300 kilometres
even though the Commissioner accepted
his version that he had travelled 240 kilometres. Evidence further
presented on behalf of
the Employer was that the vehicle was issued
to the Applicant on condition that he would only use it for work
related purposes.
The Commissioner had rejected his version that the
distance between the Applicant’s residence and the Mine is
about 70kms
and that it was instead 56kms. The Commissioner had done
a simple calculation and concluded that since the Applicant had not
travelled
to the Mine during the period he was in possession of the
vehicle, he could not account for an extra 128kms, and to that end he
had misused the vehicle in contravention of the SOPs.
[25] In my view, the
approach and reasoning of the Commissioner is unassailable. All that
the Employer had to show was that the
vehicle was misused over the
weekend, and for other purposes other than intended. The Applicant’s
contention that he had
travelled an extra 13 (or 26) kilometres in
order to go to Anford where he had his meals and did his work did not
justify the mileage
he had covered. It is apparent that he not only
sought to mislead the Commissioner by falsely stating that the
distance between
his residence and the Mine was longer, but also made
a lame attempt in accounting for the extra mileage he had
accumulated, when
it was common cause that he had not at any stage
travelled to the Mine over the period in question.
[26] It therefore follows
from the above that the contention that the Commissioner had failed
to consider the evidence that he had
gone to Anford as he regularly
went there for his meals, and that he could not have therefore
deviated from the route is misplaced.
The mere fact that the travel
to Anford was not dealt with in much detail by the Commissioner does
not imply that it was ignored,
in that it is apparent from the
Commissioner’s reasoning that he took all factors into account
in concluding that the extra
mileage was unaccounted for. The
Commissioner had accepted as conceded that the Applicant had indeed
gone to Anford, which was
some 13kms from his place of residence. The
Applicant’s further contention that he had gone to Anford to
get his meals even
if he had done so four times from Friday to Monday
at any given time did not however explain the extra kilometres that
remained
unaccounted for.
[27]
The Commissioner further concluded that from the Netstar report, the
Applicant had driven the vehicle at excessive speeds between
125 and
174 kilometres per hour. The highest speed was recorded to have taken
place at 00h14 on 21 January 2012 and at 03h41 on
the Sunday of 22
January 2012
[5]
in the direction
of Middleburg. To the extent that the Applicant had not once driven
to the Mine, it can be accepted that even
if he had travelled to
Anford to get his meals, there was no justification to have driven at
such excessive speeds in the early
hours of the morning, simply to
cover an area of 13 kilometres.
[28] The fact that the
Applicant also travelled at such excessive speeds in the early hours
of the morning and not towards the Mine
is indicative that he had
utilised the vehicle for his own private purposes without having
obtained the necessary permission. By
driving at such excessive
speeds, to which he had conceded despite it being contended in his
heads of argument that the Netstar
report was placed in dispute, the
Applicant not only breached the Employer’s SOP in regards to
obeying traffic regulations,
but he had also placed the lives of
other road users and his at risk.
[29] It was therefore not
even necessary for the Commissioner to deal with the reason proffered
for driving at such high speeds
in the early hours of the morning, as
it equally did not make any sense. The national road speed limit is
120km/h, and in accordance
with the Employer’s SOP, all its
vehicles were to be driven in accordance with the traffic
regulations. Even if his version
that he drove at such excessive
speeds in order to overtake was to be believed, this can only be
confirmation that he had been
driving at excessive speeds in any
event.
[30]
The Commissioner’s finding in the light of the argument and
evidence surrounding the alleged inconsistent application
of the
rules is equally unassailable. The approach to allegations of
inconsistent application of discipline is that as enunciated
by the
Labour Appeal Court in
SACCAWU
& Others v Irvin Johnson Limited
[6]
,
where it was held that:
“
It was
argued before us by Mr Grobler for the appellants that by not
dismissing four employees who had also participated in the
demonstration, the respondent applied discipline inconsistently. It
is really the perception of bias inherent in selective discipline
which makes it unfair. Where, however, one is faced with a large
number of offending employees, the best that one can hope for
is
reasonable consistency. Some inconsistency is the price to be paid
for flexibility, which requires the exercise of a discretion
in each
individual case. If a chairperson conscientiously and honestly, but
incorrectly, exercises his or her discretion in a particular
case in
a particular way, it would mean that there was unfairness towards the
other employees. It would mean no more than that
his or her
assessment of gravity of the disciplinary offence was wrong. It
cannot be fair that the other employees profit from
that kind of
wrong decision. In a case of a plurality of dismissals, a wrong
decision can only be unfair it is capricious, or induced
by improper
motives or, worse, by a discriminating management policy.”
[31]
The Applicant relied on several cases in which the Employer had
treated other employees differently in circumstances where
they had
allegedly committed the same or similar transgressions.
In
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
[7]
,
this Court acknowledged the distinction between ‘historical’
and ‘contemporaneous’ inconsistency, and
held that
inconsistency claims more particularly within the context of
similarity of circumstances will fail, where the employer
is able to
differentiate between employees who committed similar transgressions
on the basis of,
inter
alia
,
differences in personal circumstances, the severity of the misconduct
or on the basis of other material factors. Furthermore,
a claim of
inconsistency will fail unless it can be shown that the conduct of
the employer in treating employees differently was
capricious or
arbitrary.
[32] The Commissioner’s
reasoning in finding against the argument of inconsistent application
of discipline was that the Applicant
had not adduced sufficient
evidence in that regard, and it was not sufficient for the Applicant
to merely allege names of other
offenders and the penalties meted out
to them without presenting a full record of the hearings which
resulted in those employees
receiving lesser sanctions. Essentially
the Commissioner’s reasoning was that in the absence of the
full merits of other
cases, there was nothing that could persuade him
that the Employer had acted inconsistently. This approach cannot be
faulted in
that from the authorities cited above, each case has to be
dealt with on its own merits.
[33]
In alleging that the Employer had acted inconsistently, the
submissions made on behalf of the Applicant were that the employer’s
conduct was grossly irregular and thus constituted unfair
discrimination. I do not intent to deal with these submissions in the
light of the dispute that was required to be determined, save to
point out that in determining whether the employer acted consistently
in the application of discipline, the enquiry is whether there was a
basis for differentiation, or whether the employer’s
conduct
was arbitrary or capricious
[8]
.
[34] The Commissioner
correctly concluded that each case had to be dealt with on its own
merits. In this case, it had been concluded
by the Commissioner that
the Applicant had breached the Employer’s SOPs in circumstances
where he could not justify his conduct.
As correctly pointed out, he
was a senior employee in a management position and it was expected of
him to set an example. Even
if can be said that he had cooperated
with Erasmus’ investigations and had made certain concessions,
his case before the
Commissioner was that he had done nothing wrong,
and to this end, it cannot be said that he had consistently shown
contrition.
[35]
It is trite that in determining whether the employer had acted fairly
in dismissing an employee, Commissioners should also
consider the
factors outlined in
Sidumo
[9]
.
Other than these factors, where an employee claims inconsistency,
further factors such as the circumstances surrounding the act
of
misconduct committed,
the
position occupied by the employee at the time of the commission of
the misconduct, the nature of the duties he performed and
hierarchy
within the organisation; the severity of the misconduct or its impact
on the employer and its operations, and the consequences
of the
misconduct vis-à-vis the sustainability of the employment
relationship between the employer and the employee.
[36] In the light of the
Applicant’s position, the gross nature of his misconduct and
failure his to appreciate the consequences
of his misconduct, the
Commissioner’s finding that the Employer had not acted
inconsistently or unfairly in dismissing him
cannot be faulted,
especially in circumstances where it had not been shown in what
material respects the Employer’s conduct
was capricious or
arbitrary.
[37] I have further had
regard to the allegations made concerning the procedural fairness of
the dismissal as were placed before
the Commissioner. In this regard,
the sole basis of the allegation was that the Employer took long in
bringing the charges against
the Applicant, and that the chairperson
equally took long in making his verdict. The Applicant had
nevertheless conceded that the
hearing was conducted in line with the
company’s policies and procedures. The Commissioner in my view
arrived at a reasonable
decision in finding that there was no delay
on the part of the Employer in that it was entitled to ample
opportunity to investigate
the allegations against the Applicant. It
was common cause that the incidents that led to the charges took
place between 20 and
22 January 2012. The charges against the
Applicant were finalised in March 202, and this delay cannot by all
accounts constitute
procedural irregularity.
[38]
Having
evaluated the merits of the dispute before the Commissioner, and
further having considered his reasoning in the light of
the dispute
he was required and the material placed before him, I am satisfied
that his decision falls within the band of reasonableness.
In
accordance with the approach in
Goldfields
,
the Commissioner had considered the principal issue before him, had
also evaluated the facts presented at the arbitration proceedings
and
came to a conclusion which was reasonable to justify the decision he
arrived at. There is therefore no basis for the Court
to interfere
with that decision. I have further had regard to considerations of
law and fairness, and I am satisfied that there
is no basis for a
cost order to be made in this case.
Order:
a)
The
application to review and set aside the arbitration award dated 3
August 2012 issued by the Third Respondent under case number
MP2654-12 is dismissed.
b)
There
is no order as to costs.
________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On behalf of the
Applicant:
N Muzah of Muzha Attorneys
On behalf of the
Respondent:
Adv. Snider
Instructed
by:
Cliffe Dekker Hofmeyr Inc
[1]
Sidumo and
another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para [110]
[2]
See
Goldfields
Mining South Africa (Pty) Ltd v CCMA
(2014) 35 ILJ 943 (LAC) at para [20]. See also
South
African Medical Association obo Mabuza and Others v Commissioner
Moletsane and Others
(JR834/12) [2014] ZALCJHB 66 (14 March 2014) at para [8]
[3]
At para [16]
[4]
Head of the
Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC). See also
Shoprite
Checkers v CCMA & others
(unreported Case no: JR2471/13 (Delivered on 31 July 2015)) at
para [10] where it was held that;
“
The
shorthand for all of this is the following: where a commissioner
misdirects him or herself by ignoring material facts, the
award will
be reviewable if the distorting effect of this misdirection was to
render the result of the award unreasonable”
[5]
Record of
proceedings at page 54 lines 10-20
[6]
(1999) ILJ 2303
(LAC) at paragraph [29]
[7]
[2009] 11 BLLR
1128
(LC) at para [10]
[8]
National Union
of Mineworkers, obo Botsane v Anglo Platinum Mine (Rustenburg
Section)
(JA2013/42)
[2014] ZALAC 24
(15 May 2014) at para 25
[9]
At Paras 78 –
79 These include the totality of the circumstances of the matter;
whether what the employer did was fair;
the importance of the rule
that the employee breached; the reason the employer imposed the
sanction of dismissal; the basis of
the employee’s challenge
to the dismissal; the harm caused by the employee’s conduct;
whether additional training
and instruction may result in the
employee not repeating the misconduct; the effect of dismissal
on the employee and the
long service record of the employee.