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[2015] ZALCJHB 422
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Metrorail (PRASA) v SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: jR 483 / 13
In the matter between:
METRORAIL (PRASA)
Applicant
and
SATAWU obo J
TSHABALALA
First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second Respondent
DAVID DIBAKWANE
N.O
Third Respondent
Heard
:
30 June 2015
Delivered
:
05 October 2015
Summary:
CCMA arbitration proceedings –
review of proceedings, decisions and awards of commissioners –
test for review –
s 145 of LRA 1995 – determination of
gross irregularities and reasonable outcome.
Misconduct –
establishment of the existence of a rule – rules need not only
be established in writing – tacit
rule established –
arbitrator’s position requiring a written rule a misdirection –
breach of such rule by employee
established
Misconduct – gross negligence
– what constitutes – employee’s misconduct in this
instance constitutes gross
negligence.
Evidence – evaluation thereof
by arbitrator – arbitrator failing to make any credibility
findings of witness testimony
– constituting irregularity –
issue of credibility considered.
Evidence – evaluation and
determination thereof – arbitrator adopting approach of
reasonable doubt – no proper
assessment of probabilities –
approach of arbitrator irregular – proper probabilities
considered.
Dismissal – determination of
fairness of dismissal – dismissal fair in the circumstances.
Review of award – conclusion
of arbitrator irregular and unreasonable – arbitration award
reviewed and set aside –
substituted with award that dismissal
fair.
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This
matter concerns an application by the applicant to review and set
aside an arbitration award of the third respondent in his
capacity as
a commissioner of the CCMA (the second respondent). This application
has been brought in terms of Section 145 of the
Labour Relations
Act
[1]
(‘the LRA’).
[2]
This matter has as its origin the dismissal
of the individual first respondent by the applicant, following
disciplinary proceedings
against the individual first respondent on
three changes of misconduct. The first respondent then pursued
the dismissal of
the individual first respondent as an unfair
dismissal dispute, to the CCMA, and the dispute came before the third
respondent for
arbitration. As it was common cause that the
individual first respondent had been dismissed by the applicant on 28
June 2012, the
third respondent was called upon to decide whether
such dismissal was substantively fair. Procedural fairness was
ultimately
not in dispute in the arbitration. In an award
dated 2 February 2013, the third respondent decided that the
individual
first respondent’s dismissal by the applicant was
substantively unfair, and determined that the individual first
respondent
be reinstated by the applicant with effect from the date
of his dismissal, with 7 months’ back pay. It is this
award
of the third respondent that forms the subject matter of the
review application brought by the applicant.
The
relevant background
[3]
The individual first respondent, whom I
will refer to in this judgment, for purposes of convenience, as
“Tshabalala’,
was employed by the applicant as a ticket
sales agent. Tshabalala commenced employment in February 1996,
and was stationed
and rendering his duties at the Pretoria station.
[4]
The applicant has ticket sales offices at
the various train stations across the country. At these
offices, tickets are sold
to members of the public by ticket sales
agents. Tshabalala, at the time of the events giving rise to
this matter, had been
a ticket sales agent at Pretoria Station for
some four years.
[5]
All cash ticket sales transactions are done
on what is called an ECD machine. The ECD machine is fitted
with an ECD cash box.
When the ECD box is full it must be
removed from the ECD machine and replaced with an empty ECD box.
When the full ECD box
is removed, it must be entered by the employee
removing it on what is termed the ‘security control container
list’,
which I shall refer to in this judgment as the ‘control
list’. Each such box has a unique serial number that is
recorded on the control list, together with the amount contained in
the ECD box.
[6]
Once removed from the ECD machine, the
responsibility is then on the senior ticket agent at the station to
ensure that the ECD box
is kept safe until it is collected by the
applicant’s external Cash-In-Transit (‘CIT’)
contractor, SBV.
This is done by placing the ECD box in a
locked strong room at the station.
[7]
SBV normally arrives at between 08h30 and
10h00 to collect the cash takings at the station, being a
contractually agreed collection
time. SBV arrives with replacement
empty ECD boxes. The SBV personnel open the full ECD boxes with
their key, in the presence
of the applicant’s staff doing the
handover who also have their key, and remove the money bags.
The money bags are
then confirmed against the control list and
against the ECD box number on the control list. These bags are
then all scanned,
and a receipt issued, which is signed by both
parties. The SBV personnel then leave with the full boxes, which is
then taken to
be banked. At the bank, the same verification is
then again conducted when the cash is deposited.
[8]
The events giving rise to the matter
in
casu
took place on 14 February 2012.
Tshabalala was on duty on that day as the senior ticket agent in
charge at the Pretoria station.
Chelsie Rangwaga was the office
administrator on duty, and she was acting as station manager.
Tshabalala was instructed by
Rangwaga to remove ECD box number 03849
from the ECD machine, as it was full. The box contained
R111 540.00. It
was common cause that Tshabalala indeed
removed this ECD box from the ECD machine, at about 14h00 on 14
February 2012.
[9]
What Tshabalala was then supposed to have
done, having removed the ECD box, was to record the ECD box and its
content on the control
list. It was common cause he never did
this. It was also common cause that ECD box number 03849 was
not in any other
way recorded, despite having been removed from the
ECD machine.
[10]
In addition, and having removed the ECD box
from the ECD machine, Tshabalala was supposed to have taken steps to
safeguard the box
until it could be collected by SBV. This, as
said, is done by placing the ECD box in the strong room.
Tshabalala said
that he did place the box in the strong room.
It is added that Tshabalala was the one with the key to the strong
room, which
he kept in the office he shared with Rangwaga.
[11]
SBV then arrived on 15 February 2012 to
collect cash takings. The guards of SBV removed, and signed for
17 bags, which was
verified against the control list. But this
did not include box number 03849, which was not listed nor recorded.
It was then
undisputed that this box could not in any way be
accounted for, and was ultimately lost, causing a direct loss to the
applicant
of R111 540.00.
[12]
There was also some evidence about
suspicious movements of Tshabalala on the afternoon of 14 February
2012, suggesting that he may
have seized on an opportunity to remove
the ECD box and misappropriating it. But Tshabalala was never
charged with misappropriating
the ECD box and its contents.
None of this evidence therefore has any value or relevance, as I will
specifically address
hereunder.
[13]
In the end, and pursuant to all of the
above, the applicant first suspended and then proffered three charges
against Tshabalala.
The first charge was gross misconduct for
failing to record ECD box 03849 on the container control list when he
removed it from
the ECD machine. The second charge was that of
gross negligence in that Tshabalala failed to discharge his
responsibility
as acting senior ticker sales agent to safeguard the
ECD box, having removed it from the ECD machine. The third
charge was
dereliction of duty in failing to ensure that this ECD box
was indeed collected by SBV.
[14]
Following disciplinary proceedings,
Tshabalala was then dismissed on 28 June 2012. As stated above,
this dismissal was pursued
to the CCMA as an unfair dismissal in
terms of the LRA.
[15]
The third respondent, as arbitrator, found
that the dismissal of Tshabalala on 28 June 2015 was substantively
unfair, because, in
short, the third respondent reasoned that
Tshabalala did not know of any rule ne needed to follow with regard
to ECD box 03849,
as this rule did not exist. The third
respondent thus concluded that the misconduct in question had not
been proven by the
applicant. Tshabalala was consequently
reinstated by the third respondent, prompting the current review
application.
The
test for review
[16]
I
will commence the determination of this matter with a few short
comments about the test for review. The premise of the review
test is found in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
where
Navsa AJ held that everyone has the right to administrative action
that is lawful, reasonable and procedurally fair, that
‘
the
reasonableness standard should now suffuse s 145 of the LRA
’
,
and that the threshold test for the reasonableness of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...
’
[3]
[17]
The
aforesaid envisages a
review
test based on a comparison by a review court of the totality of the
evidence that was before the arbitrator and the issues
that the
arbitrator was required to determine, to the outcome the arbitrator
arrived at, in order to ascertain if the outcome the
arbitrator came
to was reasonable.
I
n
Herholdt
v Nedbank Ltd and Another
[4]
the Court
said:
‘…
.
A result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.’
[18]
Therefore,
the
first step in a review enquiry is to consider or determine if an
irregularity exists in the arbitration award or the arbitration
proceedings, and this is done by considering the evidence before the
arbitrator as a whole, as gathered from the review record,
and
comparing this to the reasoning of the arbitrator as reflected in
such award. The review court must also at this stage apply
all the
relevant principles of law which may be applicable in the particular
case. But this is only the first part of the
review enquiry.
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[5]
the Court
said:
‘…
.
in
a case such as the present, where a gross irregularity in the
proceedings is alleged, the enquiry is not confined to whether
the
arbitrator misconceived the nature of the proceedings, but extends to
whether the result was unreasonable, or put another way,
whether the
decision that the arbitrator arrived at is one that falls in a band
of decisions a reasonable decision maker could
come to on the
available material’
[19]
This
means that the review enquiry has a second part, which entails a
determination, based on all the evidence before the arbitrator,
whether the outcome the arbitrator arrived at can nonetheless be
sustained as a reasonable, even if it may be for different reasons
or
on different grounds.
[6]
In
Head
of the Department of Education v Mofokeng and Others
[7]
the Court
said:
‘…
.
The
court must nonetheless still consider whether, apart from the flawed
reasons of or any irregularity by the arbitrator, the result
could be
reasonably reached in light of the issues and the evidence.
Moreover, judges of the Labour Court should keep in
mind that it is
not only the reasonableness of the outcome which is subject to
scrutiny. As the SCA held in
Herholdt
,
the arbitrator must not misconceive the inquiry or undertake the
inquiry in a misconceived manner. There must be a fair trial
of the
issues.’
[20]
In the end, it would only be if the outcome
arrived at by the arbitrator cannot be sustained on any grounds, and
the irregularity
concerned is the only basis to substantiate the
outcome the arbitrator arrived at, that the review application can
succeed.
The simple reason why this would be the case is that
the irregularity directly affected the outcome, and thus prevented a
fair
trial of the issues.
[21]
Against the above principles and test, I
will now proceed to consider the applicant’s application to
review and set aside
the award of the third respondent.
Analysis
[22]
I will now commence determining this matter
by first identifying the applicant’s grounds of review.
These grounds of
review must established in the founding affidavit,
and the supplementary affidavit in terms of Rule 7A(8). In
summary, these
pleadings rely on the following grounds of review:
22.1
The third respondent misdirected himself in finding that no rule
existed, because the third respondent assumed
that only a written
rule could constitute a rule, without considering what was undeniable
common practice even if there was no
written rule;
22.2
The third respondent unreasonably accepted that Tshabalala was not
properly trained in the execution of his
duties, considering
Tshabalala had five years’ experience as ticket sales agent;
22.3
The third respondent misconstrued the real issue he was called on to
determine, when he sought to equate
the charges to that relating to
the misappropriation of the lost ECD box by Tshabalala, in
circumstances where Tshababala was never
charged with
misappropriation but in essence with gross negligence with regard to
the manner in which he handled the ECD box;
22.4
The third respondent ignored pertinent evidence, such as the
suspicious conduct of Tshabalala on the day,
the evidence about how
the ECD boxes are handled, and how Tshabalala thus failed when it
came to the ECD box in question.
According to the applicant, a
proper consideration of the evidence as a whole can only have as a
reasonable outcome that Tshabalala
indeed committed the misconduct
concerned.
I
will decide this review application based only on these grounds of
review.
[23]
Something
must however be said, from the outset, as to the manner in which the
third respondent dealt with and determined the testimony
of the
witnesses that testified before him. What is conspicuously
absent from the award of the third respondent is any credibility
assessment and finding. As will be more fully dealt with
hereunder, and especially on the issue as to whether a rule indeed
existed which is based solely on testimony, a proper credibility
assessment was essential
[8]
.
As was said in
Sasol
Mining
(
Pty
)
Ltd
v Ngqeleni NO and others
[9]
:
‘
One
of the commissioner's prime functions was to ascertain the truth as
to the conflicting versions before him. The commissioner
was obliged
at least to make some attempt to assess the credibility of each of
the witnesses and to make some observation on their
demeanour. He
ought also to have considered the prospects of any partiality,
prejudice or self-interest on their part, and determined
the credit
to be given to the testimony of each witness by reason of its
inherent probability or improbability. He ought then to
have
considered the probability or improbability of each party's version.
The commissioner manifestly failed to resolve the factual
dispute
before him on this basis. ….’
The
third respondent
in casu
did have some regard to probabilities, but made no attempt to assess
and decide credibility. This is a gross irregularity
where it
comes to the proper determination of the evidence.
[24]
Having regard to the issue of credibility,
the applicant led the testimony Chelsie Rangwaga and Sandiwe
Mosandiwa, I
have considered both of these witnesses’
testimony as a whole, and as reflected in the transcript, and in
general consider
them to have been credible witnesses. They
remained consistent in their evidence, did not contradict themselves,
and made
concessions where necessary, such as conceding that the cash
handling procedure documents did not refer to ECD boxes and that
anyone
can do the cash handover to the SBV personnel on collection.
Their evidence should have been accepted by the third respondent
as
credible, and reliable.
[25]
The applicant also led the testimony of the
area manager, Phillemon Soko. I must point out that from page
140 to 173 of the
transcript, what is reflected as examination in
chief of Soko by the applicant’s representative (Masilela) in
the arbitration,
is actually cross examination by Tshabalala’s
representative, Mlambo. Overall, I was impressed with Soko’s
testimony.
He held up under vigorous cross examination, which
on several occasions became bogged down in completely irrelevant
considerations.
This kind of irrelevant cross examination
assists no one in arriving at the truth of a matter. In the
end, Soko properly
answered all relevant questions put to him.
He remained adamant in denying any flaws in the ECD system. But
he was
willing to make concessions, examples of which were that
anyone could do the handover to SBV, the signature of the visitors
register
was only by only one guard, and that there was no written
ECD policy. His evidence should also have been accepted as
credible
and reliable.
[26]
The applicant also called Hazel Matenchi,
the guard from SBV that did the collection on 15 February 2012, as a
witness. His
testimony was uncontroversial, and largely
unchallenged. The only person inexplicably confused by his
testimony was the third
respondent. There was no reason not to
have accepted his evidence. Similarly, the testimony of the
next witness for
the applicant, Johanna Mabena, simply confirmed the
SBV handover procedure and time, which was not really contested.
[27]
Turning then to the testimony of
Tshabalala, I consider it, in general terms, to be evasive,
self-serving and contradictory.
A pertinent example of the
contradictory nature of his evidence is where he twice says he
disagrees with the term of him being
a senior ticket sales agent, but
in the same breath says he was working as a senior ticket sales agent
on 14 February 2012.
Despite conceding what he was working as,
he maintains he was not acting as a senior sales agent because there
were no documents
to say this. This kind of approach permeates
his evidence. He says that he needed to be specifically
instructed by
Rangwaga to record the ECD box on the control list, and
when confronted under cross examination that he had done this on
several
occasions before without instruction, evaded answering the
question. Further, and despite it being undisputed, Tshabalala
does not even agree that the amount in the missing ECD box, is
missing. He also says he placed the ECD box in the strong
room,
but then, and in my view clearly to water down the implications of
this to his case, adds that he placed the box ‘where
similar
boxes are placed’ and left it there. He even later on
testifies there is no safe place where ECD boxes are
kept. But
perhaps the best example of the unacceptable nature of Tshabalala’s
evidence can be found where Masilela
(the applicant’s
arbitration representative) asks him ‘Is it true that the ECD
box had money inside it’ and he
answers ‘I cannot say it
contained money inside because I have not seen the money’.
But then he concedes there
is money in the ECD box. The testimony of
Tshabalala also contains a material contradiction, which related to
why he was instructed
to remove the ECD box. In giving evidence
in chief, he says he was told to remove it because it was full.
Under cross
examination, he says he was told to remove it because it
was dysfunctional, which I may add was never put to Rangwaga under
cross
examination. Tshabalala’s evidence
should not be accepted as credible and reliable, and should be
rejected
where it is in conflict with the evidence of the applicant’s
witnesses.
[28]
Therefore,
and considering what I have said above, had the third respondent done
a proper credibility assessment, and dealt with
the testimony of
witnesses on the basis as discussed above, the outcome in this matter
may well have been different.
As
the Court said in
Sasol
Mining
:
[10]
‘…
.
That failure, and the fact that the award clearly may have been
different had the commissioner properly acquitted himself,
renders
the award reviewable on account of a gross irregularity committed by
the commissioner in the conduct of the arbitration
proceedings.’
[29]
I
dealt with a comparable situation in
Blitz
Printers
v Commission for Conciliation, Mediation and Arbitration and
Others
[11]
and said the
following in finding the award of the arbitrator to be reviewable:
‘…
.
The
second respondent, had he discharged his duties properly, was
compelled to determine this conflicting evidence and thus decide
what
evidence to accept, and what to reject. The second respondent had to
assess credibility and probabilities and come to a proper
and
reasoned finding as to what evidence to accept. The second respondent
did none of this ….’
[30]
I will now move on to answering the
question whether or not a rule existed to the effect that where a
ticket sales agent removes
a box from the ECD machine, that box
removed must be recorded on the control list. In this instance,
it was undisputed evidence
that Tshabalala indeed removed ECD box
03849 from the ECD machine and never recorded it on the control
list. Tshabalala’s
case was he was not obliged to do
this, and the third respondent agreed with him, which, considering
that the evidence of Rangwaga,
Mosandiwa and Soko is to be preferred,
is already an irregularity.
[31]
The third respondent’s decision that
the rule did not exist and thus that there was no obligation on
Tshabalala to have recorded
the ECD box on the control list is based
on the third respondent’s version of a probability assessment.
These probabilities
referred to by the third respondent were: (1) the
applicant could not produce a written document reflecting such a
rule; (2) the
applicant could not prove that Tshabalala was trained
in the execution of his duties; and (3) the applicant had no policy
about
how ECD boxes should be handled. It is clear that the
testimony of Rangwaga, Mosandiwa and Soko as to the existence of a
rule and what that rule prescribed was never considered by the third
respondent.
[32]
But at least the third respondent
appreciated that central to deciding whether Tshabalala committed
misconduct, was whether he was
obliged to record the ECD box on the
control list when removing it from the ECD machine. This is
certainly a critical consideration,
for the simple reason that if
Tshabalala was so obliged, he failed in the proper execution of his
duties in not doing so and would
need to provide a proper and
justified explanation for such failure. In this matter, and
because Tshabalala disputed the
obligation
per
se
, there was no explanation for
failure. Therefore, and in my view, should it be accepted that
if there was indeed such an
obligation on Tshabalala, he would be
grossly negligent in not discharging it.
[33]
Tied to the issue as to whether the rule
existed, the third respondent, as a further consideration, adopted
the view that in effect,
anything could have happened to ECD box
03849, even if it was recorded by Tshabalala on the control list.
The third respondent
gave a number of reasons for this view.
The first reason was that Tshabalala was not the only person who
handled the ECD
boxes on 14 February 2012. The second reason
was that because both SBV guards did not sign the visitors register,
and there
was an issue with the time recorded on the scanner, it was
unclear how many other persons may have entered the strong room where
the ECD box was kept. The third reason was that no one
specifically is entrusted with the handover of the money to SBV. The
final reason was that a PRASA investigation report about the incident
recorded that there were no working cameras in the ticket
sales
office, the ECD boxes were not kept in a ‘strong safe’
once removed from the ECD machine, and the recording of
the ECD box
on the control list does not prevent it being removed. In effect, the
third respondent reasoned that there was an insufficient
nexus
between the loss of the ECD box and any failure by Tshabalala.
I do agree that the third respondent’s approach
in considering
whether there was a sufficient nexus between any failure by
Tshabalala and the loss of the ECD box, is a correct
approach, for
the simple reason that if there is such a sufficient nexus, it would
go a long way towards establishing the existence
of misconduct by
Tshabalala, in respect of both the first and second charges against
him. The question now is whether the
third respondent’s
reasoning, as set out above, is sustainable, which I will now turn
to.
[34]
The point of departure has to be a
consideration whether the third respondent’s conclusion that
Tshabalala was not obliged
to record ECD box 03849 on the control
list when removing it from the ECD machine, for the he reasons gave,
constitutes a gross
irregularity. I unfortunately believe
that it does. I agree with the applicant that the third
respondent became
improperly fixated on the issue of the existence of
a written document prescribing the rule, and thus lost sight of what
was actually
placed before him in evidence. What the third
respondent did was to turn a blind eye to the simple and logical
operational
process in the applicant where it came to ECD boxes,
which had been in existence and which applied for some time, as
confirmed
by proper testimony. There was no need to defer to or
require a written document.
[35]
It is my view that the existence of the
rule was established, in evidence, based on a number of
considerations. Firstly, it
was undisputed evidence, and even
conceded by Tshabalala in testimony, that ECD boxes removed from the
ECD machine must be recorded
on the control list. Considering then
that it was undisputed that Tshabalala was the one who actually
removed the ECD box, this
begs two questions to be answered.
The first is who was supposed to record the box on the control list,
seeing it has to
be done, if not Tshabalala? Must the removed
box just stand around until someone at some point in lime realises it
must be
listed? Surely not. It is a matter of common
sense and logic that the person who removes the box lists it.
This
being the case, Tshabalala needed to indicate who was supposed
to list the box, if not him, which he never did. The second question
is that considering he did it before, why did Tshabalala not record
the box this time? This question was never answered.
[36]
In the end, it was not necessary for a
written policy containing a rule to exist. As Rangwaga said
under cross examination
– ‘
it
is something we do every day ….
’
,
and affirmed under re-examination with specific reference to
Tshabalala – ‘
that
is what he does very day ….
’
.
Rangwaga also testified that Tshabalala was fully aware of all the
procedures in this regard. And finally, Soko, the area
manager,
testified that ‘
I
am saying …. We do not need a policy for the ECD, we need to
issue instructions
’
, and said
on several occasions that the ECD process was an ‘instruction’.
[37]
The third respondent’s fixation on
the issue of a written policy governing ECD boxes tainted his entire
reasoning. He
even went so far as to call on Soko to go and
find, and then produce, such a written policy. When none was
forthcoming when
Soko returned, this was, as far as the third
respondent was concerned, the end of the matter for the applicant.
This approach
effectively negates and excludes all the evidence and
probabilities as discussed above. The third respondent, in
short, had
blinkers on, these blinkers being the existence or a
written policy on the ECD boxes.
[38]
Is
the third respondent however as a matter of law correct in saying
such kind of rules must be in writing, no matter what the evidence
shows? In my view, this cannot be the case. I am
satisfied that such kind of rules can tacitly be established, by way
of conduct or practice. In this regard, the same principles
applicable to tacit terms in any kind of contract can equally
apply
to establish whether rules or policies have tacitly come about by way
of conduct or practice.
In
Wilkins
v Voges
[12]
the Court
said:
‘
A
tacit term, one so self-evident as to go without saying, can be
actual or imputed. It is actual if both parties
thought
about a matter which is pertinent but did not bother to declare their
assent. It is imputed if they would have assented
about such a matter
if only they had thought about it – which they did not do
because they overlooked a present fact or failed
to anticipate a
future one.
Being
unspoken, a tacit term is invariably a matter of inference. It is an
inference as to what both parties must or would have
had in mind. The
inference must be a necessary one: after all, if several conceivable
terms are all equally plausible, none of
them can be said to be
axiomatic. The inference can be drawn from the express terms and from
admissible evidence of surrounding
circumstances. ….
The
practical test for determining what the parties would necessarily
have agreed on the issue in dispute is the celebrated bystander
test.
Since one may assume that the parties to a commercial contract are
intent on concluding a contract which functions efficiently,
a
term
will readily be imported into a contract if it is necessary to ensure
its business efficacy; conversely, it is unlikely that
the parties
would have been unanimous on both the need for and the content of a
term, not expressed, when such a term is not necessary
to render the
contract fully funct
ional.
’
[39]
In
specifically considering the test to be applied to establish the
existence of a tacit term, the Court in
De
Lange v ABSA Makelaars (Edms) Bpk
[13]
said:
‘
The
test for establishing the existence of a tacit term, which this court
has recognized and applied in many cases, is the so-called
'bystander' or 'officious bystander' test. In
City
of Cape Town (CMC Administration) v Bourbon-Leftley & another
NNO
,
Brand JA set out the legal principles governing tacit terms as
follows:
'[19]
... [A] tacit term is based on an inference of what both parties must
or would necessarily have agreed to, but which, for
some reason or
other, remained unexpressed. Like all other inferences, acceptance of
the proposed tacit term is entirely dependent
on the facts. ….
[20]
In deciding whether the suggested term can be inferred, the court
will have regard primarily to the express terms of the contract
and
to the surrounding circumstances under which it was entered into. It
has also been recognised in some cases, however, that
the subsequent
conduct of the parties can be indicative of the presence or
absence of the proposed tacit term ….’
’
The
Court concluded
[14]
with specific reference the often quoted dictum of Scrutton LJ
in
Reigate
v Union Manufacturing Co
[15]
where that learned Judge said that it can certainly be said that a
tacit term:
'….
is necessary in the business sense to give efficacy to the contract;
that is ... it is such a term that you can be confident
that if at
the time the contract was being negotiated someone had said to the
parties: "What will happen in such a case?'
they would have both
replied: "Of course so-and-so. We did not trouble to say that;
it is too clear."
[40]
Of
course, the tacit term must be a necessary one.
[16]
Also, the tacit term must be susceptible to being clearly formulated,
although
the formulation need not be concise.
[17]
As was said in
Commissioner
for the South African Revenue Service v Bosch and Another
[18]
:
‘…
If
a party contends for
a
tacit term it is incumbent on them to formulate that term
so
as to give effect to what they say should be imputed to the
contracting parties ….
’
[41]
The
application of the above principles by the Labour Court, in accepting
that tacit rules, policies or even employment terms exist,
is not
unprecedented. In
Oranjevis
(Pty) Ltd v CCMA and Others
[19]
the issue concerned an obligation on an employee to work night
shift. The Court considered testimony by the employer’s
personnel
manager that during the course of the interviews with the employee,
that employee had been informed that he would have
to work night
shifts in accordance with standard practice in the fishing industry,
and that most of the employees at the factory
were required to work
night shifts. Even though the Court was satisfied that there
actually existed an express term to work
night shift, the Court went
further and said:
[20]
‘…
.
I am also of the view that the second respondent misdirected himself
by failing to consider whether or not an obligation to work
night
shifts had become a tacit term arising from the third respondent’s
conduct subsequent to his commencing employment.
….
’
Having
accepted the existence of a misdirection by the arbitrator, the Court
further said:
[21]
‘…
.
on the evidence presented, it is apparent that the third respondent
at the very least tacitly accepted the obligation to work
night
shifts by his conduct. It was only at a later stage when he was
unable to resolve the issue regarding compensation that he
began to
profess that he had no obligation to work night shifts in terms of
his written contract of employment. ….
’
The
Court concluded:
[22]
‘
In
the final analysis, the second respondent’s conclusion that in
the absence of an express term to work night shifts, the
third
respondent’s “inability for health reasons to work night
shift after 2 August 2001 is therefore not the issue”
is a
failure on his part to properly determine the true nature of the
duties owed by the third respondent to the applicant, and
as such
amounted to a misdirection. Besides concluding mistakenly that there
was no express term, the second respondent neglected
to consider
whether any duty had arisen in terms of a tacit or implied term ….
’
[42]
The
judgment in
Samson
v CCMA and Others
[23]
dealt with a
situation where the issue was the
existence
of a practice in terms of which decisions made by chairpersons of
disciplinary enquiries in that employer, would be reviewed
by the
employer’s corporate affairs department. The employer
presented evidence of such a practice, its application,
and that it
was a common occurrence. It was said the policy was
“well-known’. The Court held:
[24]
‘…
.
The commissioner found that it was practice for the executive
vice-president: corporate affairs to review the disciplinary
decisions
of chairpersons of disciplinary enquiries and that it was
not prohibited by the respondent’s disciplinary procedure.
Given
the evidence before him, and in particular the applicant’s
failure to dispute Killian’s evidence in this regard (the
debate in the arbitration proceedings was more narrowly based on
whether this practice was actually written into the company’s
policies), the commissioner’s conclusion that the evidence
established the existence of a practice to the effect claimed
by the
company cannot be impugned. ….
’
[43]
A
final reference in this regard is to
Harmony
Gold Mining Co Ltd (Target Mine) v National Union of Mineworkers and
Others
[25]
where the Court considered similar factors such as undisputed
evidence, and what was common practice on a day to basis specifically
applied, in accepting the existence of a tacit term of employment.
[44]
Considering the above principles, the
question that the third respondent needed to ask was whether there
existed a practice, which
had become a rule, that the person removing
the ECD box had to record it on the control list, even if this rule
was not written
down. In my view, there can be little doubt, on
the evidence, that there was a rule constituted by practice that the
person
removing the ECD box from the ECD machine has to record it on
the control lost. This is an inference clearly established from
the evidence of the applicant’s witnesses, and what is surely
common and business sense. It is a rule capable
of simple
formulation, being that if you remove the ECD box, record it on the
list and make sure it is locked in the strong room.
I am quite
sure that if Tshabalala or any one of the applicant’s ticket
sales agents were asked, if not for these proceedings,
what they had
to do when they removed the ECD box from the ECD machine, they would
answer that it must be recorded on the control
list and locked in the
strong room. It is an answer, in terms of the above
authorities, that calls for saying: ‘
We
did not trouble to say that; it is too clear ….
’
.
[45]
There was quite some evidence led in the
arbitration about the applicant’s cash handling policies, which
in reality had nothing
to do with the ECD boxes. This happened
because the third respondent made it clear in the arbitration that a
written policy
was an imperative to him. The applicant, and in
particular Soko in his testimony, valiantly tried to panel beat its
discovered
written policies on cash handling, into fitting as
applying to dealing with ECD boxes as well, in my view with little
success.
The simple truth is that it was clear that these policies
have nothing to do with handling ECD boxes. All of this
evidence,
in the end, has little value, and was never necessary, save
for one provision that requires that money bag numbers must also be
written on the control list. In my view, it was undeniable that
there was no written policy or rule dealing with the handling
of the
ECD box
per se
.
But that did not matter to the proper question to be answered.
[46]
In summary, the third respondent’s
conclusion that in the absence of a written rule or policy, there
rested no obligation
on Tshabalala in terms of a rule to record the
ECD box on the control list is not only a gross irregularity, but an
entirely unreasonable
outcome. The only reasonable outcome has
to be that such a rule existed, and Tshabalala had that obligation.
[47]
The third respondent also adopted the
inexplicable approach that Tshabalala needed training in order to
properly fulfil his duties
relating to the ECD boxes. This is
entirely at odds with the real situation. Tshabalala was
working as ticket sales agent
for some four years, and had in fact
formally acted as senior ticket sales agent, on his own version, for
several months and ending
as late as 23 January 2012. In fact,
and when the events in this matter arose, Tshabalala was actually
still fulfilling the
functions of senior ticket sales agent.
What kind of training he thus may have needed is unclear. In
any event, I find
it puzzling to suggest that a person directly
dealing with ECD boxes on a day to day basis for four years, needs to
be trained
to record the ECD box when removing it from a machine on
the control list, and then safely storing it. Finally, Rangwaga
testified that everyone who worked with ECD, including ticket sales
agents, where trained. This evidence was confirmed by
Mosandiwa. Therefore, the reasoning of the third respondent in
this respect is entirely irregular, without foundation, and
unsustainable.
[48]
Accordingly, it is my conclusion that the
finding of the third respondent that there was no rule in existence
that the ECD box had
to be listed on the control list once removed
from the ECD machine, by the person removing it, is unsustainable and
constitutes
a gross irregularity. Further, and considering the
discussion above, the only reasonable outcome in this instance has to
be that Tshabalala, having been instructed to remove the ECD box from
the ECD machine and having done so, knew he had to, and should
have,
recorded the ECD box on the control list. His failure to do so,
on the evidence, and in the absence of any explanation
for not doing
so, constitutes gross negligence.
[49]
The next question then is whether there is
a nexus between ECD box 03849 not being recorded on the control list,
and it ultimately
being lost. The third respondent answered the
question in the negative, finding that anything could have happened
to the
ECD box, for the reasons I have already referred to above.
[50]
Before specifically dealing with this
reasoning of the third respondent, some probabilities require
amplification. On his
own version, Tshabalala placed the ECD
box in the strong room, along with all the other ECD boxes. The
fact that Tshabalala
put the ECD box in the strong room was confirmed
in evidence by Rangwaga. The simple question then must surely
be why would
the only box that is missing from the strong room be the
one not listed? This in itself indicates a nexus between
the
fact that the ECD box was not listed and that it disappeared.
Rangwaga testified that there was only one key for the strong
room
and this was kept by Tshabalala, and when the key was stored, it was
put away in the office she had with Tshalabala.
Simply
put, there was no evidence of anyone else having this key. And
finally, the only person who, on the evidence, could
be shown as
having had actual contact with the missing ECD box was Tshabalala.
All these factors being considered, there
would be a duty on
Tshabalala to provide an explanation as to what could possibly have
happened to the ECD box, but he simply pleaded
ignorance. This counts
heavily against him.
[51]
In
SA
Municipal Workers Union on behalf of Damens v Breede Valley
Municipality and Others
[26]
the Court held that it was not unreasonable for the arbitrator to
expect an explanation from an employee in the case of a dishonesty
charge as to how the same constellation of initials appeared on two
separate documents completed on different occasions.
But
specifically in point is the judgment in
Aluminium
City (Pty) Ltd v Metal and Engineering Industries Bargaining Council
and Others
[27]
,
which concerned a case of the
disappearance
of a pallet from the truck the employee was an assistant on.
The employer sought to hold the employee responsible
for this
disappearance, contending the conduct of the employee in failing to
explain the missing pallet was dishonest. Of
comparison to the
matter now before me, the Court in
Aluminium
City
dealt as follows with the findings of the arbitrator:
[28]
‘
It
is clear that the commissioner did not appreciate this shifting
of onus and gave Khumalo the benefit of the doubt as a result
of
what he termed the 'necessary link' not being established. ….
The
fourth respondent did not give a version as to what happened to the
eighteenth pallet. His defence was a bare denial of any
involvement
in the theft. He could not deny that 18 pallets were on the truck.
His version was only that he saw 17 pallets being
off loaded. In a
case where the employer has established on clear evidence that 18
pallets left the premises on a truck in which
the fourth respondent
was an assistant and one is found to be missing, there is a clear
case of wrongdoing. The employer is entitled
to the explanation from
the employee. The failure to explain or an untruthful explanation
will not discharge the burden resting
on the employee.
’
The
Court concluded:
[29]
‘
The
commissioner failed to appreciate the shifting of onus. Had he
applied his mind properly and assessed the evidence as a whole,
he would have come to the conclusion that Mr Khumalo had to give
an explanation for the disappearance of one pallet. ….’
[52]
I
followed a similar approach in
National
Union of Mineworkers and another v Commission for Conciliation,
Mediation and Arbitration and Others
[30]
and said:
‘…
the
third respondent had at least made out a prima facie case. That meant
that there was a duty on the second applicant to advance
and provide
a reasonable alternative explanation. His failure to do so in my view
counts heavily against him. … ‘
[53]
Turning then to the actual reasoning of the
third respondent, I will firstly deal with the finding of the third
respondent that
Tshabalala was not the only one that handled the ECD
boxes on 14 February 2014. With respect to the third
respondent, that
is the wrong question. The right question was
whether there was any evidence of anyone else handling ECD box
03849.
There was no such evidence. The evidence was that
it was only Tshabalala who handled such ECD box. Even the third
respondent
appears doubtful in his own reasoning, starting his
finding with ‘maybe’ Tshabalala was not the only one
handling the
ECD boxes. The third respondent elevated
speculation and conjecture to a conclusion purportedly based on the
facts.
This is grossly irregular, and there is no substance in
this reasoning.
[54]
The next part of the reasoning of the third
respondent related to the issue of the collection of the money by the
SBV guards on
15 February 2012. In simple terms, the view of
the third respondent was that because one guard did not sign the
visitors
register and there was an issue with the time on the
scanner, anything could have happened to the ECD box. This
reasoning
is simply not rational, or founded on the actual evidence.
It was never in dispute that what was collected by the SBV guards
on
15 February 2012 was exactly what they banked. It was never
suggested the SBV guards took the missing ECD box. In
fact,
these guards recorded all the money bags and boxes they collected in
terms of the prescribed process. ECD box 03849
was not there
when they did the collection. There was no evidence to gainsay
this, as Tshabalala testified that he was not
there when the handover
was done on 15 February 2012.
[55]
It was specifically explained to the third
respondent by Matenchi, the SBV guard that testified, that the
scanner time was wrong.
The third respondent rejects this
explanation because of what he calls ‘insurance purposes’
of SBV, a conclusion he
arrived at of his own accord. The
rejection of this evidence was however entirely irrational
considering direct and uncontradicted
testimony by Matenchi as to the
actual collection time, which was contractually agreed to be in the
mornings (between 08h30 and
10h00), and not the afternoon. Mabena
testified that SBV normally arrives between 09h00 and 09h30.
Even Tshabalala
himself testified as to a collection time between
09h00 and 10h00. All this could only mean the scanner time is
wrong.
Rangwaga also testified that she reported the wrong
scanner time, referring to an example when the scanner time read
23h33, where
the ticket offices actually closes at 21h00. In
addition, the purpose of the scanner, as explained, is to record the
money
bags collected, and issue a receipt. That was indeed done
in this case, and properly so. In the end, the scanner clearly
had the wrong time. But this issue of the incorrect time on the
scanner was simply of no moment, and entirely irrelevant
in deciding
this matter.
[56]
It is true that one of the two SBV guards
did not sign the visitors register. But Matenchi did.
Logically, and
by signing the register, SBV announce their presence
to collect the money bags, which was done. In short, the
register was
indeed completed and signed when the SBV guards did the
collection. What can possibly be the issue with both guards not
signing
it? In any event, the rule relating to the signing of
the visitors register by CIT personnel (SBV) just says the register
must be signed when they attend, and does not say it must be signed
by each and every guard, forming part of the collection team.
How the
third respondent can then elevate one SBV guard not singing the
register (despite his colleague signing) to a conclusion
that anyone
can thus enter into and out of the strong room, is beyond
comprehension. There was no suggestion, in any event,
that
there was anyone else there, at the time, who could have access to
the strong room. There was no evidence of any other
visitors.
But, and even worse still, the undisputed evidence by Matenchi was
that the SBV personnel could only access the
premises with a
pre-approved password, which is verified by the staff at the premises
(who are also given it) before they are allowed
to enter. It is
simply not so that ‘anyone’ can enter. The third
respondent was doing nothing else but
speculating, and in doing so,
ignored the evidence.
[57]
Considered
overall, the third respondent’s approach was tantamount to that
of proof of misconduct beyond reasonable doubt.
That is a
flawed approach. What the third respondent had to decide was
whether the existence of the misconduct was the most
natural,
plausible and logical inference out of a number of possible
inferences. As I said in
National
Union of Mineworkers
[31]
:
‘…
.
In
Minister
of Safety & Security v Jordaan t/a Andre Jordaan Transport
,
it was held that the inference drawn from the evidence just has to be
'the most natural or acceptable inference', and not the
only
inference. In
Bates
& Lloyd Aviation (Pty) Ltd & another v Aviation Insurance Co
it was held as follows:
'The
process of reasoning by inference frequently includes consideration
of various hypotheses which are open on the evidence and
in civil
cases the selection from them, by balancing probabilities, of that
hypothesis
which
seems to be the most natural and plausible (in the sense of
acceptable, credible or suitable
).'
(Emphasis added.)
The
locus
classicus
on this issue is the judgment in
Govan
v Skidmore
where the court held that it was trite law that 'in general, in
finding facts and making inferences in a civil case, the court
may go
upon a mere preponderance of probability, even though its so doing
does not exclude every reasonable doubt, so that
one may, by
balancing probabilities select a conclusion which seems to be the
more natural, or plausible, conclusion from amongst
several
conceivable ones, even though that conclusion be not the only
reasonable one'.
’
In simple terms,
what the third respondent had to do was that as enunciated by the
Court in
Food
and Allied Workers Union and others v Amalgamated
Beverage
Industries Ltd
[32]
,
as follows:
'The
fact that the evidence is consistent with the inference sought to be
drawn does not of course mean that it is necessarily the
correct
inference. A court must select that inference which is the more
plausible or natural one from those that present themselves
(
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982 (2) SA 603
(A))…..’
[58]
I am thus satisfied that on the
probabilities, properly considered on the basis as set out above, the
third respondent’s reasoning
as to why there was no nexus
between the loss of the ECD box, and Tshabalala not listing it, is
unsustainable. I am equally
satisfied that it is justified to
hold Tshabalala accountable for the lost ECD box. After all, he
was the one that removed
it, and having removed it, never recorded
it. He was also responsible to ensure that it was safely stored
until collected,
and he failed in this regard. If he placed it in the
strong room, as he suggested on his own version, then there certainly
was
a duty on him to provide a proper explanation as to what may have
happened to it, which was never forthcoming. This establishes
a
sufficient and proper nexus between the failures of Tshabalala, and
the loss of the ECD box.
[59]
As I
have already touched on above, there was a fair bit of evidence about
the suspicious conduct of Tshabalala on 14 February 2012.
I do
not believe there is any value in this evidence. The only
purpose this evidence could serve is to establish that Tshabalala
was
involved in misappropriating the ECD box, but he was never charged,
nor dismissed, for that. The third respondent was
clearly
influenced by this, being critical of the applicant for not providing
proper evidence in support of an allegation that
Tshabalala ‘took’
the ECD box. However, the third respondent should not have
considered any of this evidence
and should have excluded it from any
consideration, in deciding whether Tshabalala actually committed the
misconduct for he was
charged and then dismissed. In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[33]
the Court
said:
‘
It
is an elementary principle of not only our labour law in this country
but also of labour law in many other countries that the
fairness
or otherwise of the dismissal of an employee must be determined
on the basis of the reasons for dismissal which the
employer gave at
the time of the dismissal. ….
’
Applying
the above
ratio
in
Fidelity
Cash Management
,
the Court in
Rennies
Distribution Services (Pty) Ltd v Bierman NO and Others
[34]
held:
‘…
..
I am of the view that the commissioner's conclusion that it is unfair
to find an employee guilty of dishonesty when he was never
charged
with dishonesty, is not unreasonable …. where an employer does
not charge an employee with dishonesty it cannot
seek to introduce a
new charge or a different charge at the arbitration hearing. ….
There is also clear authority
to the effect that employers cannot
justify a dismissal on grounds other than those which formed part of
the initial decision to
dismiss an employee. ….
’
[60]
Therefore, and as I informed the parties in
Court, I simply do not consider the evidence about the suspicious
conduct of Tshabalala
on 14 February 2012 to be of any relevance in
deciding whether he was grossly negligent in not listing the ECD box
on the container
control list and not properly safeguarding the ECD
box once removed from the ECD machine. The absence of a
misappropriation
or theft charge against Tshabalala destines this
evidence to the scrap heap of irrelevance. I shall therefor pay
no further
regard to this evidence, in deciding whether the
allegations of misconduct against Tshabalala, for which he was
dismissed, have
substance.
[61]
This brings me to the final reason relied
on by the third respondent, being the PRASA report. This report
relates to an investigation
conducted by PRASA as a result of the
loss of the money in this case. In terms of this report,
criticism is dispensed at
the ticket office where Tshabalala was
working, in that the cameras inside the ticket office were not
working, ECD boxes were not
kept safe inside the ticket office as
there was no strong safe to place them in, and writing the ECD box on
the control list does
not prevent a person taking the box. This
report was dealt with in the evidence. Soko testified that he
distanced himself
from this report and it was not correct. Soko
in fact said that the person who made the report should come and
testify as
to his finding. There is other corroboration to the
effect that this report is not correct. Firstly, Rangwaga, who
would know, testified that there were never any cameras in the ticket
office, and these were only installed a month before she testified
at
the arbitration. Secondly, as Rangwaga confirmed, there was a
strong room in which the ECD boxed were locked, even though
it was
not a safe
per se
.
There was in any event never any testimony by anyone who conducted
the PRASA investigation as to what the investigation giving
rise to
the report entailed and how the conclusions therein were arrived at.
This report, in my view, has little value, and
the third respondent
attached undue weight to it, especially considering the actual
testimony presented to him in the arbitration.
[62]
It is thus my conclusion that the third
respondent’s determination that Tsahbalala committed no
misconduct is not only grossly
irregular, but equally not a
reasonable outcome. In my view, the only reasonable outcome in
this matter was that Tshbalala
in fact committed two counts of
misconduct in the form of gross negligence, the first being that he
did not record the ECD box
on the control list when removing it, and
the second being that he did not take reasonable steps to safeguard
it. This created
the opportunity for the ECD box, and with it
some R110 000.00, to be misappropriated, which it was.
[63]
As to the third charge of dereliction of
duty based on Tshabalala not ensuring that there was a handover of
cash to the SBV guards,
the third respondent made no finding,
presumably because he accepted there was no misconduct on the first
two charges which would
in effect dispose of the third charge as
well. Since I hold the view that Tshabalala in fact committed
misconduct with regard
to the first two charges, it is necessary to
shortly deal with the third charge. I do not believe this
charge was proven
by the applicant, because the applicant’s own
evidence was that it is not the duty of Tshabalala to do the handover
of money
to SBV, and when the handover in this instance took place,
it was not done by Tshabalala but by another employee, Maria. I
will therefore not consider this charge any further, and will confine
my further reasoning to the two counts of gross negligence,
being the
misconduct indeed committed by Tshabalala.
[64]
Considering
the issue of a reasonable outcome, the enquiry does not end with
Tshabalala having been found to have committed the
misconduct.
Despite the third respondent not having considered this, obviously
because he found there was no misconduct,
I am now compelled to
consider whether dismissal was an appropriate sanction for the
misconduct. This entails deciding whether
what the applicant
did in dismissing Tshabalala was fair. Navsa AJ in Sidumo said:
[35]
‘…
.
i
n
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given the power to
consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair.
’
In
specifically considering this
dictum
of Navsa AJ, Davis JA in
Wasteman
Group v SA Municipal Workers Union and Others
[36]
said:
‘
These
dicta appear to be indicative of the following: The commissioner is
required to come to an independent decision as to whether
the
employer's decision was fair in the circumstances, these
circumstances being established by the factual matrix confronting
the
commissioner. ….
’
[65]
In
deciding whether the decision to dismiss by the applicant was fair,
the ‘totality of circumstances’ must be considered.
[37]
This
‘totality of circumstances’ include
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 progressive discipline would be
appropriate, the effect of dismissal on the employee, the employee’s
service record,
the
issue of the nature of the misconduct, any breakdown of the trust
relationship, the existence of dishonesty, the existence of
genuine
remorse, the job function and the employer’s disciplinary code
and procedure.
[38]
[66]
The
misconduct
in
casu
is serious, in that it constitutes gross negligence. Gross
negligence means, as said in
Transnet
Ltd t/a Portnet v Owners of the MV Stella Tingas and Another
[39]
:
‘…
.
If a person foresees the risk of harm but acts, or fails to act, in
the unreasonable belief that he or she will be able to avoid
the
danger or that for some other reason it will not eventuate, the
conduct in question may amount to ordinary negligence or it
may
amount to gross negligence (or recklessness in the wide sense)
depending on the circumstances. …. even in the absence
of
conscious risk-taking, conduct may depart so radically from the
standard of the reasonable person as to amount to gross negligence
….
It follows that whether there is conscious risk-taking or not, it is
necessary in each case to determine whether the
deviation from what
is reasonable is so marked as to justify it being condemned as gross
.… It follows, I think, that to
qualify as gross negligence
the conduct in question, although falling short of dolus eventualis,
must involve a departure from
the standard of the reasonable person
to such an extent that it may properly be categorised as extreme; it
must demonstrate, where
there is found to be conscious risk-taking, a
complete obtuseness of mind or, where there is no conscious
risk-taking, a total
failure to take care .…’
In my view, the conduct of Tshabalala
in not listing the ECD box when removing it from the ECD machine, not
taking reasonable steps
to safeguard the box once he removed it, and
not providing any explanation as to what may have happened to the ECD
box where he
was the last one to handle it, shows a obtuseness of
mind and a total failure to take care. It is certainly an
extreme departure
from the norm.
[67]
Gross
negligence is misconduct where dismissal would normally be
justified. In
Nampak
Corrugated Wadeville v Khoza
[40]
the employee party was charged and dismissed for gross negligence in
that he had failed to take proper care of equipment for which
he was
responsible. The Industrial Court found that the employee was
negligent but could not find gross negligence to exist. The
LAC
disagreed with the Industrial Court and held:
‘…
The
probable explanation for his conduct, in these circumstances, is
simply that he deliberately neglected to perform his duties.
Consequently, I do not share the view of the Industrial Court that
the evidence against Khoza was so circumstantial that it could
not be
used to explain his conduct. It was Khoza who had to furnish that
explanation. In the absence of any credible explanation,
the
inference that he deliberately neglected to perform his duty is
irresistible. This finding by the employer cannot be faulted.’
[68]
I consider the same reasoning to be
applicable in the current proceedings, especially in the absence of
any proper explanation by
Tshabalala for not listing the ECD box when
removing it from the machine, and as to what could have happened to
the missing ECD
box.
[69]
Having
regard to the further considerations referred to above, Tshabalala
occupied a position of trust, which he failed in.
[41]
T
he
following
dictum
in
Miyambo
v CCMA and Others
[42]
is also
particularly
apposite,
where
it was held:
‘
It
is appropriate to pause and reflect on the role that trust plays in
the employment relationship. Business risk is predominantly
based on
the trustworthiness of company employees. The accumulation of
individual breaches of trust has significant economic repercussions.
A successful business enterprise operates on the basis of trust...
’
[70]
I
also consider the following factors in concluding that the dismissal
of Tshabalala was justified: (1) there was clear evidence
of a break
down in the trust relationship; (2) he showed no remorse for his
failures; (3) he tried to disingenuously distance himself
from a
clear obligation that rested on him by denying the existence of a
clear rule; and (4) the applicant suffered a significant
loss.
Whilst it is so that Tshabalala has relatively long service and an
unblemished disciplinary record, this cannot detract
from the fact
that he earned his dismissal. The following
dictum
from the judgment in
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[43]
remains a valid consideration
in
casu
,
where the Court said:
‘
This
brings me to remorse. It would in my view be difficult for an
employer to re-employ an employee who has shown no remorse.
Acknowledgment of wrong doing is the first step towards
rehabilitation. In the absence of a re-commitment to the employer's
workplace
values, an employee cannot hope to re-establish the trust
which he himself has broken. ….’
[71]
In summary, I therefore conclude that the
findings of the third respondent that Tshabalala committed no
misconduct because there
did not exist any rule, and that there was
not a sufficient nexus between the conduct of Tshabalala and the loss
of the ECD box,
constitute gross irregularities. Was it
not for the existence of these irregularities, the third respondent
simply
could not have reasonably arrived at the conclusions that he
did. I say this because once these irregularities are taken out
of the equation, then the only reasonable outcome based on the
evidence and relevant legal principle, as a whole, has to be that
Tshabalala was indeed guilty of two counts of gross negligence, and
that the applicant’s decision to dismiss him (based on
a
consideration of the totality of circumstances) was fair. Any
conclusion to the contrary is reviewable.
Conclusion
[72]
Therefore, and based on the reasons set out
above, I conclude that the third respondent’s award cannot be
sustained, and falls
to be reviewed and set aside.
[73]
Having reviewed and set aside the award of
the third respondent, I see no reason to remit this matter back to
the second respondent
again for determination
de
novo
before another arbitrator. As
stated above, the factual matrix in this matter was fully established
by the transcript and documents,
and there is simply no need to go
through the whole exercise of arbitration again. There is simply no
reason why I cannot finally
determine this matter, now, once and for
all.
[74]
I
consider that the misconduct and dismissal dates back to 2012.
Considering the essential requirement of expedition in employment
law
[44]
,
it is unpalatable to have all of this start over and be considered
again, in 2015, if this matter is indeed remitted back to the
second
respondent. I, therefore, intend to substitute the arbitration award
of the third respondent with an award that the individual
first
respondent’s (Tshabalala) dismissal was substantively fair.
[75]
This then only leaves the issue of costs.
In terms of the provisions of section 162(1) and (2) of the LRA, I
have a wide discretion
where it comes to the issue of costs. Even
though
the applicant was successful, I do
not intend to burden the first respondent with a costs order,
especially considering the opportunity
afforded to me to bring this
matter finally to an end.
I accordingly
exercise my discretion as to costs in this matter by making no order
as to costs.
Order
[76]
In the premises, I make the following order:
1.
The applicant’s review application is
granted.
2.
The arbitration award of the third
respondent, being arbitrator David Dibakwane, which is dated 2
February 2013 and issued under
case number GATW 9074 – 12, is
reviewed and set aside.
3.
The arbitration award is substituted and
replaced with an order that the dismissal of the individual first
respondent (J Tshabalala)
was substantively fair.
4.
There is no order as to costs.
_____________________
S.Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Ms D Norton of Mkhabela Huntley Adekeye Inc Attorneys
For
the First Respondent:
Advocate E Mphahelele
Instructed
by:
Dzanibe Qina Sekhabisa Attorneys
[1]
Act 66 of 1995.
[2]
(2007)
28 ILJ 2405 (CC).
[3]
Ibid at para 110.
See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[4]
[2013] 11 BLLR 1074
(SCA)
at
para 25.
[5]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 14.
[6]
See
Fidelity
Cash Management
(
supra
)
at para 102.
[7]
[2015] 1 BLLR 50
(LAC) at para 31.
[8]
In
SFW
Group Ltd and Another v Martell et Cie and Others
2003
(1) SA 11
(SCA) at para 5, the Court said: ‘The technique
generally employed by courts in resolving factual disputes of this
nature
may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must make findings on (a)
the
credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.’
[9]
(2011) 32 ILJ 723 (LC) a
t
para 7.
[10]
(
supra
)
at para 13.
[11]
[2015] JOL 33126
(LC)
at
para 37.
[12]
1994 (3) SA 130 (A) at 136H–137C.
[13]
(2010) 31 ILJ 885 (SCA) at para 21.
[14]
Id
at para 29. See also
Maphango
and others v Aengus Lifestyle Properties (Pty) Ltd
[2011]
3 All SA 535
(SCA) at paras 13, 14 and 17.
[15]
[1918]
1 KB 592 (CA).
[16]
See
Airports
Company South Africa Limited v Airport Bookshops (Pty) Ltd t/a
Exclusive Books
[2015]
3 All SA 561
(GJ) at para 30.
[17]
Plaaskem
(Pty) Ltd v Nippon Africa Chemicals (Pty) Ltd
[2014] 4 All SA 12
(SCA) at para
27.
[18]
[2015] 1 All SA 1
(SCA)
at
para 26.
[19]
[2005] 1 BLLR 62 (LC).
[20]
Id at para
22.
[21]
Id at para
23.
[22]
Id at para
25.
[23]
[2009] 11 BLLR 1119 (LC).
[24]
Id at para
11.
[25]
(2012) 33 ILJ 2609 (LC) at para 28.
[26]
(2014) 35 ILJ 2018 (LC) at para 13.
[27]
(2006) 27 ILJ 2567 (LC).
[28]
Id at paras
21 and 23.
[29]
Id at para
25.
[30]
(2013) 34 ILJ 945 (LC) at para 41.
[31]
(
supra
)
at paras 36 – 37.
[32]
(1994) 15 ILJ 1057 (LAC) at 1064B-D.
[33]
(2008) 29
ILJ
964 (LAC) at para 32. See also
Harding
v Petzetakis Africa (Pty) Ltd
[2012] 4 BLLR 361
(LC) para 67;
Surgical
Innovations (Pty) Limited v Commission for Conciliation, Mediation
and Arbitration and Others
[2014] JOL 32510
(LC) at para 55.
[34]
(2008) 29 ILJ 3021 (LC) at para 15.
[35]
Id at para
79. See also the
dictum
by Ncgobo J at para 178.
[36]
(2012) 33 ILJ 2054 (LAC) at 2057G-I. See also
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others
(2010)
31 ILJ 2475 (LC) at para 19.
[37]
See the dictum of Navsa AJ in Sidumo (
supra
)
at para
78. See also
National
Commissioner of the SA Police Service v Myers and Others
(2012) 33 ILJ 1417 (LAC) at
para
82;
Fidelity
Cash Management Service (supra)
at
para 94
.
[38]
See
Sidumo
(
supra
)
at paras 116 – 117;
Eskom
Holdings Ltd v Fipaza and Others
(2013) 34 ILJ 549 (LAC) at para 54;
Harmony
Gold Mining Co Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2013)
34 ILJ 912 (LC) at para 22;
Trident
SA (Pty) Ltd v Metal and Engineering Industries Bargaining Council
and Others
(2012) 33 ILJ
494 (LC) at para 16;
Taxi-Trucks
Parcel Express (Pty) Ltd v National Bargaining Council for the Road
Freight Industry and Others
(2012) 33 ILJ 2985 (LC) at para 18;
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011)
32 ILJ 1057 (LAC) at para 34;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2011)
32 ILJ 1189 (LC) at paras 26 – 27;
City
of Cape Town v SA Local Government Bargaining Council and Others (2)
(2011) 32 ILJ 1333 (LC) at
paras 27 – 28;
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
(2010)
31 ILJ 901 (LAC) at paras 37 – 38.
[39]
2003 (2) SA 473
(SCA) at
para 7.
[40]
(1999)
20 ILJ 578 (LAC)
at para 35.
[41]
See
Theewaterskloof
(supra)
at para 23
;
Sappi Novoboard (Pty) Ltd v Bolleurs
(1998)
19
ILJ
784 (LAC) at para.7.
[42]
(2010)
31 ILJ 2031
(LAC)
at para 13.
[43]
(2000)
21
ILJ
1051
(LAC)
at
para 25.
[44]
See
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
(2014) 35
ILJ
613 (CC) at para 42;
Aviation
Union of SA and Another v SA Airways (Pty) Ltd and Others
(2011) 32
ILJ
2861
(CC) at para 76.