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[2015] ZALCJHB 360
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Heavy Duty Industrial (HDI) v Commission for Conciliation, Mediation and Arbitration and Others (JR2443/12) [2015] ZALCJHB 360 (20 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR2443/12
In
the matter between:
HEAVY
DUTY INDUSTRIAL (HDI)
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First Respondent
COMMISSIONER
QUEENDY GUNGUBELE
Second
Respondent
VICTOR
MACHININI
Third
Respondent
Heard:
20
August 2015
Delivered:
20
October 2015
Summary:
Review
of CCMA arbitration award – application dismissed as a result
of the outcome of the award being reasonable
JUDGMENT
MYBURGH, AJ
Introduction
[1]
This
is an application in terms of section 145 of the LRA
[1]
to review and set aside an arbitration award issued by the second
respondent (“the commissioner”), in which she
held
that the dismissal of the third respondent (“the employee”)
by the applicant (“the company”) was substantively
unfair
and ordered his reinstatement.
Point
in limine
[2]
A
point
in
limine
raised in the employee’s answering affidavit was pursued at the
outset of the proceedings, it being to the effect that the
signatory
to the notice of motion (and founding affidavit), Mr Mengel, did not
have
locus
standi
to
bring the application. This on account of the fact that he is an
official of an unregistered employers’ organisation, and
thus
does not qualify to act as a representative in this court in terms of
section 161 of the LRA. Mr Mengel was the chairperson
of the
employee’s disciplinary inquiry, and also the company’s
representative at the CCMA arbitration.
[3]
While
there was merit in the point
in
limine
at the time that it was taken, it seems to me that the defect was
cured by way of the company appointing Du Plessis and Kruyshaar
Inc as its attorneys, and them formally coming on record on 20 August
2015 (the day upon which the matter was heard). No doubt,
it would
have been preferable for these attorneys to have delivered a fresh
notice of motion signed by them, but it would, to my
mind, be overly
technical to dispose of the matter on this basis. In the result, the
point
in
limine
is dismissed.
Relevant
background
[4]
The
employee was employed by the company as a driver. At the time of his
dismissal, he had eight years’ service and a clean
disciplinary
record.
[5]
On
25 May 2012, the employee was charged with the following disciplinary
offence:
“
Theft
of material from employer – stock from supplier Matus signed
for – cannot be traced. You collected items from
supplier which
were not received by HDI. These items were: (a) engraver mts; (b)
Somta drill set; (c) Raco impact wrench; (d) Brito
impact extension;
(e) Brito impact socket; (f) Brito impact reducer.”
[6]
On
29 May 2012, and further to a disciplinary inquiry at which he was
found guilty as charged, the employee was dismissed.
[7]
Following
the referral of an unfair dismissal dispute to the CCMA, the
commissioner presided over the arbitration. At the arbitration
only
the substantive fairness of the employee’s dismissal was placed
in dispute – it being his contention that he was
not guilty of
theft. Each party called one witness – Mr Gqoboka (the dispatch
manager) was called by the company, whereupon
the employee gave
evidence in his defence.
[8]
The
commissioner subsequently issued an arbitration award in the terms
described above.
Evidence
at the arbitration
[9]
The
following material facts emerged as common cause at the arbitration:
a)
On
16 February 2012, the company generated a purchase order in favour of
Matus (one of its suppliers) for the purchase of six tools
at a cost
of R3 424.71 (“the purchase order”). The purchase
order, which was sent to Matus, was numbered PO26459.
b)
On
the same day, the employee collected the order from Matus. In the
process, he signed an invoice from Matus reflecting receipt
of the
goods. The invoice reflects the customer order number as being
PO26459, the sales order number as being 5390835, the Matus
sales
representative as being Rowayne, and the Matus checker as being
Mafika (“the first invoice”).
c)
At
the time that the employee collected the aforesaid order, he took
receipt of a duplicate set of goods (of the same description
and
price). In the process, he signed a delivery note from Matus. The
delivery note looks exactly the same as the invoices generated
by
Matus, save that it reads “delivery note” instead of “tax
invoice” in the far right hand corner, and
was referred to in
evidence as an invoice (I do likewise). It reflects the customer
order number as being LPO26459, the sales order
number as being
5390853, the Matus sales representative as being Douglas, and the
Matus checker as being Mafika (“the second
invoice”).
(The differences between the first and second invoices are that, in
respect of the second invoice, the customer
order number starts with
an “L”, the sales order number ends “853”,
and Douglas is reflected as the sales
representative.)
d)
Later
that day, the employee returned to the company’s premises.
According to him, he handed over both sets of goods and both
invoices
to one Lungile, the goods receiving clerk. Lungile’s signature
appears on the second invoice (reflecting that he
had received the
goods), but not on the first invoice.
e)
The
company requires its drivers to keep a log book. In it, the driver
records the kilometres travelled next to the order number
of the
orders that he is assigned to collect, with there also being a column
in which the goods receiving clerk signs for receipt
of the goods at
the company (on a per purchase order basis). The employee’s log
book for 16 February 2012 reflects that
he collected order
number PO26459, with Lungile having signed for receipt of the order.
f)
The
vehicle trip report produced by Altech Netstar reflects the following
relevant information regarding the movement of the employee’s
vehicle on 16 February 2012: (i) at 12h49, he arrived at Matus and
remained on their premises until 13h47; (ii) at 13h47, he left
Matus
and drove to Africa Cell, where he arrived at 13h49; (iii) at 14h07,
he left Africa Cell and drove to Matus, where he arrived
at 14h08;
(iv) at 14h31, he left Matus and drove to Africa Cell, where he
arrived at 14h35; and (v) at 15h17, he left Africa Cell
on route to
Main Reef Gold Mine.
g)
In
about May 2012, and in circumstances where the accounts department
had raised a query about the company paying for the same goods
twice,
the company undertook an investigation. It revealed that the first
and second invoices were effectively duplicates, and
that a second
set of goods could not be traced by the company. The employee was
then charged with theft towards the end of that
month.
[10]
In
his evidence, Mr Gqoboka took the commissioner through the documents
from which the bulk of the common cause facts set out above
have been
drawn. He also mentioned that Africa Cell is not a supplier or
customer of the company. Save for this, Mr Gqoboka did
not purport to
have personal knowledge of the matter.
[11]
The
employee’s evidence was essentially as follows:
a)
He
had collected a number of orders from Matus on the day in question.
b)
He
had gone to Africa Cell as he regularly bought food from a vendor in
the vicinity. The sequence of events was this: he went to
Matus and
then went to Africa Cell with a friend (Sandile) to buy food while
Matus was busy making up the orders; he went back
to Matus to collect
the orders; and he then returned to Africa Cell to collect his friend
who he had left there.
c)
Focussing
on the order in question, he had presented Matus with the purchase
order. Matus, in turn, had given him two invoices and
two sets of
goods. As the employee accepted, he “gave them one order number
and they supplied the goods to [him] twice”.
As he went on to
state, Matus “gave [him] two orders [of goods] with the same
order number and [he] signed the two”.
d)
Taxed
about how he could have signed for receipt of two sets of goods when
he only had one purchase order for them and was supposed
to check the
goods received against that order, the employee experienced some
difficulty. Along the way, he stated (unsatisfactorily)
that he would
normally just collect the goods and take them back to the company. He
did, however, go on to explain that it was
not uncommon for
duplicates to be picked up by the company, which would then be
returned to Matus (by way of a process described
as “GRN”).
e)
When
he returned to the company, the employee left the goods and invoices
for Lungile, and did not wait to see if he signed the
invoices or
not.
f)
Regarding
the fact that his log book only reflected the collection of order
number PO26459 and not order number LPO26459, the employee
accepted
this. He stated that he had gone to collect the orders listed in his
log book, and had received the duplicate order from
Matus, which he
did not then record in his log book. As far as he was concerned, he
was not required to do so. (While on the issue
of the log book, it
warrants mention that Lungile signed for receipt of order number
PO26459 in the log book. Yet the second invoice
that he signed was
for order number LPO26459.)
g)
When
it was put to the employee that he had (only) presented Lungile with
the second invoice and the goods reflected therein, the
employee
stated that he had given Lungile everything that he had received at
Matus.
h)
When
it was put to the employee that if he had given Lungile the first
invoice, he (Lungile) would have ticked off the items received
and
signed it (like he had done in respect of the second invoice), the
employee stated that he would normally just leave the goods
and
invoices for Lungile, and did not wait to see if he ticked and signed
them.
i)
It
was also put to the employee that Lungile had not called the employee
to discuss the duplications because he had not received
a duplicate
invoice or set of goods from the employee.
[12]
In
argument before the commissioner, the company sought to exploit the
employee’s failure to decline receipt of the duplicate
set of
goods, given that he only had one purchase order. The employee’s
representative, in turn, placed emphasis on the fact
that the company
had inexplicably failed to call Lungile as a witness.
The
commissioner’s award
[13]
The
full
ratio
decidendi
of the commissioner’s award (under the heading “substantive
fairness”) was as follows:
“…
Applicant argued
that he was not aware of the rule that he should enter what he
collected in the logbook and respondent did not
counter that
argument. It is not clear whether the delivery note on page 19
was an honest error on the part of the supplier
or it was indeed
accompanied by the products which allegedly went missing.
Respondent’s speculation that applicant went to
Africacell
without their knowledge does not indicate any mischief on applicant’s
part as his explanation that he went to
buy food seemed to be
understood by respondent.
It
is also unclear as to why the delivered products had to be checked by
Lungile if applicant was the one who had to be accountable
for their
safe keeping. Indeed Lungile should have testified to clarify how he
received the duplicate delivery notes which had
discrepancies as
stated above and failed to raise alarms. Applicant should not
shoulder the blame and lose his job for something
that went through a
series of human chain unless if respondent could prove that he forged
the duplication and stole the goods.
I
am not satisfied that respondent had shown that applicant, who worked
for respondent for almost 8 years with a clean record of
service, was
the one who acted dishonestly on the day in question.”
[14]
In
the result, the commissioner ordered the reinstatement of the
employee.
The
attack on review
[15]
In
argument before me, Ms Oschman (who appeared for the company)
submitted that the commissioner’s award failed the
Sidumo
test
[2]
for reasonableness. Mr
van der Merwe (who appeared for the employee) submitted, on the other
hand, that the award was capable of
reasonable justification and was
thus not unreasonable.
[16]
As
a point of departure, it would be fair to say that the commissioner’s
award evidences that she was not entirely on top
of the facts. Two
examples will suffice: firstly, the commissioner failed to appreciate
that it was the employee’s version
that he had received two
sets of goods from Matus; and, secondly, the commissioner failed to
appreciate that the employee accepted
that he had to check the goods
received versus the purchase order. But as the SCA made clear in
Herholdt
,
[3]
factual errors and misdirections alone are not sufficient to sustain
a review; the applicant must go further and establish that
they
caused the result to be substantively unreasonable.
[17]
The
question then is whether, despite any flaws in the award, the
commissioner’s conclusion that the employee was not guilty
of
theft is capable of reasonable justification. To my mind, it is,
principally as a consequence of the company’s (unexplained)
failure to call Lungile as a witness. (This being something that the
commissioner herself relied upon.)
[18]
On
the employee’s version, he left Matus with two invoices and two
sets of goods (this being the version advanced by the company).
Insofar as the company set out to prove by way of the vehicle
tracking report that the employee then disposed of the second set
of
goods at Africa Cell, it was unable to gainsay the employee’s
explanation of his movements (nor did it contend that they
were
irregular). On the employee’s version, he then delivered the
two invoices and two sets of goods to Lungile. The company’s
case on this issue is that Lungile: (i) only received the second
invoice (which he signed) and the goods reflected on it; (ii)
could
not have received the first invoice, because, if he had, he would
have signed and ticked it; and (iii) could not have received
the
first invoice and goods accompanying it, because, if he had, he would
have raised the duplication issue with the employee.
These are, of
course, all important contentions in the circumstances of this case.
But only Lungile could testify as to them.
[19]
If
Lungile had testified he could also have clarified certain other
issues. These include why Lungile himself had signed the log
book
reflecting that he had received order number PO26459, whereas the
second invoice (which he signed) was in respect of order
number
LPO26459.
[20]
Faced
with the predicament in argument that Lungile had not testified, Ms
Oschman raised the question of who should have called
Lungile, and
suggested that the employee ought to have done so. I cannot accept
this. Lungile gave evidence at the disciplinary
inquiry for the
company, and the company bore the onus of proving that the employee
was guilty of theft.
[21]
Although
the employee’s evidence was not free from blemish (particularly
around his failure to check the goods received against
the purchase
order), it was not such that it stood to be disbelieved in the
absence of the testimony of Lungile. This is not a
case where on the
evidence presented, the probabilities were settled against the
employee, rendering it unnecessary to call Lungile
as a witness.
Given that Lungile’s evidence would have been material for the
reasons stated above, and in the absence of
any explanation for his
failure to testify, it seems to me that an adverse inference can
properly be drawn from his failure to
testify.
[4]
[22]
In
Herholdt
,
the SCA found that the
Sidumo
test is met “if the decision is ‘entirely disconnected
with the evidence’ or is ‘unsupported by any evidence’
and involves speculation by the commissioner”.
[5]
This is clearly not such a case. On all the material before the
commissioner, the award is not one that a reasonable commissioner
“could not reach”.
[6]
Consequently, I conclude that the award is not reviewable.
[23]
Both
parties sought costs. In circumstances where the employee
(unrepresented by a union) has been successful in defending the
review application, I can find no reason why he should not be awarded
his costs.
Order
[24]
In
the premises, the following order is made:
1)
The
application is dismissed;
2)
The
applicant shall pay the third respondent’s costs.
________________________________
Myburgh,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the applicant: I Oschman (instructed by Du Plessis &
Kruyshaar Inc)
On
behalf of the third respondent: B van der Merwe (instructed by Maile
& Associates)
[1]
Labour Relations
Act 66 of 1995
.
[2]
Sidumo &
another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) at para 110: “Is the decision reached
by the commissioner one that a reasonable decision-maker could not
reach?”
[3]
Herholdt v
Nedbank Ltd (Congress of South African Trade Unions as
amicus
curiae
)
[2013] 11 BLLR 1074
(SCA) at para 25.
[4]
ABSA Investment
Management Services (Pty) Ltd v Crowhurst
[2006] 2 BLLR 107
(LAC) at para 14.
[5]
Herholdt
at para 13.
[6]
See fn 2 above.