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[2015] ZALCJHB 382
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VWMS Group (Pty) Ltd v Mooi NO and Others (JR1276/12) [2015] ZALCJHB 382 (29 October 2015)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR1276/12
In the matter between:
VMS GROUP (PTY)
LTD
Applicant
and
FAIZEL MOOI
N.O
First Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
LISO
SIMUBALI
Third Respondent
Heard: 2 July 2015
Delivered: 29 October 2015
Summary: Review
application; section 145 of the Labour Relations Act. Application of
review test. Third respondent
having being accused of abusing his
petrol card facility. Finding of commissioner that case had not been
proved by applicant. Court
on review finding that applicant had
proved on a balance of probabilities that the employee was guilty of
one of the charges against
him. The decision reached by the
Commissioner was not one that a reasonable commissioner could have
reached. The Third Respondent
had failed to meaningfully contradict
the Applicant’s evidence. This was clear on the evidence.
Dismissal was accordingly
substantively fair. Review application
granted and award substituted with finding of the court.
JUDGMENT
SNIDER, AJ
[1]
This is an
application to review and set aside an arbitration award (‘the
award”) issued by the first respondent under
case number
GAJD15051-11 dated 30 April 2012.
[1]
Background
[2]
Briefly, the background to this matter is as
follows. The applicant is in the business of merchandising. The third
respondent (“the
employee”) was employed by the applicant
in the capacity of an area supervisor.
[3]
As part and parcel of his duties, the employee
would attend at various shops where the applicant did work in order
to ensure that
the applicant’s work at the said shops was
properly done, and do whatever was necessary in that regard.
[4]
The employee’s
job entailed a significant amount of travelling. The petrol costs of
his travelling as well as any toll costs
were paid for by the
applicant utilising a petrol card system. Petrol cards were issued in
the names of the relevant employees
with the details of their
vehicles also recorded. The information, mileage and other relevant
figures were collated by the card
issuer, being Standard Bank (the
bank).
[2]
[5]
The employee was
dismissed on 23 May 2011.
[3]
[6]
The employee was charged, in terms of a notice to
attend an enquiry, with:
6.1.
gross abuse of company fuel card in that during
January 2011 to May 2011 you abused this facility; and
6.2.
breach of company
policy and procedures in that you put in fuel on Fridays and
week-ends, contrary to policy during January 2011
to May 2011.
[4]
[7]
A disciplinary enquiry was duly held; the employee
was found guilty of both charges and dismissed.
[8]
Subsequently, the employee referred an unfair
dismissal dispute to the second respondent and the unfair dismissal
dispute was adjudicated
by the first respondent.
[9]
The applicant relied in its evidence on certain
vehicle transaction reports provided by the bank and what the
information they contained
in relation to the employee’s fuel
consumption and patterns of usage.
The evidence of Godlonton
[10]
The applicant led
the evidence of Andrew Godlonton “(Godlonton”). Godlonton
is the Group HR Manager of the applicant.
[5]
[11]
It does not seem to
be disputed between the parties that the employee understood that he
was bound by the car allowance policy set
out in the employee’s
conditions of employment.
[6]
[12]
Specifically, at paragraph 7.3, the car allowance
policy of the applicant is set out in some detail. The car allowance
policy provides
explicitly that a fuel card is issued for the
purposes of purchasing fuel and that employees are not permitted to
use the fuel
card on a Friday, Saturday, Sunday or public holiday
unless authorised by management.
[13]
It similarly appears to be common cause that the
fuel card could only be utilised by the employee “within
reason”.
[14]
Godlonton gave
detailed particularised evidence in relation to the vehicle
transaction reports.
[7]
[15]
Godlonton
illustrated that the employee’s petrol consumption and mileage
travelled is, to say the least, improbable in terms
of the work he
does and the amount of travelling which he is required to do.
[8]
[16]
A significant
portion of evidence centred on the period 24 to 28 January 2011.
[9]
On 24 January 2011,
the employee attended at the Life Lane Medical and Dental Centre
which is in Windsor East, Randburg. The document
that he was
presented with by the doctor he consulted, booked the employee off
from 24 January 2011 to 28 January 2011. The doctor
further stated
that the employee ‘is on sedating medication and will need to
sleep to enable recovery. It is important that
he refrains from
active duty and that adheres to strict bed-rest. He will resume
duties on 29 January 2011'.
[17]
If one the has
regard to the dates on the vehicle transaction report,
[10]
it is apparent that
the employee during the said period on 26 and 27 January 2011 put
fuel in his car twice for an amount in excess
of R1, 000 (One
thousand rand) and appears to have travelled, during the said period,
at least 1100km.
[18]
Obviously, from the applicant’s perspective,
this presented a serious and troubling dichotomy. On the one hand,
the employee
has telefaxed a sick note which prescribes a routine of
strict bed-rest for the employee whilst on the other hand he is
driving
long distances and filling his vehicle during the period when
he should be in bed on his doctor’s instructions.
[19]
The employee’s
version on this was that he was forced to work by his direct manager,
Ferdie Senekal (“Senekal”).
[11]
[20]
The employee was
once again booked off from 16 February until 21 February 2011.
[12]
Once again, this is
in contrast to him having continued having to utilise his petrol card
during the said period.
[13]
[21]
The employee appears to proffer the excuse in
respect of this period that his manager forced him to work.
[22]
Given that this was the second fairly long spell
of absenteeism due to ill health and given the seriousness of the
first note from
the doctor, it seems, to say the very least, highly
improbable that the employee would have been in a position to work at
all due
to his physical condition during these periods. If any
attempt was made to force him to work, he would surely have escalated
the
matter to higher management, which did not do. It would also have
been open to him to enlist the assistance of the doctors who had
examined him and required him not to work.
[23]
There is evidence from the employee that was
accepted under cross-examination, that there was a meeting in this
regard between him
and management, but, as with much of the
employee’s evidence, it is not matched, chronologically or
otherwise, to the events
he is accused of.
[24]
The employee was
again booked off from 4 to 7 March 2011.
[14]
[25]
It appears,
however, that the applicant filled his vehicle on 3 March and again
on 7 March and travelled, during the period that
he was allegedly
ill, a distance of approximately 527km.
[15]
[26]
Ultimately,
Godlonton’s evidence amounts to the employee having travelled
significantly more kilometres than what was deemed
necessary for
business purpose and also during periods that he was ill.
[16]
[27]
The cross
examination of Godlonton only served to further illustrate the
excessive and abusive use that the employee was making
of the petrol
card facility.
[17]
[28]
The applicant’s representative, an attorney,
and later the applicant himself, who continued with the
cross-examination, did
little more than to confront Godlonton with a
variety of possibilities which might explain the excessive fuel
usage. These ranged
from the employee having acquired a less
economical vehicle, to the employee having to obtain stock items with
his vehicle and
deliver them to the stores, to the employee having to
return to the office to download photographs taken at the relevant
store.
[29]
None of this cross-examination was done with the
level of specificity or particularity that ought to incline a
decision maker to
regard it as seriously challenging the applicant’s
witness’s evidence.
[30]
Godlonton’s evidence was squarely based on
an appreciation of the distances and geographical locations of the
various places
to which the employee had to travel and on the vehicle
transaction report, the accuracy and veracity of which was not
challenged
by the employee.
[31]
The commissioner
was aware of the employee cross-examining in a general and
un-particularised fashion. He made this known to the
employee.
[18]
He in fact gave the
employee clear pointers as to how the employee should cross-examine
Godlonton.
[19]
The fact that the
employee did not do so can not be indicative of anything other than
that he was not able to deal with the evidence
in a particularised
way as he had no explanation in relation to his abuse of the petrol
card.
[32]
The employee put it to Godlonton that he had
complained to Godlonton in relation to being made to work during a
sick period and
how to go about putting a grievance.
[33]
In these
circumstances, it seems much more improbable that the employee would
in fact have worked during any of the periods that
he was sick as
referred to above and, particularly, during the period where the
doctor had stated that he was on sedating medication
and required
bed-rest. There is no question that he would have approached
Godlonton or someone of equivalent or higher seniority
or, as set out
above, have approached the relevant medical professional to assist
him in this regard. His explanation is wanting
and highly
improbable.
[20]
[34]
Again the
commissioner was acutely aware of the paucity of the employee’s
explanation.
[21]
[35]
Godlonton makes the
point, during cross-examination,
[22]
that, according to
the route list the employee had two calls a day to make and in light
of this, it is again, very difficult to
determine how the employee
could have accumulated the sort of mileage which he did.
[36]
There was a dispute about the trip sheet and
whether the one presented at the arbitration was the same as the one
used at the disciplinary
enquiry. Again, the probabilities weigh
heavily in favour of the applicant in this regard.
[37]
There simply does
not seem to be any reason or justification whatsoever for different
documents to have been used and, similarly,
the employee did not
raise this at the inception of the arbitration which, given that he
was represented at the time, one would
have thought that he
would.
[23]
[38]
The entire version
surrounding the photographs that allegedly had to be transported to
the applicant’s office is once again
lacking in any
particularity.
[24]
[39]
The employee also
tries to attach importance to where the vehicle was filled by him. It
seems that the intimation here is because
the vehicle is filled near
the shops where he works. This, somehow, legitimises the extra
mileage. Godlonton points out that this
is all but irrelevant.
[25]
[40]
It appeared from
re-examination that the trip sheet had never been questioned by the
employee during the course of the disciplinary
enquiry.
[26]
[41]
Godlonton
contextualises the amount of money that was being spent on the
employee’s petrol when he illustrates that for half
of January
and half of February R5 900 (five thousand nine hundred rand) was
spent, the next month it went to R5 500 (five thousand
five hundred
rand) and then in April R8147 (eight thousand one hundred and
forty-seven rand). Godlonton gives evidence that town
reps spend
approximately R3000 (three thousand rand) a month.
[27]
The evidence of Senekal
[42]
Senekal’s
evidence was unequivocally that the disputed document
[28]
was indeed the
employee’s route list.
[43]
Senekal gave evidence of the events on 24 to 28
January 2011. His version is more consistent and probable than the
employee’s.
I have dealt with the improbability of the employee
working in circumstances where he was as ill as indicated in the sick
note
of 24 January 2011.
[44]
Senekal’s
evidence is that he did not force the employee to work and, in
addition thereto, only knew about the sick note when
it was faxed to
the applicant on 25 January 2011. This is entirely consistent with
the events that transpired and entirely consistent
with the employee
not having been available on 24 January 2011 to meet with Senekal and
not having been available thereafter to
meet with him. Senekal states
that he, under the circumstances, would have to get a “relief
person”.
[29]
If Senekal was
forcing the employee to work, there would have been no reason for the
employee to telefax the sick note to the applicant.
There was nothing
at all to prevent the employee, under the circumstances, from simply
staying at home and following the regime
prescribed by is doctor.
[45]
The version put
relative to the taking of pictures was exposed by Senekal to be a
fallacy. There was no need for the employee to
go back and forth to
the stores he was working at for the purposes of downloading
pictures.
[30]
[46]
The consistency in Senekal’s evidence
relating to the period for which the employee was booked off, 24 to
28 January 2011,
is illustrated again when he demonstrates that he
was not aware of the sick note until 25 January 2011 and this is
consistent with
Senekal wanting to meet with the employee on 25
January 2011, having expressed same to him on 24 January 2011. Given
the above,
the employee’s version in this respect is palpably
false. The versions in respect of the other days in which the
employee
was booked off does not even appear to have been put to
Senekal.
The evidence of the employee
[47]
The employee’s
evidence itself begs the question of his excessive fuel usage. He
gives evidence that on average he only visited
one city per day.
[31]
[48]
The absence of
documentation corroborating the employee’s version is stark.
There appears to be no reason whatsoever why he
could not have
obtained such corroborating documentation and his failure to do so
must carry with it an inference of his guilt.
He does not appear to
have even asked the employer to provide it.
[32]
[49]
The employee places
much store by an affidavit of Celia Brown who, on one occasion,
authorised him to put fuel in his car on one
of the days on which he
was conventionally not entitled to, in this instance being a Friday.
This affidavit
[33]
clearly applies
only to that single occasion.
[50]
In a fashion that
is prevalent throughout his evidence and cross-examination, the
employee is not able or prepared to disclose exactly
where he
travelled.
[34]
This passage is
particularly demonstrative of the employee’s uncertain and
evasive pattern of giving evidence. The passage
continues in this
manner.
[51]
Relative to the
issue of 25 January 2011, the following passage from the employee’s
evidence upon being questioned by the
commission is relevant.
[35]
‘
Applicant
- Yes sir, yes Mr Chairman I faxed through on the 25
th
because
on the 24
th
as
soon as I got home I had to sleep and then when I woke up at around 8
o’Clock I called my manager who then forced me to
come to work
the following as per his testimony.’
[52]
Not only was Senekal’s testimony to the
contrary but, in addition, the absurdity of this evidence is
illustrated when one
realises that the fax was only sent to the
applicant on the morning of 25 January 2011 after Senekal had
allegedly instructed the
employee to come to work. If this was the
case, the sending of the telefax would no doubt have been an
indication to Senekal and
to the applicant itself that the employee
would not be coming to work. The employee’s evidence is
patently false.
[53]
It is also relevant
that the employee did not file a grievance in this regard.
[36]
[54]
It is simply
illogically that the applicant would seek to force the employee to
work in these circumstances and it appears that
the commissioner
recognised this.
[37]
[55]
The employee seems
to be of the view that the documentation that would exonerate him
would be in the hands of Senekal. There is,
however, no evidence
whatsoever that he sought to obtain same from the applicant or
Senekal directly.
[38]
[56]
The employee is
simply not able to give detailed evidence in his defence.
[39]
[57]
In
cross-examination, it was illustrated to the employee that in fact
photographs would only be dealt with once a week on a Friday.
[40]
[58]
Once again, the employee’s answer is vague
and evasive.
The award
[59]
The second charge against the employee, being that
relating to filling up on Fridays, weeks-ends and public holidays is
certainly
the less significant charge and it does seem fairly clear
that on one occasion the employee was authorised by Celia Brown, an
HR
manager, to do so and that Senekal did not deny the possibility
that he had authorised the employee on the second occasion.
[60]
The fact that Senekal makes this concession is, in
fact, testament to his credibility. In those circumstances, I am in
agreement
with the commissioner that the employee was not guilty of
the second charge and I do not question that the decision that the
commissioner
took, in this regard, was in a band of reasonable
decisions given the material that was before him. However, when it
comes to the
first charge, the position is very different.
[61]
In this regard, the commissioner in fact makes out
the case for the applicant and should have followed his analysis in
this regard.
It is quite clear from the evidence that the employee
was consuming petrol way in excess of what he should have been, given
the
distances he had to travel.
[62]
The probabilities of the employee’s version
relating to the times that the employee was booked off sick and the
allegations
that he was forced to work, notwithstanding, that he was
apparently gravely ill on one occasion, are wholly unsupportable in
light
of the evidence before the commissioner.
[63]
The commissioner
makes the point that there is no record of the stores not on the
contested route list being near where he filled
up.
[41]
[64]
The commissioner then says:
‘
However,
a suspicion is not sufficient to establish guilt on a balance of
probabilities.’
[65]
This is where the award departs from the
reasonable.
[66]
It is manifestly clear that the applicant put up a
strong case supported by uncontested documentation and largely
uncontested oral
evidence. It was not a “suspicion” by
any means but a factual case which the employee had to meet if he was
to be successful.
The fact that the route list was not signed cannot
conceivably “break the chain of evidence” as the
commissioner would
suggest.
[67]
The commissioner did not evaluate whether or not
this was in fact the route list given that it was, on the evidence of
Senekal,
the same route list used at the arbitration. This was also
the evidence of Godlonton and was to be viewed in the light of the
commissioner’s
finding that the employee did not fill up near
any of the stores which he alleged visited, that were not on the
route list.
[68]
The commissioner seeks to utilise the argument
relating to the photographs which, with respect, is nothing short of
absurd. The
commissioner also states that the notification dealing
with this issue does not conclusively prove that the employee did not
drive
back and forth.
[69]
What the commissioner failed to appreciate is
that, again, this was a speculatively piece of evidence on the part
of the employee,
the employee admitted that this was not a regular
occurrence and that he could not fit it into the scheme of his
evidence either
temporally or specifically in relation to any of the
allegations.
[70]
The commissioner stretches to find evidence to
support the employee’s case and uses Senekal’s admission
that there is
some possibility that such journeys were made to
exonerate the employee. This is entirely contrary to the flow of
evidence.
[71]
The argument that because there were no
complaints, therefore, the employee was not travelling excessively or
utilising excessive
fuel is, again, without merit. I do not
understand on what basis the commissioner could conceivably have
accepted this as an exculpatory
argument or exculpatory evidence.
[72]
The applicant was not required to prove that the
employee was not about company business, that he did not attend the
stores on the
days in question, that he did not drive to the office
to download pictures nor that he did not sign the store register. The
charges
against the employee were that he abused the petrol card
facility. This was demonstrated, most cogently by Godlonton, using
the
vehicle transaction reports and his own knowledge of the
situation. This was simply never successfully challenged by the
employee.
[73]
The commissioner
finds that the main part of the applicant’s case is that the
employee filled up during times that he was
booked off sick. The
commissioner indeed makes out a powerful case that this was a
problematic issue.
[42]
However, somehow he
finds that the sick note and Senekal’s denial is not enough to
prove the employee’s guilt.
[74]
This is entirely contrary to the evidence which
was before the commissioner. The factors in favour of the employee
having filled
his car while he was on sick leave significantly
outweigh those that suggest that he was working during that period. I
have dealt
with these above. They include the fact that the sick note
was telefaxed the following day, that there were various periods
during
which the employee was sick and he allegedly discussed being
required to work at some time with his superiors, Senekal had no
reason
to lie, the employee did not lodge a grievance, his sickness
was so severe that he was sedated and, physically, even on his own
version, he could not have worked at least for most of 24 January
2011.
The test on review
[75]
All of this evidence is simply incontrovertible.
[76]
The test for
determining the reviewability of an award is as set out in
Sidumo
and Another v Rustenburg Platinum Mine Limited and Others
;
[43]
Herholdt v
Nedbank Limited (Congress of South African Trade Unions and Amicus
Curiae,
[44]
and
Goldfields
Mining (Pty) Limited (Kloof Gold Mine) v Commissioner for
Conciliation Mediation and arbitration
.
[45]
[77]
The following is an
exposition of the test from the judgment of Waglay, JP in the
Kloof
decision
supra
.
[46]
‘
Sidumo
does
not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that on evaluation,
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in Sidumo was at pains to state that
arbitration awards made under the Labour Relations Act continued to
be determined in terms of section 145 of the LRA but that the
constitutional standard of reasonableness is ‘suffused’
in the application of section 145 of the LRA. This implies
that the
application for review sought on the grounds of misconduct, gross
irregularity in the conduct of the arbitration proceedings
and/or
excess of powers will not lead automatically to setting aside of the
award if any of the above grounds are found to be present.
In other
words, in the case such as the present where a gross irregularity of
the proceedings is alleged, enquiry is not confined
to whether the
arbitrator must conceive 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 to which a reasonable
decision maker could come on
the available material.’
[78]
The evidence before the arbitrator was, as set out
above, overwhelming that the employee had repeatedly, and over a
significant
time period, abused his petrol card facility. His excuses
such as travelling to the office repeatedly to download photographs,
that he was forced to work whilst he was significantly ill, and that
he went to stores other than those on the route list produced
(notwithstanding that there was no record of him having filled in the
vicinity of those stores as there was in respect of other
stores)
lack any level of credibility.
[79]
There is no basis on which a reasonable
commissioner could come to the conclusion that the employee was
innocent on the basis of
the evidence before him. The evidence of the
applicant was cogent, thorough and well set out, but above all
credible.
[80]
The evidence and cross-examination by the employee
simply never attacked and undid the detailed information provided by
the applicant.
The employee could not account for what he had done
and simply adopted an approach where in a vague and unsystematic way
he threw
out a variety of possibilities as to why he may have
travelled the mileage that he did.
[81]
There was no possible reasonable basis on which
the arbitrator could have accepted this evidence in the face of the
compelling particularised
case made out by the applicant.
[82]
The award departs from the band of reasonable
decisions which the commissioner may have reached in that,
notwithstanding the strong
and cogent case presented by the
applicant, the commissioner took a range of evidence, which
constituted nothing more than vague
possibilities, not specific to
the alleged events, and came to the conclusion that, in light of that
evidence, the dismissal of
the employee was substantively unfair.
[83]
In the premises, I am of the view that the award
should be reviewed and set aside.
[84]
I have been placed
in possession of certainly the bulk of the evidence, (although it
does seem as if some of the transcript may
be missing,
[47]
this is not an
issue which was raised by either party). What has been canvassed in
the affidavits and what appears from the remainder
of the record, in
any event, comprehensively deals with the matter.
[85]
Procedure was not in dispute.
[86]
Accordingly, I make the following order:
86.1.
The award of the commissioner dated 30 April 2012
under case number GAJB15051-11 is reviewed and set aside.
86.2.
The award is substituted with the following:
“
The
dismissal of the employee was substantively fair.”
86.3.
There is no order as to costs.
___________________________
Snider, AJ
Acting Judge of the Labour Court
Appearances
For
the Applicant:
Anita Bosch
of Snyman Attorneys
For
the Respondent:
Charles Beckenstrater of Moodey &
Robertson Attorneys
[1]
A copy of the
award appears at pages 25 to 51 of the application bundle.
[2]
Copies of the
Standard Bank vehicle transaction reports in respect of the
employees’ vehicle are annexed to a bundle entitled
index to
record 6 from page 41 to 44.
[3]
Index to record V1
page 56.
[4]
Index to record V1
page 75.
[5]
Transcript page 3
[6]
Index to record V1
page 113
[7]
Index to record V1
pages 41 to 44.
[8]
Transcript 153ff.
[9]
Index to record V1
page 120.
[10]
Index to record V1
page 41.
[11]
Transcript page
159.
[12]
Index to record V1
page 125.
[13]
Transcript page
160 and Index to record V1 page 141.
[14]
Index to record V1
page 48.
[15]
Index to record V1
page 42 and page 161 of the transcript.
[16]
Page 165 of the
transcript lines 10 to 16.
[17]
Transcript page
168 lines 10 to 20.
[18]
Transcript page
183 to 184.
[19]
Page 184 of the
transcript lines 4 to 7.
[20]
Transcript page
191.
[21]
Bundle page 192.
[22]
Transcript page
199.
[23]
Index to record V!
page 39.
[24]
Transcript page
200 lines 1 to 5.
[25]
Transcript page
203 lines 1 to 5.
[26]
Transcript pages
206 to 207.
[27]
Transcript page
208 lines 3 to 14.
[28]
Index to record V1
page 39.
[29]
Transcript page
213 lines 14 and 15.
[30]
Transcript page
234 lines 11 to 25.
[31]
Transcript page
253 lines 20 to 25.
[32]
Transcript page
254 lines 20 to page 255.
[33]
Index to record V1
page 132.
[34]
Transcript page
258 lines 5 to 20.
[35]
Transcript page
259 lines 8 to 11 and page 263 lines 1 to 2.
[36]
Transcript page
260 lines 4 to 6.
[37]
Transcript page
260 lines 15 to 16.
[38]
Transcript page
261 lines 19 to 22.
[39]
Transcript page
264 lines 10 to 15.
[40]
Index to record V1
page 58 and Transcript page 66.
[41]
The application
bundle page 29, para 37.
[42]
Application bundle
page 29, para 36.
[43]
[2007] 12 BLLR
1097
CC.
[44]
(2012)
ILJ
1789 (LAC).
[45]
(2014) 35
ILJ
943 (LAC).
[46]
Ibid at para 14.
[47]
Transcript page
277.