About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 393
|
|
Pick 'n Pay Hypermarket v Commission for Conciliation, Mediation and Arbitration and Others (JR715/13) [2015] ZALCJHB 393 (12 November 2015)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 715/13
In
the matter between:
PICK ‘N PAY
HYPERMARKET
Applicant
And
COMMISSION FOR
CONCILIATION,
MEDIATION &
aRBITRATION
First Respondent
MR JOSEPH MPAHPULU
N.O.
Second Respondent
SACCAWU OBO MR
THAMI mNISI
Third Respondent
Heard
:
22 October 2015
Delivered
:
12 November 2015
Summary:
(Review – arbitrator misconstruing correct
approach to evaluating evidence and test of proof on balance of
probabilities –
grossly irregular and irrational –
evidence not admissible as hearsay, admissible and relevant for other
purposes)
JUDGMENT
LAGRANGE
J
Background
[1]
In this matter, the third respondent was
dismissed after being found guilty of removing a laptop from the
kosher bakery of the respondent,
with the intention of removing the
item from the applicant’s store group without authority, or in
other words attempted theft.
[2]
The basis on which he was found guilty was
that he admitted having taken it to three security guards who had
been called in to investigate
the missing laptop shortly after it had
gone missing. According to their evidence they had identified him as
a possible suspect
because he appeared to be ill at ease and restless
compared to the other personnel in the bakery. They questioned him
and he had
admitted to hiding the laptop in one of the fridges. After
obtaining the admission the security guards were on their way back to
speak to the head of the department, known as ‘Raol’.
When they met him he told them that they had found the laptop
in one
of the fridges in the course of conducting a search of the premises.
[3]
Two of the security guards testified at the
arbitration and the arbitrator found that their evidence corroborated
each other, which
gave their version weight without necessarily
meaning that their versions were truthful or reliable. The arbitrator
was unconvinced
by their evidence because they did not reduce the
admission made by the third respondent to writing and did not even
recorded in
the occurrence book. Neither of these last two issues had
been raised by the third respondent or his representative in the
course
of the enquiry but were issues canvassed by the arbitrator on
his own initiative. He also found that it did not make sense why the
third respondent would hide the laptop in the refrigerator, to which
other employees in the bakery had access. The arbitrator was
also
unconvinced by evidence of one of the security guards that when he
went to see if there was any video footage of the area
where the
laptop disappeared, he found that there was no camera covering the
bakery area where the laptop went missing. He found
it suspicious too
that there was a two-week gap between the date when the laptop was
stolen and the employee being told he was
suspected of the
misconduct. In his view, the delay could not be justified because no
further investigations were necessary.
[4]
The third respondent’s defence was
brief. At some stage during the morning in question, five or six
security officers entered
the department. While they were still
there, “… there came Raol carrying a laptop”.
According to him the security
officers never questioned him nor did
he indicate that there was any interaction of any sort between
himself and them. Two weeks
later he was told that he was suspected
of taking the laptop.
The
review
[5]
The applicant seeks to review and set aside
the award on the basis that it is one that no reasonable arbitrator
could reach. In
particular, the applicant highlights the following in
support of this ground:
5.1
the arbitrator’s effective conclusion
that the evidence of the security guards could not be regarded as
truthful or reliable,
cannot be justified;
5.2
the arbitrator unjustifiably excepted a
version of the third respondent which amounted to a bare denial
despite the corroborative
evidence of the two company’s
witnesses.
[6]
Another ground of review is that the
arbitrator embarked on the wrong enquiry which amounted to a gross
irregularity. In essence,
the applicant contends that the arbitrator
approached the enquiry on the basis that in order to find the third
respondent guilty
he had to be satisfied that this was the possible
interpretation of the evidence.
[7]
In defending the arbitrator’s award,
the union emphasised the issues which had caused concern to the
arbitrator, such as the
lack of video surveillance footage, the delay
in charging the third respondent, the failure to record a written
confession and
the failure to lead the evidence of Raol, who found
the laptop.
[8]
It suffices for the purpose of this
judgment to cite
Herholdt v Nedbank
Ltd
(Congress of SA Trade
Unions as Amicus Curiae)
in which
the SCA set out the principles governing review based on gross
irregularity:
‘…
For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s145(2)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result
.
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 particular facts, are not in and of themselves
sufficient
for an award to be set aside,
but
are only of any consequences if their effect is to render the outcome
unreasonable
.’
[1]
(emphasis
added)
Rationality
[9]
The arbitrator’s statement that the
evidence of the two security officers was both consistent and
corroborative of each other
and accordingly gave weight to their
version, but nonetheless that did not make their version truthful or
reliable is an extraordinary
one. The fact that their evidence
corroborated one another’s and did so consistently is a
consideration that has a direct
bearing on the truth value to be
attached to their evidence. The reliability of their testimony is
likewise enhanced by the fact
that their evidence was mutually
consistent. It is absurd to suggest that evidence which consistently
corroborates other evidence
has no bearing on the truth or
reliability of that evidence.
[10]
The arbitrator also manifestly failed to
weigh up the probabilities of the applicant’s version against
the probabilities of
the third respondent’s version. In essence
the third respondent’s version was that the security officers
merely appeared
in the bakery, made no enquiries and then Raol just
appeared with the laptop. His version also entails accepting that
despite there
being no interaction of any kind between him and the
security officers, he was accused of removing and concealing the
laptop in
a fridge, based on a fabricated admission, without any
reason being advanced why he would have been so unfairly singled out
by
the security officers. Although he denied having any interaction
with the security officers, he never disputed that the reason the
security officers had entered the bakery was because the laptop had
been reported missing. Had the arbitrator weighed up the inherent
probabilities of each version and compared them, bearing in mind also
that the applicant’s case rested on the corroborating
evidence
of two witnesses, it is difficult to see how he could reasonably
arrive at a conclusion that the applicant’s version
was not the
more probable one.
Misconstruing
the nature of the enquiry.
[11]
It is also apparent that the arbitrator
effectively required the applicant to prove its case against the
third respondent beyond
a reasonable doubt rather than on a balance
of probabilities. Not only did the arbitrator applied the wrong
standard, but also
took account of factors not even raised by the
third respondent. In focusing on the absence of a written confession
or the absence
of an entry in the occurrence book, the arbitrator
pursued his own interpretation of a possible defence to the charge.
[12]
It
is important to mention that it is sufficient if an employer adduces
enough evidence in support of its case to establish a plausible
case.
An employer is not required to present the best possible case it
could taking into account all the evidence potentially available.
Obviously, there is a risk that the evidence it does rely on may be
found to be insufficient at the end of the case to prove its
case on
a balance of the probabilities on a consideration of all the evidence
placed before the arbitrator. However, that will
only happen if its
version is not more probable than that of the employee on all the
evidence that was presented. As long as the
employer makes out a
plausible version supported by evidence and as long as that version
is also more probable than that of the
applicant, even if it could
have made out a better or stronger version
[2]
,
it should still succeed on the balance of probabilities.
[13]
The arbitrator ought to have realised that
it was unreasonable to have rejected the testimony of the two
security guards based on
his speculation about why the laptop would
have been hidden in a fridge, or his own suspicion that there ought
to have been video
surveillance footage of the bakery and on drawing
an adverse inference from the delay in charging the third respondent
in the absence
of any evidence suggesting
mala
fides
on the part of the applicant and
its witnesses. It is true, that the applicant did not call Raol to
confirm where he had found
the laptop, though it was not in dispute
that Raol was the one who appeared to have found it. That is
consistent with security
officer’s testimony that Raol was the
person who reported where it was found. It also is plausible that he
did report where
it was found. The question is to what extent
evidence of what he said could legitimately be regarded as part of
the evidence the
arbitrator properly should have considered.
[14]
As it happened, Raol did not testify, so
the arbitrator only had the security officers’ version of what
he said. The
fact that the security officers testified that
Raol told them he found it in the same place mentioned by the third
respondent in
his admission to them obviously could be relevant
because it tends to prove that the laptop was probably found in a
fridge, i.e.
its relevance concerns the truth of Raol’s
statement as corroborating the truth of the contents of the third
respondent’s
admission. However, if it was admitted for that
purpose, its admission would be governed by the principles applicable
to hearsay
evidence, and probably cannot be considered for that
purpose.
[15]
But the evidence of Raol’s statement
was also relevant for another, non-hearsay related reason, and that
is simply the fact
that such a statement was made, not whether it was
true or not. The fact that Raol made a statement mentioning details
of the laptop’s
location which coincided with what the security
officer’s said the third respondent told them, given that Raol
was not present
when the third respondent was questioned and
therefore could not have known what he told the security officers, is
also evidence
which tends to corroborate the fact that such admission
was made by the third respondent, because it is unlikely Raol would
have
also mentioned that detail by sheer coincidence. Whether
Raol did mention where the laptop was found or not, was a matter
to
be decided on the probabilities of the two versions. On account
of this, while I agree that Raol’s statement could
have not be
legitimately considered for the purpose of proving where the laptop
was found, the mere fact that it was made was also
relevant to the
probabilities of the third respondent having made the admission and
could be considered for that purpose.
[16]
In summary, the arbitrators misconceived
both the primary task of weighing the probabilities of the two
versions and the standard
of proof applicable to arbitration
proceedings. Further, his reasons for dismissing the evidence of the
applicant’s witnesses
as unreliable and untruthful, was both
illogical and over-reliant on his own speculative reasoning.
Consequently, I am satisfied
his award should be reviewed and set
aside.
[17]
On the question of substituting relief, I
am satisfied that, on a balance of probabilities, the third
respondent probably did admit
to hiding the laptop in a fridge, and
that the most probable reason for doing so was to remove it at a
later stage. Accordingly,
he was guilty of the misconduct he was
charged with and dismissal was not an inappropriate sanction given
the gross dishonesty
involved, irrespective of the other mitigating
factors. Such conduct is inherently destructive of the trust
relationship.
Order
[18]
The arbitration award of the second
respondent dated 28 March 2013 issued under case number GAJB 22524-12
is reviewed and set aside.
[19]
The second respondent’s finding that
the third respondent’s dismissal was unfair and the
consequential relief awarded
is substituted with a finding that his
dismissal was fair.
[20]
No order is made as to costs
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
S Dube of Bowman Gillfillan Inc.
For
the Third Respondent:
M Mjeza of SACCAWU
[1]
(2013)
34
ILJ
2795 (SCA)
at 2806, para [25].
[2]
The so-called best evidence rule which held that a party should
produce the best evidence of a fact which the nature of that
fact
permits is no longer of general application, as confirmed in
Conradie J in
Welz
v Hall
1996
(4) SA 1073 (C)
at
1079C-E:
"As far as the best
evidence rule is concerned, it is a rule which applies nowadays only
in the context of documents and
then only when the content of a
document is directly in issue. It provides that the original of a
document is the best evidence
of its contents. The rule is a very
ancient one. It goes back to the Dark Ages, well perhaps the
twilight days, before faxes
and photocopying machines, when making
copies was difficult and such copies as were made often inaccurate.
Under those circumstances
Courts, naturally, insisted upon
production of the original document as being the most reliable
evidence of its contents."
See
also Zeffert D, et al The South African Law of Evidence, 2003 at
358,