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[2015] ZALCPE 38
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South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others (C63/2014) [2015] ZALCPE 38 (9 June 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case N0: C 63/2014
In the matter between:
SOUTH AFRICAN REVENUE
SERVICE Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION First
Respondent
S MAFOYANE
N.O.
Second
Respondent
NEHAWU obo
MANGOJANE
Third Respondent
Heard:
4 September 2014
Delivered:
9 June 2015
Summary:
An arbitration award which is not supported by the evidence before
the commissioner is reviewable.
JUDGMENT
LALLIE, J
Introduction
[1] This is an
application to review and set aside an arbitration award of the
second respondent (“the Commissioner”)
in which he found
the dismissal of the individual third respondent (“the
respondent”) both substantively and procedurally
unfair and
substituted the dismissal with a final written warning valid for a
period of six months, from 15 January 2014 to 14
July 2014. In terms
of the reinstatement order, the applicant was directed to pay the
respondent an amount of R 255 528.43. The
application is opposed by
the third respondent.
Factual background
[2] The respondent was
employed by the applicant. He reported to Mr Tau (“Tau”)
who was the Port Commander at the Maseru
border post. On 5 May 2012,
the Customs and Border Control Unit (“CBCU”) merged with
the Customs Trade Operations at
the Van Rooyen’s border post.
The Maseru and Van Rooyen’s border posts are in the Free State
region of the applicant.
After the merger Tau became the senior
manager in the Free State region and Mr Paul (“Paul”)
assumed the position of
acting Port Commander at the Maseru border
post. The respondent’s reporting line changed as well as he had
to report to Paul.
The respondent made use of the applicant’s
motor vehicles in the performance of his duties. However, between May
and July
2012 he failed to obtain the necessary authority for the use
of the vehicles from Paul. His conduct continued unabated
notwithstanding
a verbal warning from Paul. Paul became aware that
the respondent continued using the vehicles without his authority
after the
respondent was involved in a car accident. Investigations
conducted subsequent to the accident brought to Paul’s
attention
that the warning he had issued the respondent with had no
effect on his conduct. The respondent was charged with 11 counts of
unauthorised
use of the applicant’s motor vehicles, found
guilty of the misconduct and dismissed. He challenged the fairness of
his dismissal
at the first respondent where the Commissioner issued
the award which forms the subject matter of this application.
The arbitration award
[3] Giving reasons for
his decision, the Commissioner found the testimony of Mr Klaai
(“Klaai”) suspect and applied
the cautionary rule when
evaluating it because he was, as the Commissioner put it, somewhat
cagey and avoided answering questions
which clearly sought to assist
the applicant’s case. Most of the time he stated that he could
not remember and his testimony
was also contradictory in some way and
often showed bias in favour of the respondent. He recorded that it
was Klaai’s evidence
that the respondent had to report to him
only on operational issues but he still had to obtain approval from
Paul. He could not
understand how the respondent was expected to
obtain authority before the commencement of a trip from Paul who was
stationed at
the Maseru border hundreds of kilometres away. He
considered a concession made by Klaai that he gave verbal approval
for the use
of vehicles by his juniors and that one of them made a127
kilometres’ trip without the necessary authority.
[4] The Commissioner had
a dim view of the respondent’s failure to tender evidence in
the form of the trip authorisations
approved by Paul for the use of
the vehicles by the respondent. He recorded that Paul testified that
the respondent reported to
him but had to obtain the transport
officer’s approval for local trips. He took into account that
the applicant relied on
testimony of witnesses only and that the
relationship between Klaai and the respondent was strained. He also
found that the relationship
between the respondent and Tau was to
some extent strained. He considered trip forms which were submitted
by the respondent to
prove that authority was not obtained at the Van
Rooyen’s border post before the applicant’s vehicles were
used. He
found that the applicant had failed to discharge the onus of
proving that the respondent’s dismissal was fair. He further
found that the applicant acted inconsistently and that there was a
strong probability that the respondent had the necessary authority
to
undertake official trips. He found that the applicant breached its
own disciplinary code by not issuing the respondent with
a final
written warning for using its vehicles without authority. He
concluded that the respondent’s dismissal was both
substantively and procedurally unfair, substituted the sanction of
dismissal with a final written warning valid for six months from
15
January 2014 to 15 July 2014 and directed the applicant to pay the
respondent remuneration he would have earned from 14 March
2013 to 15
January 2014 in the amount of R 255 528.43.
Grounds for review
[5] The applicant’s
grounds for review are mainly that the Commissioner committed gross
irregularities which led him to reach
an unreasonable decision. Those
irregularities include his incorrect application of the cautionary
rule when assessing the evidence
of Tau and Klaai when he had no
reason to do so. He made mistakes of fact in finding that by issuing
the sanction of dismissal,
the applicant contravened its own
disciplinary policy. He erred in finding that it breached its own
disciplinary code by issuing
the sanction of dismissal. He
incorrectly found that Klaai had denied being a branch manager when
he denied having given respondent
authority to use the vehicles as he
is not the appropriate person to grant such authority. He incorrectly
drew the inference that
the applicant acted inconsistently from
documents for which no evidence was led. He was biased in favour of
the respondent. A further
gross irregularity the applicant sought to
rely on was that the commissioner could not rely on its failure to
submit evidence in
the form of trip authorisations in finding that it
had failed to discharge the onus of proof when it led
viva voce
evidence to prove the substantive fairness of the dismissal. Although
the parties had confirmed that only the substantive fairness
of the
dismissal was challenged, the Commissioner went ahead and found the
dismissal procedurally unfair too.
[6] The third respondent
denied the existence of valid grounds to have the award reviewed and
set aside. It submitted that Paul
was aware that the respondent was
using the applicant’s vehicles. It further denied that Paul
issued the respondent with
a verbal warning for using the vehicles
without authority and added that the respondent could have obtained
the necessary authority
from Mr Adonis (“Adonis”) the
transport officer. It was the respondent’s case that use of the
applicant’s
vehicles without authority was commonplace at the
Free State region. It supported the Commissioner’s conclusion
that the
applicant applied the rule against unauthorised use of its
vehicles inconsistently as the verbal authority that Klaai gave was
in breach of the applicant’s policy. It conceded that there was
no need for the Commissioner to apply the cautionary rule.
It
however, submitted that he dealt correctly with the evidence of both
Tau and Klaai.
Evaluation
[7] There is merit in the
applicant’s ground for review that the commissioner became
overly involved in the arbitration proceedings
illustrating a bias
towards the respondent. The record does not support the third
respondent’s argument that the commissioner
granted only the
necessary assistance. It is instead awash with examples of the
commissioner’s bias. The commissioner
went far beyond
asking questions of clarity from witnesses, her cross-examined the
applicants’ witness vigorously in a manner
which assisted the
respondent’s case. The respondent was not subjected to
such cross-examination. His agenda
from the manner and the
extent of his intervention is almost palpable. He was paving
the way to his pre-conceived decision
that the respondent’s
dismissal was unfair. He therefore not only descended into the
arena but assisted the respondent.
He acted in breach of
section 138(1) of the Labour Relations Act 66 of 1995 (“the
LRA”) which required him to determine
the dispute before him
fairly. The gravity of the failure to conduct the arbitration
fairly is sufficient to render the arbitration
award reviewable if
the unfairness led the commissioner to reach an unreasonable
decision. The record reveals that the commissioner’s
bias
in favour of the respondent had the effect of rendering his award
unreasonable.
[8] In
determining the reasonableness of the award, the reviewing court has
to consider the evidence before the Commissioner in
its totality and
determine whether he or she considered the principal issue, evaluated
the evidence and reached a reasonable decision.
In this regard see
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[1]
.
The court in
Herholdt
v Nedbank Ltd
[2]
made it clear that not every error committed by a Commissioner
necessarily leads to the reviewing and setting aside of an award.
It
is only when they have an effect of rendering the outcome
unreasonable that this court may interfere with the award. The Court
further held that the “
Sidumo
test” will justify the setting aside of an award on review if
the decision is “entirely disconnected with the evidence”
or is “unsupported by any evidence” and involves
“speculation by the commissioner”.
[9] The Commissioner
found that the applicant showed that the respondent’s trip from
Dewetsdorp to Van Rooyen’s border
post could not have been an
official one. He expressed the view that the applicant’s
disciplinary code provided for a final
written warning before a
dismissal. He made a finding that the applicant did not show good
cause for skipping the final written
warning and issuing a dismissal.
He concluded that the respondent should have received a final written
warning for the Dewetsdorp
trip. Amongst the mistakes of fact made by
the Commissioner which the applicant sought to rely on is his finding
that the applicant
misdirected itself in applying the sanction of
dismissal in contravention of its own policy. It submitted that the
policy provides
that the appropriate sanction for a first offence
relating to misuse of company property is a final written warning. He
gave no
valid reason for disregarding Paul’s evidence that he
gave the respondent a verbal warning for misuse of the applicant’s
vehicles. The result of the Commissioner’s failure to take that
evidence into account is that it led him to reach the decision
that
the respondent was a first offender and should therefore have been
issued with a final written warning. The incorrect finding
therefore
resulted in the Commissioner concluding that the dismissal was
procedurally unfair. The issuing of the verbal warning
is not denied
by the third respondent in its answering affidavit. The applicant’s
disciplinary code in deed provides that
the sanction for misuse of
company property is a final written warning followed by dismissal.
The Commissioner acted unreasonably
in not taking into account that
consistently with the disciplinary code the respondent was given a
warning when he first committed
the misconduct and only dismissed
when he repeated it. His finding that the dismissal was procedurally
unfair flies in the face
of the third respondent’s intimation
that procedural fairness was not challenged.
[10] Implicit in the
finding that the trip to Dewetsdorp was not official is a concession
by the Commissioner that the respondent
committed the misconduct of
misuse of the applicant’s motor vehicle. His conclusion that
the applicant failed to discharge
the onus of proof and that the
respondent’s dismissal was substantively unfair is in conflict
with his own findings which
are supported by evidence before him. So
is his decision that the sanction of dismissal was inappropriate. The
evidence before
the Commissioner was that the respondent committed
misconduct for which dismissal is the appropriate sanction to
employees who
were not committing it for the first time in terms of
the applicant’s disciplinary code. His decision that the
sanction of
dismissal was inappropriate has no basis. The error
constituted a gross irregularity which rendered his decision
unreasonable.
[11]
The Commissioner found that the applicant applied discipline
inconsistently by not taking disciplinary measures against Klaai’s
subordinates who were given verbal instead of the written authority
required in the disciplinary code for using vehicles. The purpose
of
the principle of consistence is to ensure that employees who have
committed similar misconduct are not treated differently.
It is a
principle of fairness which should not be applied rigidly. In this
regard see
SACCAWU
and Others v Irvin & Johnson Ltd
[3]
.
The Commissioner accepted that Klaai’s subordinates used the
vehicles with authority although it was granted verbally and
not in
writing as required in the disciplinary code. They acted in a manner
which is materially different from the one which led
to the
respondent’s dismissal as his manager had warned him against
using vehicles without his authority. In addition, he
was not even
aware that the use of the vehicles without his authority was
continuing. It can therefore not be said that Klaai’s
subordinates committed misconduct similar to that committed by
respondent. The Commissioner therefore committed a gross irregularity
in finding that the applicant had acted inconsistently in taking
disciplinary action against the respondent and dismissing him.
The
gross irregularity influenced his decision and rendered it
unreasonable. The commissioner dealt with the principal issue
before him. He failed to evaluate evidence and reached an
unreasonable decision. His decision therefore falls outside
the
bounds of reasonableness.
[12] In the premises, the
following order is made:
12.1
The arbitration award issued by the second respondent under case
number FS 2174/13 and dated 16 December
2013 is reviewed and set
aside.
12.2
The matter is remitted to the first respondent to be arbitrated
de
novo
by an arbitrator other than that the second respondent.
__________________
Lallie, J
Judge
of the Labour Court of South Africa
APPEARANCES:
For the Applicant:
Mr
Ellis of
Edward Nathan Sonnenbergs Inc.
For
the Third Respondent: Mr Pholeo of NEHAWU
[1]
[2014] 1 BLLR 20 (LAC).
[2]
[2013] 11 BLLR 1074
(SCA) para 25.
[3]
(1999)
20
ILJ
2302 (LAC).