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[2015] ZALCD 3
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Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v TOWU obo Singh and Others (D1124/12) [2015] ZALCD 3 (13 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
CASE NO D 1124/12
DATE: 13 JANUARY 2015
Not Reportable
In the matter between:
UNITRANS PASSENGER (PTY) LTD
t/a GREYHOUND COACH
LINES
....................................................
Applicant
And
TOWU obo KAMALRAHJ
SINGH
........................................
First
Respondent
JABU NGWANE
N.O
.........................................................
Second
Respondent
SOUTH AFRICAN ROAD PASSENGER
BARGAINING
COUNCIL
...................................................
Third
Respondent
Date heard: 4 November 2014
Date delivered: 13 January 2015
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an application to review
and set aside an arbitration award issued by the second respondent,
to whom I shall refer as
‘the commissioner’. In his
award, the commissioner found that the dismissal of the third
respondent was substantively
and procedurally unfair, and ordered his
reinstatement.
The facts
[2] Mr. Kamalrajh Singh (the employee)
was employed by the applicant as a bus driver until his dismissal on
1 August 2012. The employee’s
dismissal followed on an incident
that occurred on 25 June 2012 when a coach driven by the employee was
involved in an accident
in which a pedestrian was killed. The
accident occurred at approximately 23h20 on the night of 25 June, in
the Marburg area outside
of Port Shepstone. The charge brought
against employee was one of reckless and negligent driving. In
particular, it was alleged
that the employee had exceeded the 60 km/h
speed limit that applied – the applicant alleged that at the
time of the accident,
the employee had been driving at 84 km/h.
[3] The chair of the disciplinary
hearing concluded that the employee was guilty of the offence charged
and dismissed him. The dismissal
was upheld after an appeal hearing
conducted in July 2012. The employee disputed the fairness of his
dismissal and the matter was
referred ultimately to an arbitration
hearing conducted under the auspices of the third respondent.
The award
[4] At the arbitration hearing, the
only substantive issue in dispute was whether the employee had been
exceeding the 60 km/h speed
limit at the time that the accident
occurred. In support of the applicant’s contention that the
employee had exceeded the
speed limit, the applicant’s
operations manager, Mr. Justin Mapumulo, gave evidence concerning an
incident report that had
been prepared after the accident. The report
appears to have been prepared by one Robert. The report recorded that
the coach was
approaching a green traffic light at which point a
pedestrian walked in front of the coach. The driver had attempted to
avoid hitting
the pedestrian, but the front right-hand side of the
coach collided with the pedestrian, who was declared dead on the
scene. The
pedestrian had been under the influence of alcohol.
[5] The witness was also referred to a
document in the form of a tracking device report. That report
indicated that at 23h21:27
the speed of the coach was recorded at 84
km/h and at 23h23:13, at zero. The witness also referred to
photographs of a speed limit
sign in the area confirming that the
speed limit was 60 km/h, and of a cautionary sign indicating traffic
lights ahead in 300 metres.
[6] In his evidence, the employee
denied that he had been speeding and maintained that at the time of
the incident, he was travelling
at 60 km/h. He was aware that the
coach had been fitted with a tracker device. It was also fitted with
a tachograph device, but
no report from that device had been made
available. During cross examination, the employee conceded that the
tachograph device
would not indicate the speed at which he was
travelling at any particular time unlike the tracker device, which
relied on satellite
tracking. The employee’s main complaint
during the course of his cross-examination appears to have been that
the technician
who fitted and serviced the tracking device had not
been called to give evidence.
[7] In his award, the arbitrator noted
that the tracker activity report indicated a reading of 84km/h, but
that no evidence had
been led by the person who had compiled the data
on the document, nor was there any evidence by the person who had
installed the
tracking device on the coach. On this basis the
arbitrator concluded that the report ‘remains therefore part of
hearsay evidence
which I herein reject. For this reason alone I make
a finding that the dismissal of the applicant was substantively
unfair.’
The arbitrator went on to consider the evidence in
relation to the employee’s disciplinary hearing and noted that
the chairperson’s
decision to dismiss the applicant based only
on the reading that appeared in the activity report was irregular and
thus unfair.
Further, the chairperson, having invited the parties to
submit arguments in relation to appropriate penalty on 3 July 2012
had
not made any finding of guilt at the point at which she issued
that invitation. On that basis, the arbitrator considered the
employee’s
dismissal to have been procedurally unfair.
The grounds for review
[8] The applicant has submitted a
number of grounds for review. At the hearing of the application, it
became apparent that the real
issue in dispute relates to the
arbitrator’s exclusion from evidence of the tracker activity
report. The applicant contended
that the rejection of the report,
which constituted relevant and admissible evidence, constituted
misconduct in relation to the
arbitrator’s duties and had the
result of a decision to which no reasonable decision-maker could
come.
The applicable principles.
[9] The legal principles to be applied
are well established. This court is entitled to interfere with an
arbitration award if and
only if the decision to which the arbitrator
came is one which falls outside of the band of decisions to which
reasonable decision
makers could come on the available material. The
court is not concerned with the correctness of the decision. Insofar
as a party
might rely on the conduct of an arbitrator (for example,
having regard to the relevant evidence and disregarding relevant
evidence)
this is not in itself a basis for review – this court
is entitled to interfere only if the arbitrator’s conduct
resulted
in an award which is unreasonable in the sense referred to
above.
[10] The relevant principles were
summarised recently by the Labour Appeal Court. In Head, Department
of Education v Mofokeng and
others (JA 14 /2014, 1 October 2014) the
court, per Murphy AJA, said the following:
‘[30] The failure by an
arbitrator to apply his or her mind to issues which are material to
the determination of a case will
usually be an irregularity. However,
the Supreme Court of Appeal (“the SCA”) in Herholdt v
Nedbank Ltd and this court
in Goldfields Mining South Africa (Pty)
Ltd (Kloof Gold Mine) v CCMA and others have held that before such an
irregularity will
result in the setting aside of the award, it must
in addition reveal a misconception of the true enquiry or result in
an unreasonable
outcome.
[31] The determination of whether a
decision is unreasonable in its result is an exercise inherently
dependant on variable considerations
and circumstantial factors. A
finding of unreasonableness usually implies that some other ground is
present, either latently or
comprising manifest unlawfulness.
Accordingly, the process of judicial review on grounds of
unreasonableness often entails examination
of inter-related questions
of rationality, lawfulness and proportionality, pertaining to the
purpose, basis, reasoning or effect
of the decision, corresponding to
the scrutiny envisioned in the distinctive review grounds developed
casuistically at common law,
now codified and mostly specified in
section 6 of the Promotion of Administrative Justice Act (“PAJA”);
such as failing
to apply the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for an
ulterior purpose,
in bad faith, arbitrarily or capriciously etc. 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.
[32] However, sight may not be lost of
the intention of the legislature to restrict the scope of review when
it enacted section
145 of the LRA, confining review to “defects”
as defined in section 145(2) being misconduct, gross irregularity,
exceeding
powers and improperly obtaining the award. Review is not
permissible on the same grounds that apply under PAJA. Mere errors of
fact or law may not be enough to vitiate the award. Something more is
required. To repeat: flaws in the reasoning of the arbitrator,
evidenced in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material factors etc. must
be
assessed with the purpose of establishing whether the arbitrator has
undertaken the wrong enquiry, undertaken the enquiry in
the wrong
manner or arrived at an unreasonable result. Lapses in lawfulness,
latent or patent irregularities and instances of dialectical
unreasonableness should be of such an order (singularly or
cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the material
that was before him or her.
Analysis
[11] In my view, the arbitrator
committed a gross irregularity in rejecting the evidence constituted
by the activity report as uncorroborated
and hearsay. It will be
recalled that the arbitrator excluded the report on the basis first
that the evidence of the person who
had compiled the data in the
report had not been led and secondly, that the person who had
installed the tracker device in the
coach had not been called to give
evidence.
[12] The starting point is s 138(1) of
the LRA, which enjoins commissioners to conduct arbitration
proceedings in a manner that
deals with the substantial merits of the
dispute with a minimum of legal formalities. Of course, this does not
mean that commissioners
must necessarily accept any and all evidence
that is clearly hearsay. However, in the present circumstances,
Maphumulo, the applicant’s
witness, had confirmed what the
document was and explained that the document constituted a
computer-generated report based on continuous
satellite readings of
the whereabouts of the coach at any particular point and the speed at
which the coach was travelling.
[13] That being so, the report was not
tendered in evidence in circumstances where the probative value of
that evidence was dependent
on the credibility of a person other than
the person giving the evidence. The commissioner ought to have had
regard to Electronic
Communications and Transactions Act 25 of 2000
and to the principle that the rules of evidence must not be applied
so as to unconditionally
deny the admissibility of a computer
printout, even where the printout is not authenticated. The approach
that underpins the Act
is one which seeks to avoid all
computer-generated evidence as hearsay, and to distinguish between
evidence which depends solely
for its accuracy on the reliability and
accuracy of the computer itself, as opposed to the credibility of a
natural person. In
the present instance, the report fell into the
former category, and ought not to have been excluded summarily, as it
was, on the
basis of the rule against hearsay.
[14] What is of particular concern is
that the arbitrator did not suggest to the employer’s
representative, who was not a
lawyer, that he would be making a
negative inference from any failure to present the evidence of any
person who fitted the tracking
device to the coach, or of any person
who had compiled the data contained in the report. There was no
substantive challenge to
the veracity report (but for the employee’s
evidence that he disputed it), no warning given to any of the
witnesses, any
of the party’s representatives or at the stage
where argument was invited. In any event, it is manifestly clear that
no person
had compiled the data in the tracker activity report - the
document was computer-generated, based on satellite feeds. I also
fail
to appreciate what value would have been derived from the
evidence of a technician who installed the tracker device on the
coach.
[15] As I have indicated, the relevant
authorities require the court to consider not whether the exclusion
by the arbitrator of
the tracker activity report is in itself a basis
for review – the exclusion must have had the result of an
unreasonable decision.
In this regard, it is clear to me that had the
report been considered, no reasonable decision-maker could have
concluded that the
employee was not guilty of reckless and negligent
driving. It was common cause that the vehicle tracking device
reflected a speed
of 84 km/h at 23h21:37 and that the accident
occurred at or shortly after that time. The probabilities are
overwhelming that at
the time the accident occurred, the employee was
seeking to cross the intersection while the light remained green and
in doing
so, exceeded the speed limit.
[16] The issue of the arbitrator’s
findings in relation to procedural fairness was not convinced that
any great length during
the hearing of this application. However, a
reading of the record and of the award reveals that at least one of
the elements of
procedural unfairness found by the arbitrator related
to the merits of the case and not to any particular procedural
irregularity.
Insofar as the arbitrator’s finding is based only
on the fact that the chairperson of the hearing had invited the
parties
to submit evidence in mitigation and aggravation of penalty
prior to the conclusion of the enquiry, this does not in any way
disclose
any ‘premeditated finding of guilty’ of the
arbitrator suggests. The Code of Good Practice requires only that an
employee
be given an opportunity to state his or her case in regard
to any allegations of misconduct made by the employer, in an informal
environment and with the assistance if appropriate of a
representative. All of these elements were satisfied and there is
simply
no basis on the evidence for the commissioner’s finding.
[17] Insofar as an appropriate penalty
is concerned, there would be little point in referring this matter
back for rehearing, even
only on the issue of sanction. All of the
relevant material is before the court, and further delay in this
matter is not desirable.
The employee at the time of his dismissal
had been employed by the applicant for some seven years, he has a
family to support and
is a sole breadwinner. On the other hand, at
the time of his dismissal, the applicant was on a final written
warning for speeding.
The employee’s conduct had fatal
consequences and this must obviously weigh heavily against him. In my
view, the only appropriate
penalty given the nature of the employee’s
misconduct and all of the relevant circumstances is dismissal.
For these reasons, I make the following
order:
1. The arbitration award issued by the
third respondent under case number RPNT 1283 dated 15 November 2012
is reviewed and set aside.
2. The award is substituted by the
following:
‘The applicant’s dismissal
was substantively and procedurally fair’.
3. There is no order as to costs.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT
REPRESENTATION
For the applicant: Adv F Van der
Merwe, instructed by Hana Geldmacher Attorneys
For eth respondent: Mr. W Field,
Bernadt, Vukic, Potash & Getz.