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[2016] ZALCJHB 29
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SATAWU obo Kgwele v Commission for Conciliation, Mediation and Arbitration and Others (JR535/13) [2016] ZALCJHB 29 (3 February 2016)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 535/13
Not
Reportable
In the
matter between:
SATAWU
obo A
KGWELE
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
R MAODI
N.O.
Second Respondent
GRINROD
LOGISTICS (PTY)
LTD
Third
Respondent
Heard:
7 October 2015
Delivered:
3 February 2016
Summary:
Review application.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
This
is an application to review and set aside the arbitration award made
by the second respondent (the Commissioner) under case
number JR
535/13 dated 15 November 2012. In terms of the arbitration award the
Commissioner found the dismissal of the individual
applicant (the
employee) to be both procedurally and substantively fair. The unfair
dismissal claim of the employee was accordingly
dismissed.
[2]
The
applicant has also made an application for condonation for the late
filing of the review application which was not opposed.
In weighing
the factors relevant to the consideration of whether to grant or
refuse condonation and, in particular, the explanation
proffered by
the employee and the prospects of success, I am of the view that the
interest of justice support the granting of condonation.
Background
facts
[3]
The
employee who was prior to his dismissal employed as a driver was
charged with the following counts of misconduct:
‘
1.
Unauthorized route- driving off-route
2.
Reckless and negligent driving
On 23
rd
of March 2012 Mr Kgwele was assigned to deliver cargo in Namibia at
two locations namely, Okahandja and Walvisbay. While executing
this
assignment, it is alleged that Mr Kgwele used an unauthorized route
and drove the company vehicle in a reckless and negligent
manner
resulting in substantial damage to the vehicle and cargo.’
[4]
The
incident that led to the charges against the employee occurred when
he had gone to Namibia to deliver cargo at Walvisbay and
Okahandja.
After delivering the cargo at Walvisbay, he proceeded to OKahandja,
an area he was not familiar with.
[5]
On
his way to Okahandja, he came across a police roadblock where after
all the necessary documents were checked, he enquired from
them as to
whether he was on the correct route to Okahandja. After confirming
that he was on the correct route, they inform him
that there are
roadworks ahead and that he will encounter a gravel road.
[6]
After
travelling some distance on the gravel road he came across a drift
and that was early evening. As he was not sure whether
it was safe to
cross he parked the truck and slept there. The following morning
after observing a number of cars crossing the drift
and in
particularly a 4x4, he decided to also cross. In the process of
crossing the drift, the truck got stuck resulting to the
damage both
to itself and the cargo.
[7]
The
employee was found not guilty of the first charge but guilty of the
second and dismissed for that reason.
[8]
Aggrieved
by the decision to dismiss the employee, the union referred a dispute
concerning an alleged unfair dismissal to the CCMA.
The ultimate
outcome of that referral was that the Commissioner as stated earlier
found the dismissal to have been for a fair reason.
[9]
In
support of its version that the dismissal of the employee was fair,
the third respondent led the evidence of two witnesses, namely;
Mr
Matkovich, the regional manager, and Mr Bhika, the branch manager and
the initiator during the disciplinary hearing.
[10]
Mr
Bhika testified that the employee travelled for more than 157 km on
gravel road whilst knowing that he was prohibited from doing
that. He
testified that drivers in South Africa are prohibited from driving on
gravel road because of the risk to the cargo and
their safety. The
drivers are also, according to him, informed during training that
they are not allowed to drive on the gravel
road unless if they had
prior approval from the fleet controller. If unable to reach the
fleet controller through the cellphone
when the need to drive on the
gravel road arises, he can do so through pressing the panic button
which will alert the fleet controller
through an alarm of the need to
contact the driver. He also testified that the employee did not press
the panic button when he
went onto the gravel road.
[11]
In
relation to the damage to the truck occasioned by the incident in
question, Mr Bhika testified that out of eight units which
the
employee had on the carrier four were damaged and the costs thereof
was too high. During cross examination, he estimated the
damage at
R1.2 million. He would, however, not dispute that the damage was,
during the opening statement estimated at between R700
000.00 and
R800 000. 00 by the third respondent’s representative.
[12]
The
focus of the testimony of the second witness of the third respondent,
Mr Matkovich, was on the cases relied on by the employee
in his claim
of inconsistent application of discipline by the third respondent.
He, in essence, contended that the third respondent
applied the same
process in each case of discipline. In relation to the alleged
inconsistent application of discipline he testified
that what
differentiated the sanction in disciplinary case is the ‘level
of negligence and mitigating circumstances.’
[13]
Initially
Mr Motkovich stated that drivers are not allowed to travel on gravel
roads. However, when put to him that the third respondent
has a
client in Limpopo who can only be reached through the gravel road, he
then stated that that was done only under supervision.
When
questioned further on this issue he stated that he was a regional
manager and that the issues relating to the drivers are
matters for
the depot managers. He could not dispute that the road leading to the
third respondent’s client in Ellisrus is
a gravel road.
The
arbitration award
[14]
After
recording in the arbitration award that the fairness of the procedure
was not an issue, the Commissioner recorded the issues
in dispute in
the following terms:
‘
i.
The Applicant denied having commited the misconduct as set out in the
disciplinary
enquiry notification form;
ii.
In the event I find that the Applicant committed the misconduct, the
rule
or standard has been inconsistantly applied by the Respondent.
iii.
The
Applicant contended that in the event that I find that he did commit
the offences as set out in the disciplinary notification
form, then
the dismissal was inappropriate.’
[15]
The
Commissioner then set out the principles governing both recklessness
and negligence. He starts off by indicating that although
recklessness and negligence are different concepts, they are,
however, interrelated. The concept of negligence and recklessness
is
stated in the arbitration award in the following terms:
‘
65
Without restricting the ordinary meaning of the word “recklessly”
any person
who drives a vehicle in wilful or wanton disregard for the
safety of persons or property shall be deemed to drive that vehicle
recklessly. The nature, condition and use of the road upon which the
contravention is alleged to have been committed must be taken
into
consideration.
66
An employee is negligent if his or her conduct deviates from the
conduct a reasonable
man would have adopted in the same
circumstances. Here, three elements have been considered:
Ø
Would
a reasonable man in the particular circumstances of the Applicant
have foreseen the reasonable possibility that his conduct
would cause
damage to the truck and cargo ;
Ø
Would
a reasonable man have taken reasonable steps to prevent such damage
from occurring
Ø
If
the answer to the above question are in the affirmative, and the
Applicant did not foresee such damage and did not take such
steps, he
will have been negligent.‘
[16]
In
applying the facts of this case to the above principles, the
Commissioner made the following findings:
‘
(67)
I find that the Applicant drove the vehicle of the Respondent in a
reckless and negligent manner resulting
in substantial damage to the
company vehicle and cargo. No reasonable person driving a truck
with cargo on it could have
crossed that drift.
(68)
The Applicant failed to exercise the standard of care and skill
that can be expected of
an employee with his degree of skill required
for his job as driver. Because it was raining he could have either
waited for assiastance
or attempt to make a u-turn, no matter how
small the road was, instead of deciding to cross a drift and risk
damaging the property
of the Respondent.
(69)
He was reckless and disregarded the safety of the property of the
Respondent by crossing the
drift. He negligently compared his truck
and cargo on it with a 4×4 vehicle and other vehicles that he
allegedly saw crossing
the drift.
(70)
The rule that an employee must perform his or her service with care
is a clearly established
common law duty. The Applicant’s
lack of care and skill manifested itself in an act or ommission that
caused loss to
the Respondent.’
[17]
In
dealing with the issue of inconsistency in relation to the fairness
of the dismissal, the Commissioner made reference to the
Code of Good
Practice: Dismissal. After stating the principles governing
inconsistency (or the parity principle), the Commissioner
lists and
summarises the disciplinary cases which the employee relied on in
contending that the disciplinary proceedings were inconsistently
applied in the following terms:
‘
Mr
Makau was charged with damage or loss through negligence and his
sanction was first written warning valid for six months, short
summary of accident was that the carrier with units on top collided
with an old train bridge on N17, approximetely 10km from Leandra.
·
Mr
Jeffery Rangako was charged with poor work performance and his
sanction was final written warning valid for six months, short
summary of accident was that he had 6 claims in one year;
·
Mr
Piet Mahlangu was charged with negligence, leading to an accident
causing damage to units and his sanction was final written
valid for
twelve months, short summary of accident was that he did not see
hanging Telkom tables, which caught unit in top of the
carrier.
·
Mr
Frans Motlanthe was charged with negligence, leading to an accident
causing damage to units and his sanction was final written
warning
valid for twelve months, short summary of accident, the unit he was
driving started cutting out, due to fuel problems,
he tried to apply
the brakes, but the jerking of the unit collided with the gate;
·
Mr
Richard Lindze was charged with not taking proper care when
descending the mountain, short summary of the accident was that a
bird/bat/object flew into cab and attacked the driver. Negligence
could not be be proven beyond reasonble doubt.’
[18]
In
applying the facts of this case to the principle governing
inconsistency, the Commissioner found that the cases which the
employee
relied on in support of his contention were ‘not
sufficiently similar to the case at hand’. He further found
that none
of the employees who are alleged to have been treated
differently were charged with recklessness and negligent driving and,
furthermore,
that the circumstances surrounding those cases were
different to those in the present matter.
[19]
It
was for the above reasons that the Commissioner found that the third
respondent did not apply discipline in relation to the employee
inconsistently. He also founded the rule applied by the third
respondent in the case of the employee to have been important as
it
was designed to protect its property. And in relation to the
seriousness of the offence, the Commissioner found that it had
been
aggravated by the fact that he drove the truck with the cargo on it.
The
grounds of review
[20]
In
summary the grounds of review upon which the employee relies are that
the Commissioner:
1.1
was bias, in that interfered with the proceedings, assisted
respondent this case and cross-examined
the employee;
1.2
did not apply his mind to the hearsay evidence, in reaching his
conclusion that the dismissal
was fair reason;
1.3
misconceived facts and failed to apply his mind to the principle
governing inconsistency
in disciplinary matters, and
1.4
failed to ensure that proper oath was taken in relation to the third
respondent's witness.
The
legal principles
[21]
The
test to apply when considering a review application is that of a
reasonable decision maker which requires that an inquiry be
conducted
into whether the award which is the subject of the review is one
which a reasonable decision maker could not reach. In
terms of s 145
of the Labour Relations Act (the LRA), an arbitration award can be
reviewed on the grounds of misconduct, gross
irregularity and
exceeding the powers of the Commissioner.
[22]
The
Labour Appeal Court in
Herholdt
v Nedbank Ltd
[1]
explained
that the reasonable decision maker test does not extinguish the
grounds of review set out in s 145(2) of the LRA but that
those
grounds are suffused into that test.
[23]
In
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
,
[2]
in
restating and explaining the reasonable decision maker test, the
Court had the following to say:
‘…
A
review court must ascertain whether the arbitrator considered the
principal issue before him/her, evaluated the facts presented
at the
hearing and came to a conclusion which was reasonable...’
[24]
In
explaining what the reasonable decision maker test entails, the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[3]
stated
that:
‘
[78]
In approaching the dismissal dispute impartially a commissioner will
take into account the totality
of circumstances. He or she will
necessarily take into account the importance of the rule that had
been breached. The commissioner
must of course consider the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis
of the employee's challenge to the
dismissal.
There
are other factors that will require consideration. For example, the
harm caused by the employee's conduct, whether additional
training
and instruction may result in the employee not repeating the
misconduct, the effect of dismissal on the employee and his
or her
long-service record. This is not an exhaustive list.
[79]
To sum up. In terms of the LRA, a commissioner has to determine
whether a dismissal is fair or
not. A commissioner is not given the
power to consider afresh what he or she would do, but simply to
decide whether what the employer
did was fair. In arriving at a
decision a commissioner is not required to defer to the decision of
the employer. What is required
is that he or she must consider all
relevant circumstances.’
[25]
The
Court further held that the duties of a Commissioner in determining
the fairness of a dismissal includes amongst other things
having
regard to the
totality
of circumstances of the case, the importance of the rule that had
been breached, the reason the employer imposed the sanction
of
dismissal, the basis of the employee’s challenge to the
dismissal; the harm caused by the employee’s conduct; and
whether additional training and instruction may result in the
employee not repeating the misconduct. These factors includes the
Commissioner having to consider the effect of dismissal on the
employee and his or her service record.
[26]
The
above factors play an important and critical role in the
consideration of whether the dismissal was a fair sanction. In this
regard, it has to be borne in mind that in terms of section 192(2) of
the LRA, the onus is on the employer to prove that the dismissal
is
fair.
[27]
In
a dismissal case, the Commissioner conducts a two stage inquiry; i.e
involving firstly; having to determine whether the employee
had
breached a workplace rule and secondly; if found that the employee
had breached the rule whether the sanction of dismissal
was fair in
the circumstances of the case. The second inquiry includes having to
determine whether the trust relationship between
the parties have
broken down as a result of the breach.
[28]
I
now turn to the principle governing the inconsistent application of
discipline. It is trite that disciplinary inconsistency is
not a rule
but rather part of the principle of fairness whose purpose is to
ensure employees are measured by the same standard
and that
discipline is not capricious.
[4]
[29]
In
NUM
and Another v Amcoal Colliery t/a Arnot Colliery and Another,
[5]
in
dealing with the issue of the alleged inconsistency of discipline,
the Court said the following:
‘
The
parity principle was designed to prevent unjustified selective
punishment or dismissal and to ensure that like cases are treated
alike. It was not intended to force an employer to mete out the same
punishment to employees with different personal circumstances
just
because they are guilty of the same offence.’
Gross
irregularity
[30]
In
dealing with the grounds of review in this matter, I deal first with
the allegation of gross irregularity which the Commissioner
is
alleged to have committed. It is trite that commissioners have wide
powers in determining the manner in which they wish to conduct
the
arbitration proceedings in terms of s 138 (1) of the LRA. The powers
are designed to ensure that disputes are speedily and
fairly
determined.
[31]
There
are generally two approaches which a Commissioner can adopt in
determining the manner in which arbitration proceedings are
to be
conducted; adversarial and inquisitorial. At times, Commissioners do
combine the two approaches. Inquisitorial approach entails
a more
involvement of the Commissioner directing the proceedings and asking
questions of clarity. In the adversarial approach,
the involvement of
the Commissioner is limited to managing the process and ensuring
compliance with all relevant rules.
[32]
The
basic principle of our law is that whatever the approach the
Commissioner adopts in exercising powers given to him or her in
terms
of s 138 (2) of the LRA, the proceedings must be conducted in a fair,
consistent and in an even-handed manner.
[6]
In
dealing with this issue, Francis, J in
Vodacom
Services Provider Co (Pty) Ltd v Phala NO and Others
,
[7]
had
the following to say:
‘
A
commissioner is required to conduct the proceedings in a fair,
consistent and even handed manner. A commissioner cannot assist
or be
seen to assist, one party to the detriment of the other. A
commissioner cannot put to witnesses his propositions, should
not
interrupt the witnesses’ answers, challenge the consistency of
a witness with his own evidence, indicate that he doubted
the
witness’s credibility, or make submissions regarding the
construction of evidence.’
[33]
The
issue that has arisen based on the complaint of the applicant is that
the Commissioner interfered with the proceedings and,
in doing so,
exceeded the bounds of fair, consistent and even handed manner of
conducting arbitration proceedings.
[34]
The
reading of the record of the arbitration proceedings reveals two
instances in which I find the Commissioner to have exceeded
the
bounds of the powers envisaged in s138(2) of the LRA. In the first
instance, at the completion of the testimony of the third
respondent's witness, its representative indicated that he was
closing the case. The Commissioner then enquired as to whether he
would be calling another witness. In response the representative of
the respondent indicated that he would not be calling any further
witnesses.
[35]
The
Commissioner then adjourned the matter for a short period, after
which he pursued the issue of whether the third respondent
was sure
it wished to close its case. The matter was then postponed after the
representative of the third respondent changed his
mind and indicated
that he would be calling another witness which he did not have ready
at that point.
[36]
It
is apparent that the postponement referred to above was initiated by
the Commissioner and was for the purpose of affording the
third
respondent the opportunity to arrange attendance of the witness it
never intended calling but for the manner in which he
(the
Commissioner) intervened.
[37]
Whilst
it is generally accepted that commissioners do have a duty to assist
lay litigants, they must do so in a fair, balanced and
transparent
manner. They cannot do so in a manner that seeks to assist a litigant
in the presentation of his or her case. In other
words, the
assistance provided, where needed, should not be such that it
provides a strategic approach to and advances or advantages
the case
of a litigant.
[38]
In
the present instance, it is apparent from the reading of the record
that the approach adopted by the Commissioner sought to send
a clear
message to the third respondent’s representative that the case
of the third respondent was incomplete and that it
was not strategic
to close the case without calling another witness. In doing so, he
advanced and advantaged the case of the third
respondent.
[39]
In
my view, the approach adopted by the Commissioner created a clear
basis for the perception of bias on the part of the employee.
The
same applies to the manner in which he posed questions to the
employee. The question posed, in my view, strayed outside the
parameters envisaged in the powers in s 138(2) of the LRA. The
questions which were posed were not clarity seeking on the case
of
the employee but rather sought to advance the case of the third
respondent at the expense of that of the employee.
[40]
In
light of the above facts, I find that, objectively speaking, the
employee, as an informed litigant, reasonably perceived or reasonably
apprehended bias on the part of the Commissioner.
[8]
Accordingly,
the decision of the Commissioner stands to be reviewed for this
reason alone.
[41]
The
question that then arises from the above finding is whether the
matter should be remitted to the CCMA for a hearing
de
novo.
The answer to this question lies in the consideration of the
following: (a) the delay that would be occasioned by remitting the
matter to the CCMA, (b) whether there are sufficient material before
the Court upon which the prejudice occasioned by the approach
adopted
by the Commissioner can be remedied and (c) whether the court is in a
good position to substitute the decision of the Commissioner.
[42]
The
dismissal of the employee occurred in May 2012, some three and a half
years ago. In my view, if the matter was to be remitted
to the CCMA,
that will cause a further delay therefore prejudicing the parties,
amongst others, by delaying finality of the matter.
[43]
The
other consideration in determining whether to substitute the decision
of the Commissioner is whether there is sufficient material
on the
record to assist the court in that regard. Having read the record I
satisfied that the material before the court is
sufficient to
assist in considering substitution.
[44]
The
case of the third respondent based on the testimony of Mr Bhika was
that the employee was negligent because he drove the truck
on the
gravel road in contravention of the rule that drivers are not allowed
to drive on such roads. The other aspect of the third
respondent’s
case is that the employee should have phoned or pressed the panic
button as soon as he entered the gravel road.
[45]
The
employee disputed the existence of the rule prohibiting drivers from
driving on the gravel road. He contended in the alternative
that if
such a rule existed it was not consistently applied.
[46]
It
is trite that the duty to show the existence of rule or standard of
the workplace or that an employee ought to have known about
the rule
rests with the employer. In the present instance the third respondent
had a duty to show the existence of the rule and
that it was
consistently applied. In evidence in chief, both witnesses of the
third respondent testified about the existence of
the rule
prohibiting drivers from driving trucks on gravel roads. They,
however, could not sustain that version during cross-examination.
It
was in this respect not disputed that certain of the third respondent
customers, such as Nissan in Elisrus can only be reached
through the
gravel road. The version changed during cross examination to say that
drivers can drive on gravel roads with permission
from the controll
officer.
[47]
Mr
Bhika’s version, during cross examination, was that if drivers
were to drive on the gravel road, they were to ensure that
they did
not exeed the speed limit set down for travelling on a gravel road.
[48]
In
my view, had the Commissioner properly applied his mind to the above
facts, he ought to have found that the third respondent
had failed to
discharge its duty of showing that there was a rule prohibiting
drivers from driving on gravel roads. Even if it
was to be found that
the rule governing driving on the gravel road existed, the matterial,
before the Commissioner, indicates that
it was not consistently
applied and thus it was unfair in the circumstances to dismiss the
empployee.
[49]
The
other aspect of the third respondent’s case is that the
incident would have been avoided had the employee pressed the
button
when he enterred the gravel road. The case of the mployee is that he
pressed the panic button when he enterred the gravel
road but there
was no response from the control room. He also tried to contact the
controll room through his celphone but was unsuccessful
because there
was no cellphone reception in the area.
[50]
The
third respondent contended that it was not necessary for the
Commisoner to have regard to the testimony of the employee
that
he pressed the panic button when he enterred the gravel road because
that version was not put to the third respondent’s
witness. The
employee cannot be blamed for this because it was the Commissioner
who stopped his representative from cross
examamining on the
issue. In this respect the Commisioner inidcated that he was not
interrested in the issue of the panic button
but only on whether the
carrier was negligently and recklessly driven.
[51]
It
would appear that in as far as the seriousness of the misconduct was
concerned, the third respondent attached considerable weight
to the
loss suffered as a result of the inicident. It was inidcated, in this
respect, during the opening statement that evidence
would be led
showing that the loss suffered as a result was between R700 000.00
and R800 000,00.
[52]
Mr
Bhika presented no evidence about the loss suffered as a result of
the incident during his evidence in chief. He testified during
cross
examination that the eight vehicles which were on the carrier were
insured and four of those were written off because water
went into
their engines and that R204 000,00 was paid for towing the carrier
out of the river. He estimated the repair to the carrier
at R1.2
million and this was based on what he was told by a person in the
maintance department who was never called to testify
on that issue.
[53]
In
my view, the Commissioner failed to take the above into account when
he made the finding that the employee’s conduct caused
the
third respondent “substantial loss.” Had the Commissioner
applied his mind to the facts before him, he ought to
have found that
the third respondent had failed to show the seriousness of the
offence based on the loss sufferred.
[54]
As
concerning inconsistency of discipline, it is trite that the employee
has to provide the details of the case/s he or she is relying
on in
pleading inconcistency as a ground for the alleged unfairness of the
dismissal. In the present matter, it is apparent from
the record that
the employee did provide sufficient information to enable the third
respondent to investigate those cases which
the employee relied on
making his allegation.
[55]
Mr
Bhika conceded, during cross examination, that the drivers who the
employee referred to in his allegation of inconsistency were
charged
with negligent and reckless driving. He also conceded that they were
not dismissed for that but were given final written
warning valid for
periods ranging from six to twelve months. He further testified that
the other drivers who were charged with
negligence and reckless
driving were not dismissed because the damage caused by their
reckless and negligence was less than that
caused by the employee.
[56]
Mr
Matkovich testified about the issue of inconsistency. He
distinguished the case of the applicant on the following basis; the
difference in the level of negligence, mitigating circumstances, the
loss incured as a result of the incident and the different
levels of
the insurance cover and the amount paid to the insurance as excess.
However, he conceded that he was not involved in
any capacity in the
six cases which the employee relied on in his alleged inconsistency
and further that he did not witness anything
in the applicant’s
case.
[57]
In
the case of Mr Lindzie where the damage resulting from the negligent
driving amounted to R2 million, Mr Matkovitch distinguished
that case
from that of the employee on the basis of a mitigating factor. The
mitigating factor according to him was that the cause
of the accident
was caused by a bird that flew into the truck causing the driver to
lose control.
[58]
It
is clear from the above that the employees whose cases were relied
upon by the employee in his claim of inconsistency were all
charged
with the same offence as his, namely, negligence and reckless
driving. They were found guilty but not dismissed because
of various
mitigating factors. The same did not apply to the employee in that
his years of service with a clean disciplinary record
were not taken
into account. The circumstances within which the accident occurred
were also not considered. This was the first
time for him to travell
to Okahandja. As mentioned earlier, he confirmed with the police that
he was on the correct route. He arrived
at the drift in the early
evening. He did not cross the drift then because he was unsure about
the risk of doing so. He waited
until the following morning when
after seeing other cars crossing, he proceeded to cross. It is
apparent that he made a judgment
error in assuming that because other
cars were crossing he would also be able to cross. His judgment was
based not only on the
cars that crossed but also that he had
previously, whilst in the employ of the third respondent crossed
three drifts.
[59]
In
light of the above, I find that the decision made by the Commissioner
is not one which a reasonable decision maker could have
reached and
thus his arbitration award is reviewable. I also do not see any
reason why costs should not follow the results.
Order
[60]
In
the premises I make the following order:
1.
The
late filing of the review application is condoned.
2.
The
arbitration award made by the second respondent under case number JR
535/13, dated 15 November 2012, is reviewed and set aside.
3.
The
arbitration award of the second respondent is substitute as follows:
a.
The
dismissal of the applicant Mr Kgwele was substantively unfair.
b.
The
respondent, Grinrod Logistics (Pty) Ltd is ordered to reinstate the
applicant retrospectively to the date of dismissal without
loss of
benefits.
c.
The
applicant is issued with a final written warning valid for a period
of six months.
4.
The
third respondent is to pay the cost of the applicants.
__________________
Molahlehi,
J
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
D.M Majare of
Masondo Attorneys
For
the Respondent:
G.M Kirby-Hirst of Macgregor Erasmus
[1]
[2012]
9 BLLR 857
(LAC) at para 14.
[2]
[2013]
11 BLLR 1074
(SCA) at para 16.
[3]
[2007]
12 BLLR 1097(CC)
at paras 78-79.
[4]
See
Gcwensha
v CCMA
(2006) 3 BLLR 234
(LAC) and
SACCAWU
and Others v Irvin Johnson Ltd
(1999) 20
ILJ
2303 (LAC).
[5]
[2000]
8 BLLR 869
(LAC)
at
para 19.
[6]
County
Foods Pty Ltd v Theron NO and Another
(2002) 21
ILJ
6249 at para 8.
[7]
(2007)
28
ILJ
11335
(LC) at para 15.
[8]
See
Sasol
Infrastructure v Safafe and Others
(2015) 36
ILJ
655 (LAC) at para 61.