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[2016] ZALCJHB 276
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Mogodiseng v Commission for Conciliation, Meditation and Arbitration and Others (JR160/14) [2016] ZALCJHB 276 (3 March 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case number: JR 160 /14
In
the matter between
RAMOHANE
JOEL
MOGODISENG
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
RUSSEL
MOLETSANE N.
O
Second Respondent
METROBUS
Third Respondent
Heard:
03 March 2016
Judgment:
03 March 2016
Date
edited and signed: 26 July 2016.
EX-
TEMPORE
JUDGMENT
STEENKAMP,
J
:
[1]
This is an application by the employee, Mr
Ramohane Joel Mogodiseng, to have an arbitration award of
Commissioner Russell Moletsane,
a Commissioner of the CCMA, reviewed
and set aside. It arises from the dismissal of the employee by
Metrobus after it was
initially found that he had committed three
counts of misconduct. For the sake of completeness I will quote
them as they
appear in the notice of a disciplinary hearing.
“
Charge
1
You
committed an act of gross dishonesty in failing to conduct yourself
with honesty and integrity in breach of clause 1.2.5 of
Metrobus
Disciplinary Code and Procedure in that, during the month of November
2011, you instructed Felicia Harper to sell Metrobus
property at a
scrapyard around Roodepoort. You then instructed her to buy
steel and wire mesh and then instructed Nkosi Ncube
to make you a
braai stand. Further to that, you instructed her to buy meat
and other goods for your year end braai at the
Roodepoort depot,
which was held on the 2 December 2011, where you were present and
part of.
Charge
2:
You
committed an act of gross dishonesty in that, when you were asked by
the Acting Group Technical Manager about the selling of
Metrobus
property for the braai, you lied and told him that you were not there
and you have no knowledge of such incidents because
you were on
leave, which was not true.
Charge
3:
You
are charged in terms of Metrobus Disciplinary Code and Procedure,
Clause 2.7.10, which states that any act of misconduct which
could
constitute a just cause for dismissal, [
sic
]
in that you instructed Ted Henry and Felicia Harper in 2011 to sell
Metrobus property at the scrapyard and instructed them to
buy KFC
[Kentucky Fried Chicken] for them and yourself instead of paying the
money into Metrobus.”
[2]
The employee was in the position of
Workshop Manager. He earned a substantial salary of just under
R35 000 per month.
His dismissal was confirmed on appeal.
At the arbitration, as he did at the disciplinary hearing, he denied
that he had committed
any misconduct. The arbitrator found
against Metrobus on charge 1. He found that it had not
discharged the onus of
showing that the employee had committed the
misconduct in question. However, on charges 2 and 3, he confirmed
that the employee
did commit the misconduct and he found that the
dismissal on that basis was fair.
[3]
There is no cross review, which means that
the finding of the arbitrator on charge 1 is accepted. That
charge therefore becomes
largely irrelevant, except insofar as the
evidence led in respect of that charge may have some peripheral
relevance to the findings
on witnesses’ credibility.
[4]
The arbitration was a lengthy one that
stretched over 10 days and the arbitrator heard the evidence of
numerous witnesses.
Both parties were legally represented by
the same attorneys who appeared in court today, namely Mr Jabulani
Gwebu for the employee
and Ms Helena Strijdom for Metrobus.
[5]
The review application is also a lengthy
one, comprising some 60 pages, in which the applicant, Mr
Mogodiseng, with the help
of his attorneys, carefully parses through
the evidence led over 10 days and comprising 1 488 pages.
Having done so,
he then sets out wide-ranging but vague grounds for
review. Those grounds are that the arbitrator:
“
(1)
Failed
to make an appropriate assessment of the evidence placed before him,
particularly my evidence, and disregarded the contradictory
evidence
of the third respondent’s witnesses;
(2)
Failed to come to grips with the principles surrounding the
resolution
of factual disputes of facts with proper assessment of the
evidence;
(3)
Inappropriately favoured the evidence presented by Mr Muller and Ms
Harper
on behalf of the third respondent over mine applicant [
sic
].
This is tantamount to bias on the part of the second respondent as
against me as he assumed that I am not a reliable witness
without any
basis at all;
(4)
Failed to evaluate the probabilities of the evidence tendered before
him.
The probabilities are overwhelming, that the third
respondent’s witnesses had lied as the evidence is totally
different (if
not available) [
sic
] to what they stated at the
arbitration proceedings and during an internal investigation
conducted by an independent person from
Tokiso;
(5)
Failed to take material evidence into account or has [
sic
]
regard to evidence that is irrelevant, which resulted in me being
prejudiced as a consequence;
(6)
Reached conclusions… which are either nonsensical [
sic
]
or clearly wrong, which suggests a lack of understanding of the
evidence placed before him or the assessment of such evidence
(or
both)…
(7)
Committed misconduct in relation to the duties of the second
respondent
as an arbitrator;
(8)
Committed a gross irregularity in the conduct of the arbitration
proceedings;
and
(9)
The decision was not rationally connected with the information before
the second respondent and with the reasons given for it.”
[6]
Despite these wide-ranging grounds, Mr
Gwebu
, for
the applicant, essentially argued today that the conclusion reached
by the arbitrator was one that a reasonable arbitrator
could not
reach with regard to his findings on charges 2 and 3. I will
deal with each of those.
[7]
Charge 2
,
as the reader will remember, is the one relating to whether the
employee had lied about having been at the braai on 2 December
2012.
The arbitrator correctly posed the question in paragraph 68 of his
award as follows:
“
The
issue here is whether the Acting Group Technical Manager (Muller)
asked the applicant about selling of the Metrobus property
for the
yearend braai/party, and the applicant replied by saying he was not
at the braai as he was on leave.”
[8]
The applicant’s case initially was
indeed, and remains, that he was not at the braai. As Mr
Gwebu
put it in his opening address at the arbitration, and I quote:
“
In
respect of charge 2, the applicant will, you know, emphatically deny
that he ever lied to the Group Technical Manager and he
will testify
that he was not party to the party, the Christmas party that was held
on 2 December, because that was on a Friday
and he was, he left at
about 12:00, so he does not even know when the party started.”
[9]
That version eventually transmogrified into
one where the applicant conceded that he was indeed at the braai, but
he said he was
only there for a short time and he made a short speech
to those present before he went on leave after 12:00 noon.
Surprisingly
though, that was not the version that his attorney, Mr
Gwebu, put to Muller under cross-examination. Muller testified
consistently
that what transpired between him and the employee was
that the employee told him that he was not at the braai at all.
The
following is a transcript of what transpired between Mr Muller
and Mr Gwebu in cross-examination: “
“
MR
MULLER
:
And then he said on the day of the braai, he was not in and he was on
leave.
MR
GWEBU
:
And then he went further and said on the day of the braai, he was not
there.
MR
MULLER
:
He was on leave.
COMMISSIONER
:
What did he say? Did he say on the day of the braai, he was on
leave?
MR
MULLER
:
Yes, the day of the braai, he was on leave. He says he was not
even there.”
In
the face of that emphatic version, Mr Gwebu then again says to
Muller:
“
MR
GWEBU
:
And then he went further and said: ‘On the day of the braai, I
was not there, I was on leave.’
MR
MULLER
:
Yes.
MR
GWEBU
:
Okay, and this is what you said he lies about it? What is it
that he lied about?
MR
MULLER
:
Okay, on the day of the braai, he was at work. He only went on
leave that Monday. On the day of the braai, was
the day that he
may be knocked off a little bit earlier than usual, but he was at the
depot.”
[10]
And Muller goes on to say that the employee
lied to him because contrary to what he had told him, he was in fact
there on 2 December.
Mr Gwebu then puts his client’s
version to Muller in some detail. He says the following:
“
MR
GWEBU
: Okay, now I put it
to you that the applicant will deny that. First, his
understanding of your discussion with
him, you came to his office and
you said: ‘You know, Joel, the party you had at Roodepoort, I
understand it was held from
the proceeds of the sales of the brake
drums,’ and he told you, he said: ‘No, I know nothing
about that,’ and
as far as he knows, there was a contribution
of R50 for the party and secondly, he said as far, and he was anyway
not involved
with the party because he left early, at 12:00 because
he was going on leave, so he knows nothing what went on in the
party.
So he never participated in that party. What would
you say to that, if this recollection is what he said about that?”
Muller’s
response again is unequivocal:
“
MR
MULLER
: I say that part of that
statement is correct, Joel maintained that he had nothing to do with
the sale of scrap, that is
why I said to you, after the allegations
and the statements of people, I also know that is not true and then
he never said to me
he was not on duty, he said he was on leave and I
believe that Joel was on leave. He said to me: ‘Nick, I
was not there,
I was on leave.’ I even had some other
discussions with other people, I said: ‘Hey, Joel was not
there, he was
on leave,’ only to find out later that, no, it is
not the truth.
MR
GWEBU
: So his testimony is that
he told you that: ‘No, I was not party to these things because
I was leaving at 12:00, I
was going on leave.”
[11]
What is significant about that fairly
lengthy debate between Mr Gwebu and Mr Muller is that Mr Gwebu does
not put to Muller the
version that, indeed, the employee was at the
party, albeit for a short time. He also does not put that
version to Ncube,
who testified in some detail about Mogodiseng’s
presence at the party. Ncube says that he joined the party
shortly
after 11:00, when it was already in full swing. When he
arrived there, Mogodiseng was already there with a glass in his hand
and drinking something. In cross-examination, Mr Gwebu made
much of whether his client was drinking alcohol or not, but again,
he
does not put the version referred to above to Mr Ncube.
[12]
It is against that background that the
arbitrator finds on a balance of probabilities that the employee did
lie to Muller.
He notes, quite correctly, that the version of
Muller and that of the applicant are mutually destructive and: “I
therefore
have to unbundle this issue on the credibility issue.”
He then notes that Mr Gwebu, in his opening address, put the
version
of the applicant, that he had left at 12:00 and that he did not even
know when the party started. The arbitrator
then notes the
following:
“
During
cross-examination, the applicant finally accepted that the party
started at 10:00 AM, and that by the time he got there,
at around
10:00 AM, the party had been in full swing. In my view, when
the applicant claimed that he did not participate
in the party, he
was very economical with the truth.
The
applicant contributed R50 in order to participate in the party, he
was drinking something at the lapa and he also gave a short
speech at
the very same party. In my view, given the applicant’s
inconsistent versions regarding the party, I am of
the view that
Muller’s version is more probable than that of the applicant
and was therefore correctly found guilty as charged.”
[13]
In doing so, the arbitrator did exactly
what he was enjoined to do. He took into account the
credibility of the two parties,
the probabilities and their
credibility, and he came to a conclusion that is not so unreasonable
that no other arbitrator could
have come to the same conclusion.
The award is not reviewable on that ground.
[14]
I then turn to the evidence on
charge
3,
that is the allegation that the
employee had instructed Harper and Harry to sell scrap metal on 26
August and used the proceeds
to buy Kentucky Fried Chicken for
themselves and the employees. Mr
Gwebu
,
in his argument, took issue with two aspects of that allegation.
Firstly, he made a fine distinction between rubble and
scrap metal.
Secondly, he admitted that his client had permitted Harper and Harry
to sell Metrobus property to the scrap
dealer; however, he said that
his client had not instructed them to do so.
[15]
Dealing with the first issue: As Ms
Strijdom
correctly pointed out, this fine distinction between rubble and scrap
metal only emerged for the first time late during the evidence
at
arbitration. It was not raised at the disciplinary inquiry or
at appeal. Even in his opening address at the arbitration,
once
again, Mr Gwebu did not make that distinction and did not state that
that would be his client’s version or his defence.
Instead, he says in his opening address:
“
No,
it is this one of, he agrees that, but he did not instruct. He
said that Mr Ted Henry came and requested permission from
him to say
can they go and sell the scrap metal and buy food for them and then
he okayed that.”
[16]
Clearly, it was not Mr Gwebu’s
instructions at the outset to take issue with the question whether it
was scrap metal or rubble
that had been sold. The only issue was
whether his client had instructed the other two to sell the scrap
metal or whether he had
simply given them permission to do so.
Also, as Mr
Gwebu
conceded in his argument today, he never put it to Felicia Harper,
with whose evidence he took issue, that it was rubble and not
scrap
that she had sold to the scrapyard. Ms
Strijdom
,
in fairness to the witness, did in fact ask her about that. Ms
Strijdom deals with the issue of the scrap metal and then
she says to
Ms Harper:
“
MS
STRIJDOM
: Okay, now Felicia,
Mr Mogodiseng says Ted Henry asked him to sell rubble and an
example of broken door handles. What
is your comment on that?
MS
HARPER
: No. Door handles?
MS
STRIJDOM
: That is the example
that was given, it may just be an example of what is considered
rubble.
MS
HARPER
: No.”
[17]
And then the exchange goes further for Ms
Harper to make it clear that the scrapyard dealing in scrap metal
never had any issue
with the type of product that Harper and Harry
sold to them, thus leading to the inference on the probabilities that
it was indeed
scrap metal that was sold and for which the scrapyard
paid them R1 000.
[18]
It is not common cause that those proceeds
were used to buy KFC rather than giving it back to Metrobus, but as
Ms De Beer testified,
the proceeds were not accounted for, contrary
to the usual procedure. Against that background, the
arbitrator deals
again with the probabilities and he says:
“
It
was put to Harper by the applicant’s representative that the
applicant signed the dispatch document for the scrap metals
to go
out. Harper, who had earlier testified that on the 26 August
2011, she went to Letsoalo to be provided with a driver
in order to
sell the scrap metal, later conceded during cross-examination that
she made a mistake (this was after she was shown
a document
indicating that Letsoalo was on leave on that day).
It
was the applicant’s case that if Henry had never requested
permission from him to sell the rubble on 26 August, that rubble
was
destined to be thrown away at the dump. He further testified
that he wants to believe that he was acting within his authority
in
order to allow the staff members to buy food with the proceeds of the
sale of the rubble, as it was in line with his entertainment
allowance, as long as he was going to submit proof of expenditure.
The
evidence of the applicant that Henry asked for permission to sell the
rubble is problematic in that:
·
It was put to Harper that the applicant had
signed the dispatch document for the scrap metal to go out.
·
It was not put to Harper that what was sold
was the rubble and not the scrap metal.
·
What the applicant called “rubble”
generated about R1 000,
·
The charge is not about the selling of
scrap metal but about the sale of Metrobus property.”
[16]
The arbitrator then correctly notes that, as Henry was not called to
testify, he had to analyse the versions of the applicant
as against
that of Harper. He did so and then came to the conclusion that
the applicant had instructed Harper to sell the
scrap metal on a
balance of probabilities. In doing so, he took into account,
inter alia
, the following factors:
·
“
The applicant used the word “rubble”
towards the end, when his representative had used the word “scrap
metal”
when he put the version of the applicant to the
respondent’s witnesses.
·
The applicant signed a dispatch document
for the scrap metal to go out.
·
If there was a dispatch document duly
signed by the applicant for the scrap metal to go out, it would make
no sense for Harper to
claim the contrary.
·
Since the applicant had claimed that Harper
was not reporting to him, then there was no basis for Henry to
request Harper to go
with him.
·
In my view, it was an honest mistake for
Harper to claim in a statement that it was Letsoalo who provided the
bakkie.
·
It was not put to Harper that the rubble
was sold.”
[19]
It
is against that background that the arbitrator came to the conclusion
that he did on the probabilities. As Ms
Strijdom
pointed out in her heads of argument, the courts have set out,
inter
alia
,
in
Mabona v Minister
of Law and Order
[1]
how the credibility of witnesses should be ascertained:
“
The
credibility of witnesses and the probability or improbability of what
they say should not be regarded as separate enquiries
to be
considered piecemeal. They are part of a single investigation
into the acceptability or otherwise of the plaintiff’s
version
and investigation where questions of demeanour and impressions are
measured against the content of a witness’s evidence,
where the
importance of any discrepancies or contradictions are assessed and
where a particular story is tested against facts which
cannot be
disputed and against the inherent probabilities, so that at the end
of the day one can say with conviction that one version
is more
probable and should be accepted and that therefore the other version
is false and may be rejected with safety.”
See
also
Marapula
&
others v Consteen (Pty) Ltd
[2]
.
And
further in
Isaacs
v Education Labour Relations Council
and
Others
[3]
the court said:
“
The
issue is not whether the commissioner was correct or incorrect in
coming to the conclusion that she did. She is entitled
to be
incorrect. It is only when the failure to have regard to
relevant evidence or taking into account irrelevant is such
that an
applicant can be said to be deprived of a fair hearing, that it can
be said that the commissioner acted other than as a
reasonable
commissioner would.”
And
further in
Isaacs
, the court confirmed that a review court
should not likely interfere with credibility findings in
circumstances:
“
Where
the court, unlike the commissioner, lacks the advantage of first hand
observation of the witnesses and their demeanour and
where there is
no apparent basis from the record to justify calling the
commissioner’s findings into question
.”
[20]
That
is especially so in a case such as this one, where there was a
lengthy arbitration, in this case, over 10 days, where the
commissioner had sufficient time to go through exactly that exercise
-- a privilege that the court has not had, despite having trawled
its
way through 1 448 pages of transcript. I am also reminded
of the cautionary note sounded by the Labour Appeal
Court in
Goldfields
Mining SA (Pty) Ltd v CCMA
[4]
,
where the court said in paragraphs 16 to 21:
“
In
short, a reviewing court must ascertain whether the arbitrator
considered the principle issue before him or her; evaluate the
facts
presented at the hearing and came to a conclusion that is reasonable…
18.
In a review conducted under section 145(2)(a)(ii) of the
LRA,
the reviewing court is not required to take into account every factor
individually, consider how the arbitrator treated and
dealt with each
of those factors and then determine whether a failure by the
arbitrator to deal with one or some of the factors
amounts to a
process-related irregularity sufficient to set aside the award.
The piecemeal approach of dealing with the arbitrator’s
award
is improper, as the reviewing court must necessarily consider the
totality of the evidence and then decide whether the decision
made by
the arbitrator is one that a reasonable decision maker could make.
To do it differently or to evaluate every factor
individually and
independently, is to defeat the very requirement set out in section
138 of the LRA, which requires the arbitrator
to deal with the
substantial merits of the dispute between the parties with the
minimum of legal formalities and do so expeditiously
and fairly.
This is also confirmed in the decision of
CUSA
v Tao
Ying
Metal
Industries
.”
[21]
In the case before me, the arbitrator dealt
with the substantial merits of the dispute as prescribed, and given
the volume of evidence
before him, he did so admirably. What
the applicant has attempted to do is exactly what the LAC cautions
against, namely
to carefully parse through the evidence and to
evaluate every factor individually and independently in an effort to
find review
grounds where none exist.
[22]
With regard to the sanction of dismissal,
the arbitrator takes into account the relevant factors. Those
are, as he points
out in his award, that both charges relate to
dishonesty; that both charges may warrant a sanction of dismissal,
according to Metrobus’s
Disciplinary Code; that Muller, the
applicant’s direct senior, testified that the trust
relationship had broken down completely;
and that the applicant had
not shown any remorse. It is against that background that he
came to the conclusion that the continued
employment relationship was
intolerable and that dismissal was fair. That is an entirely
reasonable conclusion.
[23]
I started
off the proceedings this morning by debating an application for
condonation with Mr
Gwebu
.
As I explained to him, the question of prospects of success would be
the decisive factor in that process. The application
was three
weeks late, which is about half again of a six week period that is
prescribed by the Labour Relations Act. The
explanation
tendered is not entirely unreasonable, and that is, in short, that
the applicant did not have money to pay his attorneys.
The
prospects of success are therefore decisive. As is apparent from my
discussion up to now, the applicant did not have any prospects
of
success. Even if I had granted condonation, I would have
dismissed the application for review.
[24]
On the
issue of costs, both parties asked for costs to follow the result.
I see no reason not to heed that request.
Order
The
application for condonation, and thus the application for review, is
dismissed with costs.
________________________
Anton Steenkamp
Judge of
the Labour Court
APPEARANCES:
APPLICANT:
Jabulani Gwebu of Madlela Gwebu Mashamba.
THIRD
RESPONDENT: Helena Strijdom
(attorney).
[1]
1988
(2) South Africa 654 (SE) at 662(c).
[2]
(1999)
29
ILJ
1837
(LC).
[3]
[
2011
]
ZALCCT 64 (13 September 2011),
[4]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC)