About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2016
>>
[2016] ZALCCT 1
|
|
South African Breweries (Pty) Ltd v Hansen and Others (C165/15) [2016] ZALCCT 1; [2016] 5 BLLR 516 (LC) (2 January 2016)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 165/15
In
the matter between:
SOUTH AFRICAN
BREWERIES (Pty) LTD
Applicant
and
HEINDRICH HANSEN
First Respondent
CCMA
Second
Respondent
HILARY MOFSOWITZ
N.O.
Third Respondent
Heard
:
18 November 2015
Delivered
:
2 February 2016
Summary:
Review – misconduct – allegation of
racist language not proven – dismissal unfair. Application for
review dismissed.
judgment
STEENKAMP
J
Introduction
[1]
This case deals with two elements of South
African society that give rise to much conflict, namely race and
beer.
[2]
The
driver of a beer truck subcontracted to the applicant company (SAB),
Mr Clarence Booysen, alleged that a regional risk manager
employed by
SAB, Mr Heindrich Hansen, said to him: “Julle donnerse kaffers
is ewe donners onnosel”.
[1]
[3]
SAB
dismissed Hansen for making a racially derogatory statement. He
referred an unfair dismissal dispute to the CCMA. Conciliation
failed. The arbitrator, Ms Hilary Mofsowitz (the third respondent)
found that SAB had failed to discharge the onus to show that
the
dismissal was fair. She found on a balance of probabilities on the
evidence before her that SAB could not show that Hansen
had made the
alleged statement. SAB seeks to have the award reviewed and set aside
in terms of s 145 of the LRA.
[2]
Background
facts
[4]
The unhappy events that gave rise to this
dispute occurred at the Westerford premises of SAB of in Newlands,
Cape Town, adjacent
to the eponymous cricket and rugby grounds where
much of its product is consumed annually. It happened on Youth Day,
16 June 2014.
[5]
Booysen was driving a beer delivery truck
for a subcontractor, D J Bosman Transport. He was leaving the
premises to do deliveries.
Hansen stopped the vehicle as the load was
not properly secured. He refused to let Booysen leave without
securing it. That much
is common cause. There is a dispute whether
Booysen as the driver was negligent in not securing the load or
whether the security
official on duty was responsible for checking
and securing the load. What exactly happened after that, is mostly in
dispute, as
is the question whether there was a second driver on the
vehicle who witnessed the incident.
The
evidence at arbitration
[6]
Booysen
chose to testify in Afrikaans. He testified that Hansen signalled to
him to stop. Hansen came walking towards him and started
shouting at
him (“begin te skel”). According to Booysen, Hansen then
said, “Julle kaffers is almal donnerse ewe
onnosel”
[
sic
].
[3]
Booysen then got out of the truck and said to Hansen, “Wie is
jou kaffer?”. Hansen did not answer. Booysen told him
that he
would take the matter further. Hansen then told Booysen that he would
allege that Booysen said to him, “jou ma se
poes”.
[7]
According to Booysen, he told Hansen that
he had a second driver – Wendell Carolus – with him on
the truck. Hansen told
Booysen to leave the premises on foot. Booysen
radioed the controller. The controller arrived and Hansen told the
controller that
Booysen had sworn at his mother. Booysen left the
premises on foot.
[8]
When questioning Booysen at the
arbitration, Hansen referred Booysen to a statement that he had made
to his attorneys dated 25 June
2014, nine days after the incident. In
the statement Booysen recorded that he had asked Hansen, “who
is your stupid blacks”
[
sic
]
(as opposed to his evidence at arbitration that he said, “wie
is jou kaffer?”). When confronted with this discrepancy,
he
said that he had asked Hansen (in Afrikaans), “Wie is jou
onnosele kaffers?”
[9]
Hansen also questioned Booysen about the
fact that he (Booysen) did not complain about the alleged use of
racist language to the
controller, Kurt Scullard. Booysen responded:
“
Ek
het nie eens ‘n kans gekry om te praat met hom nie, want Mnr
Hansen het soos ‘n besetene aangegaan en gesê
niemand vloek my ma se goed nie, soos hy nou
daarnatoe gaan en so aan…”
[10]
Wendell
Carolus testified that he was partnered on the vehicle with Booysen
as a co-driver. He had driven the night shift and remained
in the cab
of the truck (in the sleeping area behind the seats) when Booysen
left to do deliveries on 16 June. He was asleep but
was woken up by
the altercation. He overheard Hansen saying, “Maar julle
kaffers is ewe onnosel.” Booysen got out and
said, “Wie
is jou kaffer?” Hansen then told a security official that
Booysen had referred to his “MP”.
[4]
[11]
Kurt Scullard, the controller, confirmed
that Booysen had called him to the scene by radio. Hansen complained
that Booysen had sworn
at him and invoked his mother’s
genitalia. Booysen did not mention the use of racist language to
Scullard.
[12]
Lifikile Luke, Hansen’s immediate
supervisor and area risk manager, investigated the incident. He acted
as initiator at the
disciplinary hearing. He was not present when the
altercation occurred.
[13]
Hansen denied the allegation that he had
used racist language. He stated at the outset that, as a regional
risk manager for SAB
for 14 years, it would have been irresponsible
to utter any such words. He said that he is not a racist and that he
is a patriot
who does not tolerate racism in any form. He confirmed
that he stopped the truck because it was not properly secured. He
pointed
that out to Booysen, who was still sitting in the driver’s
seat. Booysen swore at him “and used indecent and foul language
towards the dignity of my deceased mother”. Booysen jumped out
of the cab. He was aggressive. Hansen did not see another
driver. He
asked a security guard to record the incident. He pointed out that
there was no mention of him using racist language
in the occurrence
book. He also asked Scullard to report the incident to D J Bosman
management. He volunteered to undergo a polygraph
test. The test
showed no deception.
[14]
Hansen was cross-examined by Booysen’s
representative. He again denied using the racist words. He also
referred to control
sheets showing the movement of vehicles. That
record showed that the vehicle entered and left the site the previous
evening, whereas
Carolus had testified that he had taken the vehicle
off site and stayed overnight in Vredendal. Hansen argued that the
versions
were incompatible; that Carolus was not on the truck when
the incident occurred; and that he had fabricated his testimony to
corroborate
that of Booysen.
The
award
[15]
The arbitrator referred to the argument by
Booysen’s representative that it was probable that Hansen had
used the word “kaffers”
because he thought that, because
Booysen was black, he would not understand Afrikaans. She found it
unpersuasive because “the
word is known and understood by all
people of South Africa irrespective of the language spoken.”
She also could not see why
Hansen would have thought that Booysen was
“an African person”.
[16]
She also found Booysen’s version to
be lacking in credibility “given that he failed to use the
opportunity to inform
his controller when he had the opportunity to
do so, failed to inform his employer and informed the shop steward a
few days later”.
And it appeared that Booysen only mentioned to
the shop steward that he had been told to leave the site, as opposed
to having been
humiliated or sworn at.
[17]
The arbitrator pointed out that SAB relied
heavily on the evidence of Carolus; but the evidence did not support
the version that
Carolus was on the vehicle at the time. Carolus
testified that he had worked night shift the previous night and
remained on the
vehicle; but the documentation recording vehicle
movements did not support his version. Against that background, she
found Hansen’s
evidence that Carolus was not on the vehicle at
the time of the incident to be more credible.
[18]
The arbitrator concluded on a balance of
probabilities that SAB had not discharged the onus of proof to show
that Hansen had uttered
the racist comment. She reasoned:
“
While
there is a likelihood that both versions are probable, [SAB] must
convincingly prove that its version is the most probable
version.
[It] cannot discharge the onus where both versions are equally
probable. Given that Booysen’s version was not entirely
credible, that the appeal officer was not convinced, that the
security documentation does not support the version of Carolus, that
Booysen did not raise the issue with the controller, that Booysen was
known to be problematic, that the shop steward did not query
the
derogatory statement with [Hansen] and for all the other reasons
mentioned above, [SAB] has not convincingly shown that [Hansen]
was
guilty of the allegation for which he was dismissed.”
Review
grounds
[19]
Mr
Jorge
argued that the commissioner’s decision was not one that a
reasonable decision-maker could reach. He submitted that she took
into account irrelevant evidence and ignored material evidence.
[20]
Firstly, he points out that the arbitrator
referred to the finding of the internal appeal chairperson that
Booysen was violating
sealing protocol; that he was therefore fearful
of losing his job; and that he could have been motivated to fabricate
his version.
[21]
Secondly, the appeal chairperson
disregarded Scullard’s testimony, as he was not a witness to
the incident and he was used
as an interpreter in the disciplinary
hearing.
[22]
Thirdly, Mr
Jorge
takes issue with the arbitrator’s findings on the security load
registers. He argues that the registers are completed by
the gate
security and therefore could not impact on Carolus’s
credibility. The accuracy of the register, he argued, left
much to be
desired.
[23]
Lastly, the argument was that the versions
of Booysen and Carolus were more credible than that of Hansen; that
Carolus was on the
truck; and that Hansen should not have been
allowed to read his statement into the record.
Evaluation
/ Analysis
[24]
The
test on review is by now all too well known:
[5]
“
That
standard is the one explained in
Bato
Star
: Is the decision reached by the
commissioner one that a reasonable decision-maker could not reach?
Applying it will give effect
not only to the constitutional right to
fair labour practices, but also to the right to administrative action
which is lawful,
reasonable and procedurally fair.”
[25]
And
in
Herholdt
v Nedbank Ltd
[6]
the SCA explained:
“
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 the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.”
[26]
Could the arbitrator have reached the
conclusion that she did on the evidence before her? I think so. She
considered the evidence
and weighed up the probabilities. On review,
as opposed to appeal, her conclusion was one that another arbitrator
acting reasonably
could also have reached.
[27]
It is so that the arbitrator referred to
the appeal chairperson’s finding with regard to Booysen’s
credibility. But
the award and the evidence at arbitration must be
regarded holistically. She formed her own view of the probabilities
on the evidence
before her. And she also found Booysen not be a
credible witness, but for reasons other than those mentioned by the
appeal chairperson.
That is not a finding that a court on review is
likely to interfere with.
[28]
As to Scullard’s testimony, although
the appeal chairperson disregarded it, the arbitrator did have regard
to it in the arbitration,
which is a hearing
de
novo
. She considered Hansen’s
undisputed evidence that he had instructed Scullard to find an
alternative driver to take the truck
off the premises. It is common
cause that Scullard was not a witnesss to the incident. And she
pointed out that Scullard testified
that Hansen complained that
Booysen had sworn at him; yet Booysen made no mention of Hansen’s
alleged racist insult. The
oblique reference to the appeal
chairperson’s findings does not make the result of the
arbitration award unreasonable in
the light of the evidence led at
arbitration.
[29]
Turning to the security registers, the
arbitrator quite reasonably considered the discrepancies between the
evidence of Carolus
and the vehicle movements recorded on the
register. Her conclusion in this regard may be right or wrong; but it
is not so unreasonable
that no other arbitrator could have come to
the same conclusion.
[30]
Considering the question whether Hansen
uttered the racist words, the arbitrator considered the credibility
of the witnesses before
her; the probabilities; and came to a
conclusion on the balance of probabilities. She asked the right
question and came to a reasonable
conclusion. That conclusion is not
open to review, as opposed to appeal. It is so that Carolus
essentially corroborated Booysen;
but the arbitrator clearly and
reasonably explains why she preferred the evidence of Hansen. That is
exactly what an arbitrator
should do. The test is not whether this
Court may have come to a different conclusion; it is whether the
conclusion reached by
this arbitrator is so unreasonable that no
other arbitrator could have reached it. I think not.
[31]
It
does appear that Hansen started off his testimony by reading from his
previous statement. That is generally not advisable. But
it must be
borne in mind that he was unrepresented and that SAB’s
representative did not object. That fact did not deprive
the parties
of a fair hearing and was not a reviewable irregularity in the
conduct of the arbitration. In the case relied upon
by Mr
Jorge
[7]
the court also did not review the award on the ground that a witness
was allowed to read a statement into the record.
Conclusion
[32]
Viewed holistically against the evidence
led at the arbitration, the award is not so unreasonable that no
other arbitrator could
have come to the same conclusion. There was no
irregularity in the conduct of the proceedings either. It is not
reviewable in my
view.
Costs
[33]
Hansen was represented by his trade union,
Solidarity, in these proceedings. Although he has been successful, I
take into account
that there is an ongoing relationship between the
trade union and the employer. I also take into account that there is
an ongoing
employment relationship between SAB and Hansen, as the
effect of this judgment is that he is reinstated. If anything, the
events
leading up to this judgment have pointed out, once again, how
important it is for everyone in our society, given our racially
divided
past and the unfeeling and unthinking utterances of some
members of that society even today, to count their words and to work
harder
at forging relationships. For all these reasons, taking into
account the element of fairness, I think that a costs order may have
a chilling effect on those relationships. I do not consider a costs
award to be appropriate.
Order
The
application for review is dismissed.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
José
Jorge of Norton Rose Fulbright attorneys.
FIRST RESPONDENT:
N Greeff of
Solidarity (trade union).
[1]
For the sake of this judgment it is unfortunately necessary to quote
the alleged statement; and also to point out that, under
the racist
classifications of the apartheid regime, now removed from the
statute books, Mr Booysen would have been classified
as “black”
and Mr Hansen as “white”.
[2]
Labour Relations Act 66 of 1995
.
[3]
Quoting verbatim from Booysen’s testimony, although it doesn’t
make grammatical sense.
[4]
A reference to the vulgar insult, “jou ma se poes”, or
as Mr
Jorge
referred to it, the Cape vernacular insult.
[5]
Sidumo
v Rustenburg Platinum Mines Ltd
(2007)
28
ILJ
2405
(CC);
[2007] 12 BLLR 1097
(CC) par [110].
[6]
[2013] 11 BLLR 1074
(SCA) para [25].
[7]
Serenite
Wellness Centre (Pty) Ltd v CCMA
(2003)
24
ILJ
236 (LC).