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[2016] ZALCCT 9
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Supercare Services Group (Pty) Ltd v Du Plessis NO and Others (C92/15) [2016] ZALCCT 9; [2016] 7 BLLR 717 (LC) (31 March 2016)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 92/15
In
the matter between:
SUPERCARE SERVICES
GROUP (PTY LTD
Applicant
and
DU PLESSIS N.O.
First Respondent
CCMA
Second Respondent
NEHAWU obo
SIMPHIWE SOSHWESHE
Third Respondent
Heard
:
16 March 2016
Delivered
:
31 March 2016
Summary:
Review – misconduct – employee
stealing toilet paper – arbitrator finding that misconduct not
proven -- award
so unreasonable as to be reviewable on
Sidumo
test – award reviewed and set
aside – dismissal fair.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is a case about toilet paper.
[2]
The
employee, Mr Simphiwe Soshweshe
[1]
,
was dismissed after he was allegedly seen in possession of a bag full
of toilet paper belong to the Cape Peninsula University
of Technology
(CPUT). He referred an unfair dismissal dispute to the CCMA.
[2]
Conciliation failed. The arbitrator
[3]
found that the dismissal was unfair. He ordered the employer,
Supercare
[4]
, to reinstate the
employee. Supercare wants to have the award reviewed and set aside.
Background facts
[3]
The applicant, Supercare, operates a
contract cleaning service. Its employee, Mr Soshweshe, worked as a
cleaner at the Bellville
campus of CPUT.
[4]
An employee of CPUT, Mr Mark Jenkins, is an
animal lover. He was feeding a stray cat on the periphery of the
campus on 28 May 2014.
He saw a person – described in his
evidence at arbitration as “a black man” – wearing
blue jeans and a
blue jacket and carrying a black bag coming to the
security fence adjacent to the railway line from the direction of the
Freedom
Square hostel on the campus. The man was later identified as
the employee, Mr Soshweshe. The employee threw the black bag over the
fence. Jenkins asked him what was in the bag. He answered, “toilet
paper”. Jenkins went to look for a security guard.
The guards
were tardy. When Jenkins returned, he saw the man outside the
security fence. The man picked up the bag and walked away.
[5]
CPUT reported the incident to Supercare. It
held a disciplinary hearing. It was held in absentia after the
employee refused to undergo
a polygraph test. The chairperson found
that the employee had stolen the toilet paper from CPUT. He was
dismissed.
The arbitration
[6]
Jenkins testified at the arbitration. He
did not know the man who threw the bag over the fence. After he had
called the security
guards and after he had seen the man taking the
bag and running away, he was approached by an employee of Supercare
whom he knew
as “Jane”. She was later identified as Ms
Jane Adams. She told him that the man who had taken the bag was the
employee,
Mr Simphiwe Soshweshe. The incident happened at about 15:30
– the time it was entered into the security guards’
occurrence
book.
[7]
Ms Adams testified that she was a
co-employee of Mr Soshweshe. She saw him jumping over the security
fence after throwing the black
bag over the fence. The bag split open
and she saw toilet paper inside. She saw him picking up the bag and
running away across
the railway line. She saw Jenkins and the
security guards. She told him who the employee was and asked him not
to divulge that
he got the information from her. It happened between
15:00 and 16:00. On the following Monday, she saw the employee at the
train
station and told him what she had seen. He told that it was
fine, as long as he was not caught.
[8]
Ms Martine Carstens, Supercare’s area
manager, attended the disciplinary hearing as the company’s
representative. She
testified that the employee described himself as
a shop steward, but NEHAWU had never formally notified the company of
that status.
[9]
The employee, Mr Soshweshe, denied that he
had stolen any toilet paper. He said that he only clocked out at
16:00.
The
award
[10]
The arbitrator considered two procedural
attacks. The employee claimed that he was a shop steward and that his
union had not been
consulted about his disciplinary hearing. The
arbitrator found that his right to a fair procedure was not
prejudiced. There is
no cross review.
[11]
There was a delay in informing the employee
of the result of the disciplinary hearing. The arbitrator found that
was unfair. However,
he did not award any compensation for procedural
unfairness.
[12]
The substance of the award turns on
substantive unfairness. The arbitrator found that the employer did
not prove that the employee
committed the misconduct complained of.
[13]
The arbitrator found the evidence of
Jenkins to be “clear and to the point with no inherent
contradictions”. Despite
this, he did not accept Jenkins’s
version of events. The reason is that it differed from Ms Adams’s
version. The arbitrator
found that the fact that the employee,
Soshweshe, did not question her evidence as to the conversation
the two of them had
on the Monday morning, “does not take the
matter anywhere as I find that I am unable to rely at all on Ms
Adams’s version.”
Review grounds
[14]
Mr
Snyman
argued that the arbitrator failed to
decide the factual dispute between the parties properly. He argued
that the arbitrator decided
and determined the issues of credibility
and probabilities in a manner that was not only grossly irregular,
but led to an unreasonable
outcome.
Evaluation / Analysis
[15]
The nub of the review is that the
arbitrator did not consider the inherent probabilities, but fixated
on the minor contradictions
between the evidence of Ms Adams and that
of Mr Jenkins.
[16]
The arbitrator was faced with two mutually
destructive versions – that of the employer, that the employee
had stolen its toilet
paper; and that of the employee, which was a
bare denial.
[17]
As
the court held in
Sasol
Mining
[5]
,
one of the Commissioner’s prime functions was to ascertain the
truth as to the conflicting versions before him.
[18]
The
manner in which arbitrators should resolve such disputes has often
been outlined in terms of the technique set out by the SCA
in
SFW
:
[6]
“
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities.”
[19]
The arbitrator did not weigh up the
credibility and reliability of the employer’s witnesses as
against that of the employee;
neither did he consider the
probabilities.
[20]
Instead, the arbitrator focused on the
contradictions between the versions of Adams and Jenkins. He did not,
in his award, explain
how those versions were contradictory. It is
left for the Court
ex post facto
to gather that from the transcript. In fairness to the arbitrator,
some contradictions are indeed apparent:
20.1
Jenkins says that the employee threw the
bag over the fence; then he crossed the fence by some other means and
Jenkins saw him again
on the other side, where he picked up the bag.
Adams says that she saw the employee jumping over the fence with the
bag, he fell,
and the bag split open.
20.2
Jenkins says that Adams approached him and
told him the employee’s name; Adams says that Jenkins asked her
what the employee’s
name was.
[21]
What the arbitrator does not do, is to
consider the credibility of the employee; or the inherent
improbability of his bald denial.
Both Jenkins and Adams testified
that they saw the employee with the black bag and that the bag
contained toilet paper. There was
no reason for Jenkins to make up
such a story. He did not even know the employee. He only learned his
name when Adams, the co-employee,
told him. There was also no reason
for Adams to make up the story. In fact, she did not want her
identity to be disclosed. She
had no bone to pick with the employee.
[22]
The arbitrator found that the employee’s
version that he clocked out normally at 16:00 “was also not
challenged”.
The difficulty with that finding is that, although
it was put to Mr Jenkins, Jenkins was not an employee of Supercare.
The version
that the employee only clocked out at 16:00 was not put
to either of Supercare’s employees, i.e. Adams or Carstens.
They
were not placed in a position to contradict it by, for example,
submitting the relevant clock cards or timesheets.
[23]
Having found that there were contradictions
between the versions of Adams and Jenkins – without specifying
what they were
– the arbitrator simply finds that “I am
unable to rely
at all
on Ms Adams’s version.” On that basis, he dismisses her
version of her discussion with the employee on the Monday morning
entirely, despite the fact that the employee did not dispute it at
arbitration.
[24]
As
Mr Snyman pointed out in his argument, in rejecting Ms Adams’s
testimony
in
toto
,
the arbitrator committed a logical fallacy by applying the approach
of
falsus
in uno falsus in omnibus
.
Such an approach has been rightly rejected as unreliable and
illogical.
[7]
[25]
In summary, the arbitrator did not consider
the probabilities against the background of the credibility and
reliability of the witnesses.
On the probabilities, the only
inescapable inference is that the employee did indeed steal the
toilet paper. That is, in my view,
the only reasonable conclusion
that an arbitrator could have come to on the evidence before him or
her.
Conclusion
[26]
This is one of those rare cases where the
applicant has crossed the hurdle of showing that the conclusion
reached by the arbitrator
is so unreasonable that no reasonable
arbitrator could have come to the same conclusion on the evidence
before him. The award must
be reviewed and set aside.
[27]
It would serve little purpose to remit the
dispute for a fresh arbitration. The Court has had the benefit of a
full transcript of
the proceedings. It would only lead to further
unnecessary delay and costs to remit the dispute.
[28]
With regard to the costs of this
application, I take into account that the employee had an arbitration
award in his favour; and
that there is an ongoing relationship
between his trade union, NEHAWU, and the employer. Taking into
account the requirements of
the law and fairness, I do not consider a
costs award to be appropriate.
Order
[29]
I therefore make the following order:
29.1
The arbitration award of the first
respondent, Commissioner Daniel du Plessis, under case number WECT
14902-14 is reviewed and set
aside.
29.2
It is replaced with an award that the
dismissal of the employee, Mr Simphiwe Soshweshe, was for a fair
reason.
_______________________
A J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
S
Snyman (Attorney)
THIRD
RESPONDENT:
M
Phoko ( trade union official).
[1]
The third respondent (represented by his trade union, NEHAWU).
[2]
The Commission for Conciliation, Mediation and Arbitration (the
second respondent).
[3]
Commissioner Daniel du Plessis (the first respondent).
[4]
The applicant.
[5]
Sasol
Mining (Pty) Ltd v Ngqeleni NO
(2011) 32
ILJ
723
(LC) para 9.
[6]
SFW
Group Ltd v Martell et cie
2003 (1) SA 11
(SCA) para 5.
[7]
Cf
R v
Gumede
1949
(3) SA 749
(A) 756;
Kok
v CCMA
[2015]
JOL 32888
(LC), [2015] ZALCJHB 45 para 32.