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 42
|
|
IMATU obo Cupido v City of Cape Town and Others (C420/2015) [2016] ZALCCT 42 (2 November 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C420/2015
Not
Reportable
In
the matter between:
IMATU
OBO THEODORE
CUPIDO
Applicant
and
THE
CITY OF CAPE
TOWN
1st Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUCIL
(SALBC)
2
nd
Respondent
COMMISSIONER
LESLIE MARTIN
N.O.
3
rd
Respondent
Heard:
May 18 2016
Delivered:
2 November 2016
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to review an arbitration award. The
third respondent (the Commissioner) found that the dismissal
of the
applicant employee (Cupido) was procedurally and substantively fair.
Cupido also applied for condonation for the late filing
of the review
the application which was filed seven days late. This application was
not opposed and condonation is granted.
[2]
Cupido worked for the City as a law enforcement officer from 4 June
2011 until he was dismissed in October 2014. He was dismissed
after
being charged with the following:
“
It
is alleged that you were grossly negligent when on or about 23 March
2014, being the driver of vehicle VW Polo, registration
number CA
604933, transporting passengers to work, you failed to apply caution
due to the wet surface and drove well over the speed
limit, which
caused you to lose control of said vehicle, crash into two other
vehicles which caused the vehicle to overturn.”
[3]
The Commissioner records certain common cause facts in his Award as
follows:
“
6.
….It was common cause that the applicant was involved in a
motor vehicle collision on 23 March 2014 when he drove a VW
Polo
(Polo) hired by the respondent for general duties of a law
enforcement officer, and which collided with two private vehicles
on
Baden Powell Drive Mitchells Plain at 06H12.
7.
It was also common cause the collision occurred in an 80 kph zone.
Further common cause was that the tracker device on the Polo
recorded
its last speed at 155kph. On impact the alternator of the polo
dislodged and went through the windscreen of one of the
other
vehicles involved in the collision.”
[4]
The grounds of review listed in the founding affidavit are stated as
being based ‘mainly upon the misconduct’ of
the
Commissioner in respect of his analysis of the evidence before him
regarding:
(a)
Whether or not the alleged misconduct had the effect of destroying
the trust relationship; and
(b)
Whether or not the First Respondent had been consistent in its meting
out of discipline to employees who drove its vehicles
negligently or
recklessly; and
(c)
Whether or not the First Respondent had proven gross negligence.
[5]
In his founding affidavit in this application Cupido avers inter alia
as follows:
“
The
tracking report showed that at the time of the collision my vehicle
was travelling at 155 kilometers per hour. I did not deny
that my
speed was a contributing factor to the collision, however at the time
my action of veering into the oncoming lane was an
attempt to avoid a
head on collision with the bakkie. I deny I was grossly negligent.”
[6]
Cupido submits in his replying papers that it was unreasonable for
the City to refer to the amount of damages arising from the
accident
(some 260,000 Rand) to support the notion that ‘gross
negligence’ and not simply negligence, was involved.
His
submissions repeated in argument before me, are worth recording:
“
The
evidence before the Arbitrator was that the City did not pay out any
money in respect of the accident as the damages were covered
by
insurance.
Common
sense dictates that the amount of damages suffered in a collision is
determined by a number of factors, including the make
and model of
vehicles involved. A small ding on the back of a 2014 Ferrari can
amount to hundreds of thousands in repair costs
whilst the same ding
on the back of an old make and model car will be a fraction of the
cost to repair”.
[7]
It is difficult to comprehend how exactly Cupido can aver there has
been no loss to his employer because its insurers met the
cost. Nor
do his theories regarding different models of cars and ‘dings’
to them take his case any further. His case
at arbitration also
hinged on the inconsistency of penalties meted out to other
employees. However he did make the following concession
under
cross-examination as recorded in the transcribed record:
“
MR
PETERSEN: Now, why do you say the City is inconsistent, if it is
clear that if one only look at the amounts, plain and simple
it is
clear, 80 000 for those two members versus your 260 000
damage.
MR
CUPIDO: At the time I was not aware of the amounts. It was only when
we were here last time that I heard that amount amounted
to 260. I
wasn’t aware of the amount.
MR
PETERSEN: You are not answering my question. I said to you it’s
clear that your R260 000,00 damage versus that of
the 80 000,
that that is the difference and that is what was testified here.
MR
CUPIDO: Yes.
MR
PETERSEN: You agree with that?
MR
CUPIDO: Yes.
MR
PETERSEN: You will also agree that therefore the other accidents was
dealt with in the informal, and yours would have been informal
if the
amount was not so gross and the accident was not so gross.
MR
CUPIDO: I believe so.”
[8]
He also agreed that he did not know of any other accident that was as
severe as the one he was involved in:
“
MR
CUPIDO: What’s the question, sir?
MR
PETERSEN: I said – I put it
to you. I said you were the sole cause of the accident
because of
your reckless driving on that road. Number one. And then I further
said to you that even if the other vehicle turned
in your direction,
if that would have happened, you would have had sufficient time to
avoid that collision. But due to your speed,
you could not stop that
vehicle on that morning. And therefore you must take responsibility
for that accident.
MR
CUPIDO: I was driving fast, I won’t deny it. I don’t
believe I was the sole cause of the accident. Yes, if I were
driving
the required speed, then I might have avoided the accident. And I’m
so sorry for what happened on that specific day.
MR
PETERSEN: You see, it’s
easy to say sorry afterwards. I’m actually of the opinion
that
you are not remorseful in this instance. You are blaming everyone.
You are blaming the fact you were late, you’re blaming
other
drivers. You are not taking responsibility for the accident yourself.
MR
CUPIDO: I was (indistinct) the accident, yes, sir. I was speeding,
yes, and that was a major factor to the accident, because
of my
speed. I’m not running away from that. I know I could have lost
my life because the vehicle overturned. I could have
lost my life.
But by God’s grace I’m still here. I’m not saying
it wasn’t my fault.”
[9]
The Commissioner found that the negligence was gross and that “there
is nothing before me from which to conclude that
the other incident
were comparable to that of the applicant.” He also referred to
the matter of
Absa
Bank Ltd v Naidu & others
[1]
in which the court surveyed commentary and jurisprudence on the
parity principles thus :
“
[36]
However, it ought to be realised, in my view, that
the parity principle may not just be applied willy-nilly without any
measure
of caution. In this regard, I am inclined to agree with
Professor Grogan when he remarks as follows:
'[T]he
parity principle should be applied with caution. It may well be that
employees who thoroughly deserved to be dismissed profit
from the
fact that other employees happened not to have been dismissed for a
similar offence in the past or because another employee
involved in
the same misconduct was not dismissed through some oversight by a
disciplinary officer, or because different disciplinary
officers had
different views on the appropriate penalty.'
[37]
In SACCAWU & others v Irvin and Johnson (Pty) Ltd, this court
(per Conradie JA) stated:
'In
my view too great an emphasis is quite frequently sought to be placed
on the "principle" of disciplinary consistency,
also called
the "parity principle" … . There is really no
separate "principle" involved. Consistency
is simply an
element of disciplinary fairness … . Every employee must be
measured by the same standards … . Discipline
must not be
capricious. It is really the perception of bias inherent in selective
discipline that makes it unfair. Where, however,
one is faced with a
large number of offending employees, the best one can hope for is
reasonable consistency. Some inconsistency
is the price to be paid
for flexibility, which requires the exercise of a discretion in each
individual case. If a chairperson
conscientiously and honestly, but
incorrectly, exercises his or her discretion in a particular case in
a particular way, it would
not mean that there was unfairness towards
the other employees. It would mean no more than that his or her
assessment of the gravity
of the disciplinary offence was wrong. It
cannot be fair that other employees profit from that kind of wrong
decision. In a case
of plurality of dismissals, a wrong decision can
only be unfair if it is capricious, or induced by improper motives
or, worse,
by a discriminating management policy. … Even then
I dare say that it might not be so unfair as to undo the outcome of
other
disciplinary enquiries. If, for example, one member of a group
of employees who committed a serious offence against the employer
is,
for improper motives, not dismissed, it would not …
necessarily mean that the other miscreants should escape. Fairness
is
a value judgment.'”
[10]
As to the breakdown of the trust relationship it was submitted on
behalf of Cupido that the Commissioner failed to apply his
mind as to
whether the trust relationship had broken down. But the Commissioner
does record that the evidence before him was that
the chief of law
enforcement for the City considered Cupido reckless and his
negligence gross, and instructed that the sanction
of dismissal be
asked for at the enquiry as he could no longer trust Cupido with the
City’s motor vehicles.
[11]
Taking all or the above into consideration I find that the Award is
not susceptible to review. I refer to the
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[2]
in which the following was stated in relation to the task of a
review court:
“
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employ give the parties a full
opportunity to have their say in respect of the dispute? (ii) Did
the
arbitrator identify the dispute he or she was required to arbitrate?
(This may in certain cases only become clear after both
parties have
led their evidence.) (iii) Did the arbitrator understand
the nature of the dispute he or she was required
to arbitrate? (iv)
Did he or she deal with the substantial merits of the dispute? (v) Is
the arbitrator's decision one that another
decision maker could
reasonably have arrived at based on the evidence?”
[12]
All the above questions must be answered in the affirmative in this
case. The union asked for costs in its Notice of Motion
and I see no
reason why costs should not follow the result in this matter. I make
the following order:
Order:
1.
The application is dismissed with costs.
____________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances:
Applicant:
IMATU
First
Respondent: Bradley Conradie Halton Cheadle Attorneys
[1]
(2015) 36 ILJ 602
(LAC)
[2]
(2014) 35 ILJ 943
(LAC)