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[2016] ZALCCT 46
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John Taolo Gaetwe District Municipality v SALGBC and Another (C45/2016) [2016] ZALCCT 46 (30 November 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of
interest to other judges
C
ase
no: C 45/2016
In
the matter between:
JOHN TAOLO
GAETSWE
DISTRICT
MUNICIPALITY
Applicant
And
SALGBC
First respondent
Suria VAN WYK
N.O.
Second respondent
Heard:
27 October 2016
Delivered
:
30 November 2016
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
third respondent, Mr Mmoloki Ikaneng (the employee) was dismissed by
the applicant (the Municipality) for unauthorised use of
a municipal
vehicle and failing to report an accident involving the same vehicle.
He referred an unfair dismissal dispute to the
first respondent (the
South African Local Government Bargaining Council). Conciliation
failed. The arbitrator, Ms Suria van Wyk
(the second respondent)
found that the dismissal was procedurally fair but substantively
unfair. She ordered the Municipality to
reinstate the employee
retrospectively to his date of dismissal, one month short of a year
earlier. The Municipality seeks to have
the award reviewed and set
aside in terms of s 145(2)(a)(ii) of the LRA.
[1]
Condonation
[2]
At the outset of the hearing, I granted
condonation for the late filing of the answering and replying
affidavits. The reasons need
not be repeated here. This judgment
deals with the merits.
Background
facts
[3]
Mr Ikaneng was employed as a rural
development officer. His job entails visiting rural areas in the
Northern Cape. (The Municipality
is based in Kuruman). On Thursday 10
July 2014 he signed out a municipal vehicle (a Toyota bakkie) from
the municipal car pool.
He had to visit a farm near Van Zylsrus where
he was supervising a fencing project. He signed a trip authorisation
form that states,
amongst other things:
‘
I
hereby confirm that I hold a valid driver’s license and
acknowledge that I have read and understood my responsibilities
as
the driver of this official vehicle set out in the Handbook for
Drivers of Official Vehicles.’
‘
The
trip authority will be subject to the following conditions:
·
The contents of the Transport and the
Drivers of Official Vehicles Handbooks are understood and adhered to
at all times.
·
That the vehicle may not be refuelled
unnecessarily.
·
That authority is obtained to keep the
vehicle overnight.’
[4]
The employee returned to Kuruman on Friday
11 July. He did not return the bakkie, taking it home and keeping it
overnight instead.
On Saturday 12 July he kept it at home. That
evening he attempted to return the bakkie but left the road and wrote
it off. He claimed
to have swerved for stray horses in the road. The
bakkie was insured, but the excess on the vehicle (worth some R300
000) was about
R14 000.
[5]
The employee did not report the accident.
He went home. The next day he went to hospital. On the way he passed
the accident scene
and saw Mr Lebogang Buffel, the Municipality’s
logistics clerk and fleet assistant, at the scene. He did not stop
and speak
to Mr Buffel; neither did he report the accident.
[6]
The employee only filed an accident report
four days after the accident, on 16 July. The report was signed by a
Mr Lebogang Modise
on his behalf.
[7]
The
Municipality called the employee to a disciplinary hearing on 1
October 2014. It was postponed to 24 October. The complaint
was set
out as follows:
[2]
‘
Irregular,
improper and unauthorised use:
Director
and Manager (Mr Klaas Teise and Thabo Mathabathe) did not put two
signatures on the vehicle requisition form to authorise
the vehicle
for Mr Mmoleki Ikaneng to use, on the 12
th
July 2014 day of accident.
And
it was also unofficial trip.
Reporting
of accident and incidents
When
the vehicle was involved in an accident the driver did not report to
the immediate supervisor and transport officer.’
[8]
The chairperson found that the employee had
committed the misconduct complained of. He imposed a sanction of a
final written warning
for failure to report the accident; and summary
dismissal for the unauthorised use of the vehicle. He lodged an
internal appeal.
It was unsuccessful. He was eventually dismissed on
28 February 2015.
[9]
The employee referred an unfair dismissal
dispute to the Bargaining Council. The arbitration was conducted on
12 and 13 January
2016 in Kimberley. The arbitrator gave her award on
22 January 2016. (It is not clear from the papers why it took almost
a year
to be heard).
Arbitration
award
[10]
At the arbitration, both parties were
legally represented – the employee by his attorney of record,
Mr Neville Cloete; and
the Municipality by its attorneys of record
and counsel who appeared in this hearing, Mr J Eastes. The arbitrator
heard the evidence
of the following witnesses for the Municipality:
10.1
Mr Lebogang Buffel, the logistics clerk and
fleet assistant;
10.2
Mr Klaas Teise, Director: Economic
Development;
10.3
Mr Gert van der Westhuizen, Performance
Management Manager and chairperson of the disciplinary hearing;
10.4
Mr Moses Eilard, Director: Corporate
Services and chairperson of the appeal hearing.
[11]
The employee testified on his own behalf
and he called one other witness, Mr Lesego Christopher Modise. Mr
Modise testified about
alleged inconsistency pertaining to accidents
in which two other employees were involved.
[12]
The arbitrator found that the dismissal was
procedurally fair. There is no cross-review.
[13]
On the substance of the complaint, the
arbitrator reasoned as follows:
13.1
The ‘pivotal question’ was
whether the employee was aware of the Fleet Management Policy ‘and
the contents thereof’.
13.2
There was a process of authorisation forms
from the time the employee was employed in 2009. The Fleet Management
Policy was introduced
in 2013. ‘From the evidence it was clear
that after the implementation of the Fleet Management Policy in 2013
there were
no significant changes to this process and only the
authorisation forms looked slightly different. These authorisation
forms were
then also given to the [employee] to complete and he was
not tasked with retracting [
sic
]
it personally from the Fleet Management Policy.’
13.3
‘
One can therefore not accept that
merely because the [employee] knew that he needed to complete a trip
authorisation form prior
to using a vehicle that he therefore also
knew about the contents of the new Fleet Management Policy that was
adopted.’
13.4
The trip authorisation forms made no
mention of the Fleet Management Policy.
13.5
The employee had taken the vehicle home on
more than one occasion in the preceding two weeks and no control had
been implemented.
13.6
The only part of the Fleet Management
Policy that the employee was aware of was that authorisation had to
be obtained; and he only
knew this because the authorisation process
had not been altered.
[14]
Despite having found that the employee was
aware of the fact that he needed authorisation to keep the vehicle
overnight, the arbitrator
found:
‘
In
the light of the above I cannot find that the [Municipality] has
discharged the onus of proof that the ‘[employee] was
aware of
the rules that he was charged for [
sic
]
contravening.’
‘
In
the absence of proof that the [employee] was aware of the rule he
allegedly contravened, the remaining elements of substantive
fairness
need not be discussed.’
‘
The
same argument applies to the charge of not reporting the accident
within 12 hours.’
‘
The
[employee’s] dismissal is therefore found to be substantively
unfair on the basis that the [Municipality] failed to discharge
the
onus of proof that the [employee] was aware of the contents of the
Fleet Management Policy and that charge was not drafted
to reflect
the true contravention the [employee] was found guilty on.’
[15]
The arbitrator ordered the Municipality to
reinstate the employee retrospectively to his date of dismissal.
Grounds
of review
[16]
Mr
Ackermann
,
for the Municipality, summarised the grounds of review under three
headings:
16.1
The employee knew the rule.
16.2
He did not report the accident. The
arbitrator does not deal with this complaint.
16.3
The finding that the Municipality imposed
no controls despite the fact that the employee had taken a vehicle
home overnight during
the preceding two weeks, is not sustained by
the facts.
Evaluation
[17]
The
Municipality’s case is that, given the facts and the evidence
before her, the arbitrator’s conclusion is one that
no
reasonable arbitrator could reach.
[3]
I shall consider that argument in the light of each of the three
contentions raised by Mr
Ackermann
.
Was
the employee aware of the rule?
[18]
The complaint makes no mention of the Fleet
Management Policy (FMP). It merely complains about ‘unauthorised
use’ of
the bakkie on 12 July 2014.
[19]
In any event, though, both Buffel and Teise
testified that the employee knew about the FMP. In contrast, the
employee baldly denied
it.
[20]
The procedure for signing out an official
vehicle is set out in the trip authorisation form that the employee
signed. He set out
the date, the starting point, odometer reading,
end point, and reason for the official trip. He also confirmed that
he had read
and understood his responsibilities as set out in the
handbook for drivers of official vehicles; and that authority had to
be obtained
to keep the vehicle overnight.
[21]
These conditions are similar to those
contained in the FMP. That policy states the rather obvious
proposition that a driver may
only use an official vehicle for
official purposes; and that, after the trip, it must be parked at the
municipal building:
“
This
applies even if a vehicle is used for more than one day and such
vehicle may under no circumstances be parked on the street
or
anywhere other than its allocated parking.”
[22]
Having signed the trip authorisation form
and acknowledged the conditions for the trip, the employee was well
aware that he needed
authorisation to keep the vehicle overnight. He
did not get authorisation. Contrary to what the arbitrator found, he
was aware
of the rule and he breached it. In fact, the arbitrator
found that the employee was aware of the rule “that
authorisation
had to be obtained”; yet she finds that he was
not guilty of the unauthorised use of the vehicle.
[23]
This conclusion is both illogical and
unreasonable. The misconduct complained of was unauthorised use of
the vehicle. The employee
was aware of the rule that he needed to
obtain authorisation to keep the vehicle overnight, and that he
needed fresh authorisation
– in the form of the two signatures
needed – if he wanted to keep it an extra day. He did not get
such authorisation.
He breached the rule. The Municipality did
discharge the onus of showing that he committed the misconduct set
out in the complaint.
The arbitrator’s finding to the contrary
is so unreasonable that no reasonable arbitrator could have come to
the same conclusion
on the facts and the evidence before her.
Failure
to report the accident
[24]
It is common cause that the employee did
not report the accident until four days after the fact, even when he
saw Buffel at the
accident scene. This was the second major component
of the complaint. Yet the arbitrator does not deal with it at all.
[25]
The arbitrator dismisses the complaint in
one line, saying:
‘
The
same argument applies to the charge of not reporting the accident
within 12 hours.’
[26]
That was not the “charge” or
complaint. The complaint makes no mention of 12 hours. And in any
event, it cannot seriously
be contended that an employee would not be
aware of the fact that he had to report an accident involving an
official vehicle as
soon as possible.
[27]
Be that as it may, the employee testified
that he could not report the accident within 12 hours because he was
in hospital. His
case was not that he was not aware of the fact that
he had to report it within 12 hours or any other reasonable period.
His counsel,
Mr
Eastes
,
set out his case as follows in the arbitration:
“
He
will testify to the effect that he could not have reported the
accident within the 12 hour period because he was in hospital
and he
was sick, he was in shock, it was an accident. But on his way the
13
th
of July to the hospital, he drove past that scene again and he saw
you [Buffel] there at the scene…”
[28]
Despite this, he did not report the
accident. And only a day before he booked out the bakkie, he had hit
a guinea fowl in another
official vehicle. He did report that upon
its return to the car pool within 24 hours.
[29]
On a balance of probabilities, the employee
knew that it was his duty to report the accident. He did not do so.
He wrote off the
bakkie while he was on an unauthorised trip. Yet the
arbitrator does not deal with this complaint at all. That is a
reviewable
irregularity. Had she done so, the only reasonable
conclusion would have been that the employee did commit the
misconduct; and
that dismissal was a fair sanction.
The
two weeks before the incident
[30]
The employee kept an official vehicle
overnight before in the course of the preceding two weeks. The
arbitrator found that, therefore,
if the Municipality ‘was
serious about the rule of returning the vehicles the same day, some
form of control would have been
implemented to check whether all
vehicles were returned every day. Had that been done, the
[Municipality] would have realised that
the [employee] was not aware
of the rule and he could have been informed.’
[31]
The problem with this line of reasoning is
that the evidence did not show that the Municipality was aware of the
fact that the employee
had previously breached the rule. The employee
testified that he would simply park the car and leave the key with
one of the officials
on duty, without signing off any documents.
[32]
The arbitrator’s conclusion, given
this evidence, is not reasonable.
Conclusion
[33]
This is one of those rare cases where,
despite the stringent test on review, the conclusion reached by the
arbitrator is so unreasonable
that the award must be reviewed and set
aside.
[34]
The Court had the benefit of a
comprehensive transcript of the arbitration proceedings, as well as
the arguments by the same attorneys
that appeared at arbitration. It
is unnecessary for the parties to incur further costs and delays by
remitting the dispute. This
Court is in a position to substitute its
finding for that of the arbitrator. And in the light of the facts set
out above, the sanction
of dismissal was fair.
[35]
With regard to costs, I take into account
that the employee has already incurred significant legal costs, both
at arbitration and
in these proceedings. He had an arbitration award
in his favour. He had little choice but to defend it. He is an
individual who
has lost his job. On the other hand, he is represented
by his trade union; but there is an ongoing relationship between that
union
(SAMWU) and the Municipality. In law and fairness, I do not
consider a costs award to be appropriate.
Order
The
arbitration award under case number NCD 051504 dated 22 January 2016
is reviewed and set aside. It is replaced with an award
that the
dismissal of the employee, Mr Mmoleki Ikaneng, was procedurally and
substantively fair.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
L W Ackermann
Instructed
by
Neville Cloete (Kimberley).
THIRD
AND FOURTH RESPONDENTS:
J Eastes
Instructed
by
Maenetja attorneys (Pretoria).
[1]
Labour Relations Act 66 of 1995
.
[2]
Grammar as in the original.
[3]
Sidumo
v Rustenburg Platinum Mines Ltd
(2007)
28
ILJ
2405
(CC).