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[2016] ZALCD 7
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Zulu v National Bargaining Council for the Road Freight Industry and Others (D1219/13) [2016] ZALCD 7 (25 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case
no: D1219/13
MOSES
ZULU
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR
THE
ROAD FREIGHT INDUSTRY
First Respondent
COMMISSIONER
ERIC DU PREEZ
Second Respondent
TANKER
SERVICES
Third Respondent
Heard:
25 February 2016
Delivered:
25 February 2016
EX
TEMPORE
JUDGMENT
WHITCHER
J
[1]
This
is an opposed application to review and set aside the award
[1]
in which the Second Respondent (the Commissioner) found the dismissal
of the Applicant by the Third Respondent (the Respondent)
substantively fair.
[2]
The
circumstances leading to the dismissal of the Applicant were common
cause. The Applicant was employed by the Respondent in 2002
as an
extra heavy duty Driver. The Applicant received a load of fuel in a
sealed container truck which he transported to Witbank.
The fuel was
offloaded at Witbank Shell Depot between 15h50 and 16h30. A shortfall
of 3700 litres of fuel was found between what
the Applicant received
at the beginning of his trip and what was eventually received by
Shell Witbank. The Respondent suffered
damages of R40 000.00
because of the loss.
[3]
The
Applicant was dismissed after a disciplinary hearing in which he was
found guilty of not following off-loading procedures and
dishonesty,
the particulars being that on or about 24 December 2012 the Applicant
offloaded ULP 95 at Witbank Shell, he incurred
a fuel loss of 3700
litres, he failed to record the loss and he submitted falsified
documentation in this regard.
[4]
Before
I turn to the reasoning and findings of the commissioner, it is
useful to refer to case law cited by the Respondent and which
reiterate certain rules of evidence relevant to this case.
[5]
In
Distell
Limited v CCMA & others
[2]
the Court reiterated the trite law that circumstantial evidence is an
appropriate and “powerful tool in proving the existence
of an
issue in dispute”.
[6]
In
National
Union of Mineworkers v CCMA & others
[3]
the Court reiterated the principle that in finding facts and making
inferences in a civil case, the court may go upon a mere
preponderance
of probability and may, by balancing probabilities,
select a conclusion which seems the more natural, or plausible,
conclusion
from amongst several conceivable ones, even though that
conclusion be not the only reasonable one.
[7]
In
Woolworths
(Pty) Ltd v CCMA & others,
[4]
the LAC held that video footage capturing an employee concealing
merchandise on her person constituted a prima facie case of
dishonesty
against the employee and that this then shifted the
evidentiary burden to the employee. The court held that in the
absence of a
credible and probable explanation from the employee, the
inference that the arbitrator can most reasonably draw is that the
employee
acted dishonestly and that the employer has discharged its
onus.
[8]
The LAC stated:
“…
As
stated earlier on, the DVD footage evidence creates a prima facie
case against the employee which shifted the evidentiary burden
to her
to demonstrate her lawful or innocent possession or handling of the
two items in questions. In my view, she dismally failed
to do
discharge this onus. Hence, the Commissioner ought to have found that
the appellant, as the employer, discharged its overall
onus of
proving, on a balance of probabilities, that the employee was guilty
of gross misconduct involving gross dishonesty”.
[5]
[9]
With these principles in mind, I turn to the grounds of review.
[10]
In my view the Applicant misconceives the conduct of the Commissioner
when he made statements seemingly critical and dismissive
of the
Respondent’s case. The Commissioner was actually performing his
job as a reasonable commissioner would. He was critically
analysing
the evidence of the Respondent and thus applying his mind to all
relevant aspects of the case.
[11]
Even if these statement can be viewed as contradictory, they are not
errors which are sufficient to vitiate the entire award,
because the
outcome must be viewed in light of all the evidence before the
Commissioner; not just selective aspects of the evidence.
[12]
I agree with the Respondent that the grounds of review fail to take
into account the above mentioned rules of evidence and
the following
materially relevant facts that were before the Commissioner.
[13]
Firstly, it was common cause that on 24 December 2012 the Applicant
received 44 619 litres of fuel to deliver to Shell
Witbank but
Shell Witbank only received 41167 litres; a shortfall of 3700 litres
of fuel.
[14]
Secondly, the tank was sealed. And yet, 3700 litres of fuel went
missing on the watch of the Applicant, an experienced fuel
delivery
agent.
[15]
Thirdly, and most significantly, in these circumstances, the
Applicant presented false documents to prove the delivery of the
fuel. The only document presented by the Applicant as proof of
delivery of the fuel represented, on its face, that 44 619
litres of fuel were received by Shell Witbank. However, an
examination of the document revealed that it was in fact a reprint of
a delivery notice received on 24 November 2012 from a different
service provider. This document was signed by the Applicant and
the
Operator at Shell depot.
[16]
Another document indicates that during the period recorded as the
time when the Applicant was off loading fuel, an amount of
only 41167
litres of fuel were received at the depot. The document is not signed
by the Applicant or the Operator of Shell. The
document further shows
an incorrect order number.
[17]
In my view, these facts, viewed together, established a prima facie
case of gross misconduct against the Applicant, as set
out in the
charge sheet, which shifted the evidentiary burden to the Applicant
to provide a reasonable explanation for his conduct.
[18]
According to the record and the award, the Applicant’s
explanation was that when the fuel was off-loaded he did not see
the
start and closing figures of the fuel off-loaded and he was not at
the at the point where the Operator printed the documents.
In other
words, he had simply signed the document without ensuring that the
figures were correct.
[19]
In my view the Commissioner reasonably found this explanation
questionable in light of the fact that the Applicant, as an
experienced Driver, would have been well aware of the correct
procedures to be adopted when off-loading fuel and in particularly
his duty to ensure that the amount of fuel off-loaded is accurately
recorded. Moreover, the Applicant failed to provide a proper
explanation for the false documents.
[20]
Thus, in the absence of a reasonable and credible explanation from
the Applicant, the prima facie case proven against the Applicant
became conclusive proof on a balance of probabilities.
[21]
In light of the above, it was not unreasonable for the Commissioner
to conclude that the Applicant acted in a dishonest manner
and failed
in his duties as the only representative of the Respondent during the
delivery of the fuel. And, as a result the Respondent
incurred a
substantial loss of R40 000.00.
[22]
The Commissioner did not pertinently state this, but in my view, it
is reasonable to conclude that the nature of the Applicant’s
conduct, coupled with the fact that he clearly failed to protect the
interests of the Respondent, detrimentally affected the trust
relationship between the Applicant and the Respondent. Accordingly,
the finding that the dismissal was fair was not unreasonable.
The
award is based on materially relevant proven facts.
Order
[23]
The review application is dismissed with no order as to costs.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv Luthuli instructed by A P Shangase &
Associates Attorneys
For
the Third Respondent: Adv C Goosen, instructed by Ngcingwana Inc
[1]
RFBC25409, dated 30 August 2013.
[2]
(2014) 35 ILJ 2176 (LC).
[3]
(2013) 34 ILJ 945 (LC)
[4]
(2011) 32 ILJ 2455 (LAC).
[5]
At para [44].