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[2017] ZALCJHB 15
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Triomf Fertilizers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR472/15) [2017] ZALCJHB 15 (20 January 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable/Reportable
Case
No:
JR472/15
In the
matter between:
TRIOMF FERTILIZERS (PTY) LTD
Applicant
And
COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION
1
st
Respondent
GREYLING P.J.
2
nd
Respondent
JOSEPH
BUYS P
.
3
rd
Respondent
SHERIFF OF THE HIGH COURT
POTCHEFSTROOM
4
th
Respondent
HEARD:
17 January 2017
DELIVERED:
20 January 2017
JUDGMENT
PRETORIUS
AJ
Introduction
[1]
This is an unopposed
application in terms of which the Applicant seeks an order that the
arbitration award made by the second respondent
dated 18 February
2015 be reviewed and corrected or set aside.
[2]
In its stead, the
applicant seeks an order that the dismissal of the third respondent
was fair, alternatively that the dispute be
remitted to the first
respondent for hearing
de
novo
by a
commissioner other than the second respondent.
[3]
The Applicant also
seeks an award for costs in regard to an urgent application to stay a
writ of execution that was heard on 3 December
2015, as well as in
regard to the wasted costs of the hearing of this matter when it was
previously set down on 26 April 2016.
Background
[4]
The third respondent
was employed as a General Worker in the service of the Applicant.
It was alleged by the applicant that
the third respondent made
himself guilty of misconduct whilst executing his duties.
[5]
The following charges
were levelled against the third Respondent:
“
You
are therefore informed of the following transgressions against you
and on which you must respond during your disciplinary hearing
on 30
October 2014 at 13h00;
1.
It is alleged that you made yourself
guilty of theft of copper cable belonging to your employer and/or
another employee of the Company
on 27 October 2014;
2.
It is alleged that you made yourself
guilty to theft of a laptop belonging to your employer and/or another
employee of the Company
on 22 October 2014;
3.
It is further alleged that by making
you guilty of theft of the aforementioned property in paragraph 1
above by removing these items
from your workplace or the premises of
your employer and that you are therefore guilty to dishonesty and in
breach of the conditions
of your service agreement;
4.
You further entered a part of your
employer’s working premises without any authorisation and/or
permission and removed these
mentioned property as stated in
paragraph 1 and 2 above from the employer’s premises without
his consent or knowledge;
5.
It is alleged that you made yourself
guilty to misconduct in that you deliberately absconded and/or was
absent from your workplace
without authorisation during the period
between 17 October 2014 and 21 October 2014;
Alternatively;
6.
During the period between 17 October
2014 and 21 October 2014 you were absent from your workplace without
informing your employer
of your whereabouts or making arrangements
with your employer for your absence or failure to apply for leave;
7.
Acting in bad faith and conducting
yourself in such a manner, that impairs the trust relationship
between, you, management and your
fellow employees”.
[6]
The disciplinary
hearing took place on 30 October 2014. During the disciplinary
hearing, the third respondent did not admit
guilt to abscondment, but
admitted that he did not make any arrangements with management for
his absence on the dates as charged,
but could not give a valid
reason for his absence. The third respondent also did not admit
guilt to theft of the laptop or
copper cable that was removed from
the applicant’s premises and allegedly stolen from the
applicant.
[7]
The third respondent
stated at his disciplinary enquiry that he was sick and that this was
the reason he did not report for work
on the dates mentioned above.
It must also be pointed out, that the dates in relation to his
absence included a weekend.
He, however, did not provide a
medical certificate nor a clinic note to confirm his version.
[8]
During his disciplinary
enquiry, the third respondent was acquitted of the charges in
relation to the theft of copper.
[9]
The third respondent
was found guilty on the charges of stealing the laptop, alternatively
removing it from the applicant’s
premises without
authorisation, and that he was deliberately absent from work from 17
October 2014 to 21 October 2014 without a
valid reason and without
authorisation or made no arrangements with management for such
absence.
[10]
A sanction of summary
dismissal was imposed and the third respondent was dismissed
effective 3 November 2014. The third respondent
referred an
unfair dismissal dispute to the first respondent on 12 November 2014
seeking reinstatement.
[11]
The matter was
eventually arbitrated before the second respondent on 12 February
2015. At such arbitration, the applicant
was represented by an
official of an employer’s organisation and the third respondent
represented himself.
[12]
In an award issued by
the second respondent dated 18 February 2015, the second respondent
concluded that the dismissal of the third
respondent was
substantively unfair, but procedurally fair. As a result, the
second respondent ordered the retrospective
reinstatement of the
third respondent.
[13]
This is the award which
forms the subject matter of this review application.
Review
Grounds
[14]
The applicant relies on
some 15 grounds of review in its founding affidavit which is
unnecessary to repeat here, and will be dealt
with in the analysis
hereunder.
Applicable
Legal Position
[15]
I do not deem it
necessary to extensively address the relevant test to be applied in
proceedings such as this. The test laid down
in the Constitutional
Court in
Sidumo v
Rustenburg Platinum Mines
[2007] ZACC 22
;
2008
(2) BCLR 158
(CC), namely that an arbitration award will be
reviewable if it is one that a reasonable decision-maker could not
reach, is well
established.
[16]
The Labour Appeal Court
confirmed in
Fidelity
Cash Management Services v CCMA
(2008) 29 ILJ 964 (LAC) that there can be no doubt under
Sidumo
that
“…
the
reasonableness or otherwise of a commissioner's decision does not
depend - at least not solely - upon the reasons that the commissioner
gives for the decision. In many cases the reasons which the
commissioner gives for his decision, finding or award will play a
role in the subsequent assessment of whether or not such decision or
finding is one that a reasonable decision maker could or could
not
reach. However, other reasons upon which the commissioner did
not rely to support his or her decision or finding but
which can
render the decision reasonable or unreasonable can be taken into
account. This would clearly be the case where the commissioner
gives
reasons A, B and C in his or her award but, when one looks at the
evidence and other material that was legitimately before
him or her,
one finds that there were reasons D, E and F upon which he did not
rely that could have relied which are enough to
sustain the
decision.”
[17]
Ultimately, whether or
not an arbitration award or decision or finding of a CCMA
commissioner is reasonable, must be determined
objectively with due
regard to all the evidence that was before the commissioner, and what
the issues were that were before him
or her.
[18]
The Labour Appeal Court
in
Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) restated the applicable test as follows:
“
In
short: a reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is
reasonable.”
Analysis
[19]
With reference to the
laptop computer, it is evident that the applicant’s evidence
during the arbitration proceedings was
of a circumstantial nature.
No evidence was tendered of anyone who saw the third respondent
taking such laptop or leaving
the premises with such laptop.
[20]
The charges relating to
the laptop is squarely based on the fact that the third respondent
was with Fouche when he placed the laptop
on his chair and pushed it
under his desk, and thus it is argued that he was the only person who
saw this happening which makes
him the most likely candidate for
having taken such laptop.
[21]
The second respondent
concluded that from the evidence submitted, a number of other
probabilities existed and that those probabilities
were not properly
investigated. As a result, the second respondent concluded, on
a balance of probabilities, that the applicant
had not made himself
guilty of theft of the laptop computer that was in Fouche’s
custody.
[22]
With reference to the
charge of absenteeism, the second respondent pointed out that the
third respondent pleaded guilty and testified
that he was ill.
He also took into account that the third respondent was a first
offender.
[23]
As a result, he
concluded that the dismissal of the third respondent was
substantively unfair and ordered retrospective reinstatement.
[24]
I will now deal with
the various grounds of review as stated in the founding affidavit.
[25]
With reference to the
first review ground, it is unclear how the second respondent’s
failure to have the third respondent
make an opening statement can
constitute a gross irregularity. I am mindful of the fact that
the third respondent was unrepresented
at the arbitration proceedings
and it is common practice in such proceedings for the presiding
commissioner to illicit the relevant
information required from an
unrepresented applicant at the commencement of arbitration
proceedings. Such an approach also
does not fall foul of the
provisions of Section 138(1) of the Labour Relations Act, Act 66 of
1995 (“the LRA”).
It is also unclear to me how such
an approach denied the applicant a fair hearing.
[26]
With reference to the
second review ground, it is correct that at the commencement of the
arbitration proceedings, the proceedings
were reverted into
conciliation proceedings, but this occurred with the consent of both
parties, as is evident from the record.
Furthermore, what
occurs during consensual conciliation proceedings are without
prejudice and cannot be relied upon in arbitration
proceedings. Had
the applicant felt so aggrieved by what occurred during the
conciliation proceedings before the second respondent,
it ought to
have sought the recusal of the second respondent prior to proceeding
with arbitration. This it did not do.
[27]
With reference to the
contention that the second respondent took part in cross-examination
(the third review ground), I have carefully
considered the evidence
alluded to in the applicant’s heads of argument, and again does
not consider the approach adopted
by the second respondent as
infringing upon his obligations in accordance with Section 138(1) of
the LRA. Again, I am mindful
of the fact that the third
respondent was unrepresented and the second respondent was entitled
to follow a more inquisitorial approach
as would have been the case
had both parties been equally represented.
[28]
The fourth ground of
review is unclear as it relates to evidence at the security gate, and
that such evidence was not disputed by
the third respondent. It
is alleged that the applicant was prevented from questioning the
third respondent in this regard.
I could, however, not find the
passage in the record which is quoted in italics in this ground of
review in the founding affidavit.
[29]
With reference to the
second respondent taking into account that the third respondent
alleged that he was ill and that such reliance
constituted a gross
irregularity rendering the award unreasonable (the fifth review
ground), I am of the view that given that it
was common cause that
the third respondent pleaded guilty to the absenteeism charge,
nothing turns on this.
[30]
Much is made of the
absenteeism charge. If the absenteeism charge is the only one
of relevance, and given that the third respondent
was a first
offender, coupled with the fact that two of the days of his absence
included a weekend, then I am unable to conclude
that the alleged
insufficient weight afforded this charge rendered the award of the
second respondent reviewable.
[31]
With reference to the
seventh ground of review, this relates again to the alleged
cross-examination of witnesses by the second respondent,
and has been
dealt with the third ground of review above.
[32]
With reference to the
second respondent not allowing further witnesses to be called as
alluded to in the eighth ground of review,
it is clear from the
record that the applicant intended only calling two witnesses of
which the second witness would have testified
in regard to procedural
fairness. The second respondent concluded that the process
followed by the applicant was procedurally
fair, and accordingly no
prejudice had been suffered by the applicant as a result of the
second respondent disallowing the applicant
to call a witness to
testify in regard to procedure. Incidentally, I also could not
find this reference in the record.
[33]
With reference to the
ninth ground of review, this constitutes a conclusion and does not in
itself indicate on what such conclusion
is based.
[34]
With reference to the
tenth ground of review, I disagree that the second respondent
accepted the reason for the third respondent’s
absence.
It is clear that the third respondent pleaded guilty to this charge.
It appears to me as the conclusion which
the second respondent
reached was that dismissal for a first offense in regard to a
relatively short period of absence was unreasonable.
Such a
conclusion is not a conclusion which could not have been reached by a
reasonable decision maker.
[35]
I disagree that the
second respondent placed undue emphasis on the theft of the laptop,
and failed to properly consider the third
respondent’s absence
from work without a valid reason (the eleventh review ground).
It is clearly apparent that the
second respondent did not consider
that the absenteeism charge alone would warrant dismissal. In that
context, his interrogation
of the theft of the laptop was
appropriate. In that regard, I agree with him that various other
probabilities existed, that were
not properly investigated.
When one deals with circumstantial evidence as is the case here, the
inference sought to be drawn
must be consistent with all the proved
facts. If it is not, then the inference cannot be drawn.
If the facts permit
more than one inference, the most plausible
inference must be selected. See
De
Wet v President Versekeringsmaatskappy
1978 (3) SA 495
(C) at 500E – F.
[36]
In this regard, I agree
whole heartedly with the following passage from
Distell
Ltd
vs CCMA
(2014) 35 ILJ 2176 (LC) at paragraphs
65 and 67:
“
The
danger with circumstantial evidence on the other hand, is that in
addition to the possibility that a witness may be lying or
mistaken,
the evidence may be capable of more than one logical explanation
without it being clear what other possible explanations
exist or the
judge, in analyzing the evidence may embark upon a non sequitur.
Thus circumstantial evidence may, at first
blush, appear to be much
more compelling than it really is, largely because the trier of fact
does not have sufficient knowledge
or understanding of the particular
field to be able to question the evidence and its potency or because
the trier of fact does
not understand how to make sense of it.”
“
One
must be careful to distinguish between an inference and an assumption
or speculation. An inference is drawn from an existing
fact;
speculation has no factual foundation to it”.
[37]
The facts upon which
the applicant relied for the inference drawn that the third
respondent had stolen the laptop computer are:
38.1
the third respondent was the only
person aware of the laptop being hidden on the chair of Fouche;
38.2
the third respondent was further
suspected of the theft due to the fact that he clocked out about an
half an hour later than Fouche;
38.3
It was also suggested that the third
respondent knew which exit gate to use as he knew which security
cameras were functioning properly
and which not;
38.4
Lastly,
it
was believed that because the third respondent was familiar with
computers that he would have stolen the computer.
[38]
Facts which suggest
that someone else may have stolen the laptop computer are:
39.1
Fouche’s office could not lock
and were left open over night;
39.2
Some fifteen people worked on the
floor where Fouche’s office was situated, who could have gained
access to the unlocked office;
39.3
Some of the employees who had access
to Fouche’s office utilised an exit from the premises where
they were not subjected to
any form of search;
39.4
The evidence that some of the people
who had access to the premises were not searched upon their exit from
the premises also militates
against such an inference being drawn.
39.5
The third respondent’s
evidence that he went to shower after leaving
Fouche’s
office and that he was searched on his way home, could not be
contested.
[39]
If one compares the
facts for and against the inference being drawn that the third
respondent had stolen the laptop computer, it
must be abundantly
clear that the inference drawn by the applicant is not the only
reasonable inference or even the most plausible
inference to be drawn
from the facts placed before the second respondent.
[40]
As a result, the
conclusion that the third respondent was not guilty of the theft of
the laptop on the evidence available, and on
a balance of
probabilities, is clearly a conclusion that a reasonable decision
maker could reach.
[41]
On the facts before the
second respondent, I disagree that his conclusion that the dismissal
was procedurally fair, but substantively
unfair is inappropriate,
irrational or unreasonable (the 12
th
review ground), for the reasons alluded to above.
[42]
With reference to the
thirteenth ground of review, this again seems to be a conclusion
rather than a ground of review, and on the
totality of the award
rendered by the second respondent, I am unable to agree with this
review ground. It is immediately
apparent from the second
respondent’s award that he did make an assessment of the
probabilities. In any event, the
probabilities and inferences
to be drawn from the facts, in a matter such as this, would prevail
over issues of credibility.
See
SFW
Group Ltd v Martell et Cie
2003 (1) SA 11
(SCA), as well as
African
Eagle Life Insurance Co v Cainer
1980 (2) SA 234
(W).
[43]
With reference to the
fourteenth ground of review, it is alleged that the third
respondent’s conduct destroyed the trust relationship
between
the parties. As a result, the order of reinstatement, it is
contended, is irrational and unreasonable. The
difficulty I
have with this ground of review is firstly, absent the theft charge
nothing else was placed before the second respondent
in the form of
evidence to suggest that the trust relationship has been destroyed.
To make a submission in closing argument
that the trust relationship
has been destroyed will not suffice. See:
Edcon
v Pillemer NO
(2009) 30 ILJ 2642 (SCA).
[44]
In the absence of a
guilty finding on the theft of the laptop computer, coupled with a
guilty plea to absenteeism, would not in
my view disentitle the third
respondent to reinstatement which is the default position as
contemplated in Section 193 (2) of the
LRA. The second
respondent’s award of retrospective reinstatement is thus not
unreasonable in the circumstances.
[45]
With reference to the
fifteenth ground of review, it is immediately apparent from the award
that all that the commissioner did was
to award back pay from the
date of dismissal to the date of the award, in addition to
reinstatement which had to be effected within
48 hours after becoming
aware of the award. I can see nothing wrong with such an award.
Conclusion
[46]
As a result, and in
dealing with the all-encompassing last ground of review, I disagree
that the award of the second respondent
was unreasonable and not one
that a reasonable decision maker could reach based on the evidence
placed before him. In my
view, the second respondent applied
the test laid down in the
Goldfields
matter alluded to above as he considered the principal issue before
him/her; evaluated the facts presented at the hearing, and
came to a
conclusion that is reasonable.
[47]
In the result, the
review application falls to be dismissed.
Costs
[48]
With reference to the
issue of the costs which had been reserved on 3 December 2015 and 26
April 2016, in terms of Section 162 of
the LRA and in accordance with
the requirements of the law and fairness, I exercise my discretion
not to make any award for costs,
taking into account that:
49.1
the matter is unopposed;
49.2
there will be a
continuing relationship between the parties given the reinstatement
order.
Order
In the
premises, I make the following order:-
1.
The application is dismissed.
2.
No order is made as to costs.
_____________________
Pretorius
AJ
Acting
Judge of the Labour Court
Appearances:
For the
Applicant: M. E. Coetzee
Instructed
by:
Manong Badenhorst Inc