About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 85
|
|
Wadeville Secure (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR557/14) [2017] ZALCJHB 85 (3 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE NO: JR557/14
In
the matter between
WADEVILLE
SECURE (PTY) LTD
Applicant
And
COMMISSION
FOR CONCILIATON,
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
DEPHNEY MAHOSI
Second Respondent
GEORGE
KHAKHU MMAPHAHA
Third Respondent
Heard:
27 July 2016
Delivered:
3 March 2017
Summary:
The commissioner’s decision that the third respondent’s
dismissal was substantively unfair because the applicant
had failed
to tender admissible evidence proving his guilt was rendered
unreasonable by the third respondent’s admission
that he
committed a number of the acts of misconduct.
JUDGMENT
Lallie,
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent who I will refer to as the commissioner
in
this judgment. It is opposed by the third respondent.
Factual
background
[2]
The facts of this matter are that the third respondent was employed
by the applicant as an administrator in September 2010.
He was
dismissed on 6 December 2013 after a disciplinary enquiry found him
guilty of gross negligence in the performance of his
duties. The
negligence took the form of contravening the
National Road Traffic
Act 93 of 1996
in that the third respondent exceeded the speed limit
on 17 November 2013, 18 November 2013. The third respondent was also
charged
and found guilty of exceeding the speed limit on 16 November
2013 at about 16h35 by driving at 83km/h in an area where the speed
limit was 60km/h and caused the bonnet of the applicant’s
vehicle he was driving to open causing damage in the amount of
R23
501.92 to the applicant’s vehicle. He was found guilty of the
charges and dismissed.
[3]
The third respondent referred an unfair dismissal dispute to the
first respondent where the commissioner found his dismissal
both
substantively and procedurally unfair and ordered the applicant to
pay the third respondent compensation in the amount of
R79 000. 00
which is equivalent to remuneration he would have earned over a
period of 10 months. It is that award which the applicant
seeks this
court to review and set aside.
The
award
[4]
The commissioner found the third respondent’s dismissal
substantively unfair because the applicant had failed to prove
that
it dismissed the third respondent fairly. Its witnesses, sought to
rely on a tracker report from the applicant’s vehicle
management systems which reflected that the third respondent had
exceeded the speed limit on several occasions. The witness further
testified that the applicant had a policy, a copy of which was not
tendered as evidence, which required drivers to drive within
the
speed limit. The commissioner rejected the applicant’s evidence
as hearsay because it did not call the originator of
the tracker
report to testify or give reasons why the originator was not called.
The commissioner accepted the common cause evidence
that the third
respondent had closed the bonnet of the vehicle tightly before
leaving the applicant’s premises. She further
accepted the
third respondent’s version that he was not responsible for the
opening of the bonnet while driving the vehicle
which was an old 2003
Ford Bantam model. The vehicle had been involved in an accident and
had no sign which would have warned him
that the bonnet was opening.
He also did not hear a sound suggesting that the bonnet was loose.
[5]
The dismissal was found procedurally unfair because the third
respondent was issued with a disciplinary notice on 20 November
2013
for a disciplinary hearing scheduled for 28 November 2013. On 28
November 2013 the applicant issued the third respondent with
a new
notice, with new charges. He was required to attend the disciplinary
hearing on 29 November 2013. The commissioner found
that the
procedure followed by the applicant was not recognised as fair in
terms of item 4 of the Code of Good Practice: Dismissal,
in schedule
8 to the Labour Relations Act 66 of 1995 (“the LRA”).
Grounds
for review
[6]
The applicant submitted that the commissioner committed misconduct in
relation to her duties as a commissioner and gross irregularities
in
the conduct of the arbitration. Her finding on procedural fairness
was based on false evidence as the correct date and time
of the
disciplinary hearing were not disclosed at the arbitration. A further
ground is based on the commissioner’s failure
to acknowledge
that the tracker report was of vital importance to the applicant’s
case and warn the applicant that she would
make an adverse finding
against the applicant in the absence of a witness verifying the
veracity of the tracker report. The submission
that the commissioner
should have warned the applicant of the consequences of leading
hearsay evidence, is, in the circumstances
of this matter invalid.
The applicant was represented by a representative of an employer’s
organisation who is reasonably
expected to have the necessary skills
particularly after electing to take the responsibility of
representing the applicant at the
arbitration.
[7]
The third respondent admitted having exceeded the speed limit on
several occasions but sought the applicant to prove that the
accident
occurred at the time he was driving at 83km/h at a 60km/h zone. He
denied that the decision on procedural fairness was
based on false
evidence. He further denied that the commissioner had an obligation
to warn the applicant to call the originator
of the tracker report as
a witness.
[8]
The test for review is whether the commissioner’s decision is
one which a reasonable decision-maker could not make on
the material
before the commissioner. An award becomes unreasonable and
susceptible to review if the commissioner has either misconceived
the
enquiry or reached an unreasonable decision
[1]
.
Some grounds the applicant sought to rely on are factually incorrect.
A proper reading of the award does not support the applicant’s
allegation that the ruling on procedural fairness is based on false
evidence. The commissioner considered the common cause evidence
that
new charges were added a day before the disciplinary hearing was
held. The commissioner cannot be faulted for finding the
notice
unreasonably short. The decision that the third respondent’s
dismissal was substantively unfair is based on the absence
of
evidence proving that he made himself guilty of the charges which had
been preferred against him. Part of the gross negligence
the third
respondent was dismissed for is contravention of the
National Road
Traffic Act 93 of 1996
by exceeding the speed limit, while on duty on
16, 17,18 and 19 November 2013. The applicant alleged that it was
found that during
the cause of 16 to 19 November 2013 the third
respondent exceeded the speed limit on several occasions and drove at
83km/h having
exceeded the 60km/h speed limit on 16 November 2013.
Answering to the allegation the third respondent admitted having
exceeded
the speed limit on several occasions. He therefore conceded
having contravened the
National Road Traffic Act 93 of 1996
by
exceeding the speed limit in the performance of his duties. The
commissioner’s decision that the third respondent was
not
guilty of the misconduct which led to his dismissal is inconsistent
with the concession. When the third respondent has submitted
that he
committed the misconduct, a decision to the contrary is unreasonable.
The applicant’s prayer that this matter be
remitted to the
first respondent should, in the circumstances, be granted.
[9]
In the premises the following order is made:
9.1
The arbitration award issued by the second respondent under case
number GAEK10228 and dated
30 January 2014 is reviewed and set aside.
9.2
The matter is remitted to the first respondent to be heard
de
novo
by a commissioner other than the second respondent.
Lallie
J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate Roode
Instructed
by Deon De Bruyn Attorneys
For
the Third Respondent: Advocate Khomola
Instructed
by Noveni Eddy Kubayi Incorporated
[1]
Herholt v
Nedbank Ltd
2013 11 BLLR 1074
(SCA) para 25