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[2017] ZALCJHB 238
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Bold Moves 1991 v Mdluli and Others (JR610/2015) [2017] ZALCJHB 238 (20 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JR610/2015
In
the matter
between:
BOLD
MOVES
1991
Applicant
and
MUZI
ABEL MDLULI
First Respondent
COMMISSION
FOR CONCILIATION
Second Respondent
MEDIATION
AND ARBITRATION
HH
MATHEBULA
N.O.
Third Respondent
Heard:
13 September 2016
Delivered:
20 April 2017
Summary:
A commissioner who fails to consider all the evidence before him and
reaches a conclusion which is not supported by the
totality of the
evidence as captured in the record of the proceedings commits gross
misconduct.
JUDGMENT
MTHOMBENI
AJ
Introduction
[1]
This is an application for the reviewing and setting aside of an
arbitration award (the award) dated 1 March 2015,issued by
the third
respondent (the commissioner) under case number MP 9378/14,issued
under the auspices of the second respondent, and the
staying of the
award, pending the outcome of the review application. The application
is unopposed.
Background
[2]
The applicant carries on business which comprises three divisions;
namely, a Sasol filling station, a convenient store and Gallito’s
which is a restaurant.
[3]
On 1 September 2013, the applicant employed the first respondent as
a n Operational Manager in charge
of the
restaurant.
[4]
During 2014, the applicant incurred financial loss amounting to R
297 000.00, including cash sales in excess of R 300 000.00.
[5]
Consequently, during November 2014 the applicant commissioned an
outside company to conduct a full investigation into the losses.
[6]
The outcome of the investigation revealed that the losses were
emanating from the restaurant only.
[7]
This, coupled with other complaints of alleged misconduct by the
first respondent culminated in the applicant charging the first
respondent with acts of misconduct concerning the losses.
[8]
The applicant held a disciplinary enquiry where the first respondent
was found guilty and dismissed.
[9]
Aggrieved by his dismissal, the first respondent approached the
second respondent and referred a dispute, claiming unfair dismissal.
[10]
Following a conciliation meeting where the dispute remained
unresolved, the third respondent assigned the commissioner to
arbitrate over the dispute.
[11]
The commissioner concluded that the dismissal was substantively
unfair and ordered the applicant to pay the first respondent
as
follows:
11.1 R
5 940.00 x 4 months = R 23 760.00;
11.2 R
5 940.00 on November outstanding salary; and
11.3 R
2 682.00 on 14 days leave pay.
Grounds
of review
[12]
The applicant submitted that the commissioner committed a gross
irregularity in the conduct of the proceedings and/or exceeded
his
powers in that he:
12.1
made a finding in which he ignored the evidence before him,
alternatively misunderstood the evidence before
him as the award does
not reflect such evidence.
12.2
did not allow the applicant’s witness to use further statements
which he had in his possession and
would have assisted the applicant
to discharge its burden of proof.
12.3
ignored the applicant’s cross-examination of the first
respondent, as it does not constitute part of
the award.
12.4
misunderstood the legal principles.
12.5
misunderstood the legal principles regulating compensation and how
quantum ought to be determined.
12.6
refused to allow the applicant to present evidence which would have
assisted the applicant in discharging
its burden of proof.
[13]
While the applicant has set out the grounds of review it has,
however, failed to refer in its founding or supplementary affidavits
to specific sections in the commissioner’s award or record of
the arbitration proceedings which this application seeks to
impugn.
The applicant’s heads of argument, albeit not a pleading, do
not also refer to specific portions in the award or
evidence
[1]
.
[14]
In my view, it is incumbent upon the applicant to draw the court’s
attention to the relevant sections of the award or
record which
demonstrate the alleged irregularities to facilitate the
determination of the review application.
[15]
Be that as it may, I shall consider the award and record to determine
the merits of the applicant’s grounds of the review.
The award
[16]
The applicant called Hans Jacob Terblanche (“Terblanche”)
and Arthur Myeni (“Myeni”) as witnesses.
[17]
It was Terblanche’s evidence that the first respondent had
deleted invoices, took money and did not put it in the till.
He added
that the first respondent also deleted stock from the system, thereby
manipulating the gross profit to reflect a figure
that is higher than
it should be.
[18]
In essence, Myeni’s evidence was to the effect that the first
respondent had inflated the amount on invoices brought
for vegetables
and took the difference and his family and friends would come and
have meals at the restaurant without payment.
[19] In his evaluation of
evidence, the commissioner stated:
“
36
Mr Myeni’s evidence lacks substance and credibility. He could
not explain as to why
he failed to report the applicant when taking
cash and erased slips although he was ill-treated by the applicant.
[20]
However, the record reflects that Myeni stated the following:
“
25
Arthur you were in
probation, you were in probation meaning you also you were to
supervise me if I do something to you also you
were to report me if I
do something wrong. I repeat again the question what made you not
report me on that first three months when
you see that? ---This thing
it takes place when we were taken into the detector test. It is
whereby I have mentioned everything,
because you gave me couple of
written warnings that I did not deserve. So I was not having a chance
to speak to Mr Hanco because
he was angry with to me because of the
things Muzi wrote there as warnings as that I am not doing my job
properly…”
[21]
The commissioner disregarded Myeni’s explanation and concluded
as he did, contrary to what the record reflects. Moreover,
there is
no analysis of the extensive evidence of Terblanche on which the
applicant’s version was based.
[22]
The commissioner concluded that the applicant explained the
applicant’s bundle, while Terblanche failed to do so. The
record does not support such a conclusion which defies logic.
[23]
From this perspective, in my view, the commissioner failed to apply
his mind to the evidence before him and denied the applicant
a fair
hearing.
[24]
The commissioner found that:
“
33
In essence, the respondent through its witnesses indicated that the
applicant stole money
or committed gross negligence but such evidence
was countered by the applicant. The respondent failed to discharge
such onus.
39
From the evidence presented, I could not find any causal link between
the alleged stock
loss and the applicant. It is evident that the
applicant was merely dismissed because of his position as a manager.
40.
From the evidence presented by both parties, taking into (sic)
supporting documents as adduced
in this matter, the respondent failed
to prove on a balance of probabilities that the applicant broke the
company rule and the
rule was known to him.
43.
Having duly applied my mind to the facts and merits of the case
before me on balance of
probabilities, I come to the conclusion that
the dismissal was substantively unfair.”
[25]
The commissioner’s findings are at variance with the record.
Instead, he concluded that the applicant had failed to discharge
its
burden of proof, without a clear analysis of the factual dispute,
proper assessment of the credibility of the witnesses and
the
critical weighing up of the evidence.
[26]
It is trite that, while Section 138 (1) of the Labour Relations
Act
[2]
(the LRA) allows a
commissioner a discretion to conduct an arbitration so as to
determine the dispute fairly and quickly, it does
not exempt the
commissioner from properly resolving disputes of fact. It is still
incumbent upon the commissioner to properly assess
the credibility of
the witnesses and critically weigh up the evidence. In my view, in
this regard the commissioner erred in that
his conclusion bears no
relationship to the evidence led by the applicant. The commissioner
failed to accord full and unbiased
attention to the entire evidence
before him.
[3]
[27] In
Lukhanji
Municipality v Nonxuba NO and Others
[4]
,
the Court referred to
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie
and Others
[5]
where the Court
stated that:
“…
To come to a conclusion
on the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses;
their reliability; and
(c) the probabilities. As to (a), the court’s finding on the
credibility of a particular witness will
depend on its impression
about the veracity of the witness. That in turn will depend on a
variety of subsidiary factors, not necessarily
in order of
importance, such as (i) the witness’s candour and demeanour in
the witness box.(ii) his bias, latent and blatant.(iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established
fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b), a
witness’s reliability will depend, apart from the factors
mentioned under (a) (ii), (iv) and (v) above, on (i)
the
opportunities he had to experience or observe the event in question
and (ii) the quality, integrity and independence of his
recall
thereof. As to(c), this necessitates an analysis and evaluation of
the probability or improbability of each party’s
version on
each of the disputed issues. In the light of its assessment of (a),
(b) and (c) the court will then, as a final step,
determine whether
the party burdened with the onus of proof has succeeded in
discharging it. The hard case, which will doubtless
be the rare one,
occurs when a court’s credibility findings compel it in one
direction and its evaluation of the general
probabilities in another.
The more convincing the former, the less convincing will be latter.
But when all factors are equipoised
probabilities prevail”.
[28]
In my view, the above dictum applies equally to commissioners as
triers of fact, for they are enjoined with effectively undertaking
a
proper analysis of the evidence.
[29] I now turn to the
applicant’s grounds of review.
[30]
As alluded to above, the third respondent ignored the evidence before
him and made findings that are inconsistent with the
record.
[31]
Mr Olivier, the applicant’s representative at the arbitration
proceedings, cross-examined the first respondent extensively.
In the
process, Mr Venter put the applicant’s version to the first
respondent. This notwithstanding, the commissioner ignored
this
aspect in his summation or analysis of the evidence, while he
misinterpreted the cross-examination of the applicant’s
witnesses. Thus, the commissioner acted inconsistently and failed to
give the applicant a fair hearing.
[32]
I could not find any indication in the record that the commissioner
refused the applicant’s witnesses to use further
statements
which would have assisted the applicant to discharge its burden of
proof. As indicated above, the applicant failed to
highlight this
aspect in the record.
[33]
Furthermore, the applicant failed to illustrate how the third
respondent had misunderstood the legal principles regulating
compensation and how quantum ought to be determined.
[34]
In this regard, I reiterate that it is incumbent on the applicants to
make out a proper case in the founding and supplementary
affidavits
and establish the grounds of review on which they intend relying with
reference to the award and the record
[6]
[35]
In my view, the commissioner failed to give complete and impartial
attention to the totality of the evidence before him prior
to drawing
his conclusion which is not supported by the evidence led as
reflected in the record. This constitutes a failure to
apply his mind
which is gross misconduct and constitutes a reviewable irregularity.
[36]
In the circumstances, it cannot be said that the commissioner reached
a decision that a reasonable decision-maker could reach.
[37] I am not in a
position as the commissioner to determine the matter.
[38] In the result, I
make the following order:
Order
1.
The
arbitration award, dated 1 March 2015, issued by the third respondent
under case number MP 9378/14, is reviewed and set aside;
2.
The matter
is remitted to the second respondent for the dispute to be heard
afresh by a commissioner other than the third respondent;
and
3.
I make no
order costs order.
___________________
M Mthombeni
Acting
Judge of the Labour Court
Appearances
For
the Applicant : Advocate Andries Van Wyk
Instructed
by
: Seymour Du Toit Basson
No
appearance for the Respondents
[1]
(See:
Naidoo
v National Bargaining Council for the Chemical Industry
and
Others
[2012] 9 BLLR 915
(LC),
Hamandawana
v
Dispute
Resolution Centre
(2014) 35 ILJ 1312 (LC),
Communication
Workers Union
v
SA
Post Office Ltd
[2013] 34 ILJ 626 (LC)).
[2]
Act 66,1995
[3]
(See: Sasol
Mining
v Commissioner Ngqeleni
and
Others
[2011]
4 BLLR 404 (LC).
[4]
[2007] 2 BLLR 130
(LC) at par 27.
[5]
2003 (1) SA 11
(SCA)
[6]
(See:
Naidoo
v National Bargaining Council for the Chemical Industry
above).