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[2017] ZALCJHB 210
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Bidvest Food Services (Pty) Ltd v CCMA and Others (JR696/15) [2017] ZALCJHB 210 (31 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: JR696-15
In
the matter between:
BIDVEST
FOOD SERVICES (PTY) LTD
Applicant
and
CCMA
First Respondent
LESLEY
MARTIN N.O.
Second Respondent
NUMSA
obo L A MONDLIWA and 4 Others
Third Respondent
Heard:
31 May 2017
Delivered:
31 May 2017
EX TEMPORE
JUDGMENT
WHITCHER
J
[1]
The Applicant seeks to review and set aside the Award issued by the
Second Respondent (“the Commissioner”) wherein
he found
the dismissal of the Respondents Loyiso Mondliwa, Tanduxolo Njineli,
Phindile Mtyagi and Makhwenkwe Vokwana to be substantively
and
procedurally unfair and ordered their retrospective reinstatement.
[2]
During October 2014 there was a strike at the Applicant. The
Respondents were dismissed on a charge that on 31 October they
went
to the house of a fellow employee, Tulley Benge and intimidated him
to join the strike.
Evidence
led at the arbitration
[3]
Benge testified that on the morning of 31 October 2014 his neighbour
shouted that there are “guys” outside to see
him. When he
opened his door, he found three of the Respondents on his doorstep.
They told him that ‘Elias’ (Vokwana)
and Mondliwa were in
a car parked thereby and wanted to talk to him. When he got to the
car, Vokwana told him to get into the car.
When he refused, Mtyagi
pulled at him, but he pulled away and proceeded to phone his father.
When he began reporting the matter
to his father, the Respondents
proceeded to drive away but not before Vokwana and Mondliwa
respectively uttered the statements:
“
Keep
on working and you will see what we are going to do with you”
and “
We
are coming back for you”.
[4]
It was put to him that he could not have felt intimidated because he
only reported the matter to the police at 8pm. Benge explained
that
he first wanted to seek advice on the matter and when he reported the
incident to management, they advised him to report it
to the police.
[5]
It was then suggested that he only “cried intimidation”
and reported the matter to the police because management
had “coerced
him” to do so, which he vehemently denied. No substantiating
facts on this defence were put to Benge nor
established in the
Respondents’ evidence.
[6]
It was also put to Benge that since the Respondents had not “come
back for” him as they had allegedly threatened
to do, they
could not have intimidated him.
[7]
Benje agreed that he had phoned one of the strikers, Raymond, but
denied he had phoned him to say he wanted to join the strike.
He said
he had merely wanted to know where the strikers were stationed in
order to avoid them. Despite Benge’s denial, the
Respondents
did not bring Raymond to testify at the arbitration.
[8]
Despite conceding during their opening statement that they had gone
to Benge’s house, the Respondents’ version of
what
transpired there, as testified to by Mondliwa and Mtyagi, was never
put to Benge for a response.
[9]
Horwitz testified that the Respondents were given a hearing. He had
presided over the matter and had given each Respondent an
opportunity
to respond to the allegations in the charge. He said the Respondents
had at first denied going to Benge’s house
but conceded going
there after Benge pointed out each one of them at the hearing.
[10]
It was put to him that the Respondents never initially denied going
to Benge’s house. Horwitz referred them to his notes
and said
he had no reason to fabricate this evidence against the Respondents.
The allegation was not pursued further.
[11]
It was put to him that the Respondents had already been dismissed
when they attended the hearing. Horwitz said he has no knowledge
of
this – all he knows is that during the strike the Respondents
were summoned to a hearing presided over by another person
but did
not attend. After the strike, the outcome of that hearing was
obviously cancelled because a new hearing was scheduled before
him.
It is pertinent to point out here that during the opening statement
on behalf of the Respondents, it was recorded that the
Respondents
were summoned to a disciplinary hearing prior to the one presided
over by Horwitz but did not attend because they were
on strike.
[12]
Only two of the Respondents testified at the arbitration, Loyiso
Mondliwa and Phindile Mtyagi. The Respondents accused of uttering
the
intimidating comments did not take the stand. Mondliwa and Mtyagi’s
version was that they had gone to Benge house to
merely ask him to
join the strike and he had lit a cigarette when they were talking to
him. They denied Vokwana and Mondliwa respectively
uttered the
statements “Keep on working and you will see what we are going
to do with you” and “We are coming
back for you”.
They did not address, and thus did not deny, Horwitz’s
testimony that they had initially denied going
to Benge’s
house.
[13]
The Commissioner rejected
in
toto
Benge and Horwitz’s version and accepted the Respondents’
version. In doing so, the Commissioner failed to take into
account
the following material evidence and considerations.
[14]
Benge’s version was clear and detailed with no
contradictions.
The prospect of any partiality, prejudice or self-interest was not
established.
He
gave a reasonable explanation for only reporting the matter at 8pm
that night. During cross examination his version was not undermined
in any substantive manner.
[15]
The Respondents’ on the other hand gave contradictory versions.
At the disciplinary hearing they initially denied going
to Benge’
house. In this regard, the Respondents made a weak unsubstantiated
attempt to suggest that Horwitz was lying when
he testified that the
Respondents initially denied going to Benge’s house. Horwitz
version was reinforced when the Respondents
failed to address this
issue when they testified. The testimony of Mondliwa and Mtyagi was
deliberately vague and mostly consisted
of bare denials. They did not
explain why it required five of them to visit Benge to politely ask
him to join the strike. Finally,
the version of Mondliwa and Mtyagi
regarding what had occurred at Benge’s house was never put to
Benge for a response and
thus fell to be rejected outright. The
Respondents did not bring Raymond as a witness so their claim that
Benge had phoned Raymond
to join the strike fell to be discounted.
[16]
There was no basis for the finding that Benge was calm and casual
during his encounter with the Respondents because no such
evidence
was tendered, and such finding could not be logically inferred from
the allegation that he lit a cigarette while being
addressed by the
Respondents.
[17]
There was also no basis for the finding that Benje could not have
been intimidated because, as reasoned by the Commissioner,
he
appeared capable of taking care of himself and the Respondents did
not follow up on their alleged threat. The issue was not
whether the
threat was actually carried out or whether Benge actually felt
intimidated. The test is whether it might reasonably
be expected that
a natural and probable consequence of the encounter and words uttered
in the context of a strike would be that
a person perceiving the act
and words fears for his safety.
[18]
If the Commissioner had taken into account all the aforementioned
evidence and considerations, he would have found that
the
evidence points more probably to the conclusion that the Respondents
committed the alleged misconduct than to their innocence
and Benge
reasonably felt intimidated as a result of his encounter with the
Respondents.
[19]
The record of the proceedings demonstrate that there was no basis at
all for the Commissioner’s finding that the dismissal
was
procedurally unfair. The Respondents’ representative placed on
record that they were called to a disciplinary hearing
but refused to
attend because they were still on strike and Howitz’s testified
that he held a disciplinary hearing and gave
all the Respondents an
opportunity to answer to the charge levelled against them was not
disputed during his cross examination.
[20]
In light of all the above, the
ultimate
conclusion reached by the Commissioner is not one that could have
been reached by a reasonable decision-maker on the evidence
on
record.
Order
[21]
The arbitration award issued by the Second Respondent is aside on
review and substituted with an award that the dismissal of
the Third
Respondents was substantively and procedurally fair.
[22] There is no order as
to costs.
________________________________
Whitcher J
Judge of the Labour Court
of South Africa
APPEARANCES:
For
the Applicant: Adv A L Cook, instructed by Allardyce & Partners
For
the Third Respondents: Finger Phukubje Attorneys