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[2017] ZALCJHB 216
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Makwabe v Commission for Conciliation, Mediation and Arbitration and Others (JR614/16) [2017] ZALCJHB 216 (6 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR 614/16
In
the matter between:
FOOD
AND ALLIED WORKERS
UNION
First Applicant
M.
MAKWABE
Second Applicant
and
COMMISSION
FOR CONCILATION,
MEDIATION
AND ARBITRATION
First
Respondent
M
PHALA
N.O
.
Second
Respondent
SOUTH
AFRICAN BREWERIES
LTD Third
Respondent
Heard:
17 May 2017
Delivered:
06 June 2017
Summary:
Review Application- Test for review application restated.
JUDGMENT
MABASO
AJ
Introduction
[1]
The question that has to be determined in this review application is:
whether the arbitrator considered the principal issue
before him,
evaluated the facts properly presented (both orally and documentary)
at the hearing and came to a conclusion that is
reasonable.
[1]
In order to decide on this, I need to remind myself that the
arbitrator was required to deal with the “
substance
of a dispute between the parties
”.
[2]
[2]
In this matter, the parties are: the first applicant is Food and
Allied Workers Union (the Union), the second applicant is Masixole
Cecil Makwabe (the employee). The first respondent is the Commission
for Conciliation Mediation and Arbitration (the CCMA), the
second
respondent is the Commissioner of the CCMA (the arbitrator), and the
third respondent is South African Breweries Ltd (the
employer). The
CCMA and the arbitrator are not opposing this application. However,
the employer is.
[3]
The applicants, according to the notice of motion, are seeking: to
review and set aside to the arbitration award issued by the
arbitrator under the auspices of the CCMA dated 24 February 2016
under case number GAJB 5980/15; and that the dismissal of the
employee by the employer be declared to be procedurally and
substantively unfair; alternatively, to direct that the dispute
between
the employee and the employer be referred to the CCMA for a
de novo
hearing, before a different commissioner other than the arbitrator;
and that a costs order be made against any party opposing this
application.
[3]
Relevant
background
[4]
At the time of dismissal on 23 February 2015, the employee was
employed by the employer in the
capacity of
Customer Relations Representative and held a position of a shop
steward, and was also a trustee of South African Breweries
Medical
Aid Trustees. The employee was accused and investigated by the
employer, following allegations that he had been in possession
of a
hired vehicle (the car), from Budget Car Rental (the service
provider) between the period of 20 and 22 September 2014 without
the
necessary authorization from the employer. The employer issued the
employee with the charges and summonsed him to a disciplinary
hearing
to answer to the following charges:
“
(1) Gross
misconduct in that you were in possession of a hired vehicle from
Budget from the 20 September to the 22 September
2014 under the SAB
name without permission/authorisation,
(2) Gross misconduct
and/or Dishonesty and/or Bringing the company’s name into
disrepute in that you failed to disclose damages
to the hired vehicle
to the Company or Budget Car Hire.”
[5]
He was then found guilty, on both counts, and his contract of
employment with the employer was terminated on the basis that
he
committed misconduct. Subsequently, the employee being assisted by
the Union declared an unfair dismissal dispute against the
employer,
at the CCMA. Following the unsuccessful conciliation, the matter was
referred to arbitration wherein the arbitrator was
appointed to
arbitrate the dispute between both parties.
The
arbitration hearing and the outcome thereof
[6]
Below, I propose to deal only with the evidence in respect of charge
2 taking into account, that the arbitrator ruled that the
employee
did not violate a rule in respect of charge 1. Before the arbitrator,
the following evidence was presented.
[7]
The first witness for the employer was Mr Van Der Merwe, who stated
that: he works as an Operational Manager for CIC; this job
entails
that he oversee the team leaders for the southern part of the
employer; following allegations against the employee, he
was tasked
to investigate them in the following manner. He spoke to one Belinda
Phillips, of the employer, who advised him that
she did not authorise
that the employee was to have the car – that has been hired
from the service provider – between
20 and 22 September
2014. According to her, the car was to be used by the employee until
19 September 2014. Through
this investigation, he
discovered that the car had been damaged.
[4]
[8]
He made contact with Ms Chantelle Husband/Cooper (Ms Chantelle), an
employee of the service provider, who was working on this
matter. Ms
Chantelle advised him that the car was returned on Monday evening,
22 September 2014, and it had been damaged,
and there was
“…
wet
paint and the next day when he checked the vehicle that there was
damage to the vehicle and they called us in to obviously discuss
the
matter”
.
[5]
[9]
Ms Chantelle further advised him that the vehicle had been scheduled
to be returned by Monday morning. However, an extension
was requested
by the employee that the car be delivered by no later than 17h00. The
car, however, was only returned later in the
evening around 21:30, on
the same date – after the permanent staff of the service
provider had already left and the person
who had remained was the
security officer, Vincent Chauke (Mr Chauke). He further interacted
with both Mr Chauke and
Ms Chantelle, whereby the former
confirmed that when the car was returned it had been resprayed.
[6]
He was convinced
that there was a case that the employee had to answer. Consequently,
the employee was issued with a notice to attend
a disciplinary
hearing, as set out above in paragraph 4.
[10]
The employer’s second witness, Ms Chantelle, was employed as a
sales supervisor of the service provider, whose evidence
can be
summarised thus. She explained the process of a car that has been
rented out and what is required when it is returned. She
is a
supervisor in the area of damages, administration errors, and so
forth.
[7]
Moreover, when one
returns a motor vehicle after hours, a security officer will inspect
it, and then if there is something not
right with it, it will be
brought to the attention of an official of the service provider the
next morning, in order to address
the issue.
[8]
In the matter in casu, Ms Chantelle was directly involved, and
she explained that she learned through one Mshazo that the
employee
returned the car, re-sprayed.
[11]
She then proceeded to inspect the vehicle and explained that—
“
you
could see it was re-sprayed, because it was such a bad spray job”.
[9]
She further explained that the damages were on the bonnet and front
bumper. When the question was posed to her as to how could
she
identify that the car was damaged; she explained that according to
her experience, it had
inter
alia
blotches, and “
the
paint was running, so the bonnet was not smooth it had likely keep
things on it”
and
“
the
paint actually came off on my hands”
.
[10]
[12]
According to her, attempts were made to contact the employee, on the
cell phone number provided. However, there was no answer.
She then
left a voice message advising the employee in respect of the car’s
condition.
[11]
After that, on
the same date, she proceeded to transmit an email to one Michelle Van
Antwerp of the employer, copying the branch
manager of the service
provider. When she was asked as to whether it was possible that,
after the dropping of the car by the employee,
someone might have
driven the car between 21h30 and 08h00 the following morning before
her assessment of same, she said it was
improbable considering that
the car had not even been taken to the filling station.
[12]
[13]
She further explained that in case a rented vehicle is involved in an
accident, there is a procedure that has to be followed,
e.g., a
driver should not repair the vehicle, but notify the service provider
about the accident.
[13]
[14]
The employer also led evidence of Andre Nell Malgue (Mr Malgue), a
motor assessor who qualified as a panel beater in 1971 testified
as
follows: he examined the car on 6 October 2014, who confirmed that
there were repairs to the car which were not properly done
as he had
to put in a new bonnet.
[15]
After all the above evidence not being disputed, the employer
presented evidence of Mr Chauke, who confirmed that the car was
returned after hours by the employee and he did check the car as per
the procedure of the service provider. The bone of contention
was
whether or not, at the time the car was returned, had been damaged
and resprayed. Further, the evidence of this witness was
that he
realised that there was respraying to the car that had been done.
[16]
There were some minor inconsistances in respect of his version, such
as when did he notice that it had been resprayed, and
the information
in the occurrence book. Moreover, what is important about this
witness is what happened on the morning of 23 September
2014, about
10 hours after the car had been returned to the service provider. The
question remained as to when was the car damaged
and resprayed. If,
it was resprayed after being returned by the employee that would mean
Mr Chauke drove the car at midnight, damaged
it and thereafter
managed to get a panel beater to respray it, by 7am on
23 September 2014.
[17]
The employee proceeded to present his case as follows, in respect of
charge 2: he confirmed that he was in control of
the car between
17 and 22 September 2014. He delivered it to Mr Chauke on
behalf of the service provider, who inspected
it and advised him that
“everything was well”, and denied that the car was
damaged at the time he returned it.
[18]
The arbitrator, in respect of the finding in charge 2, acknowledged
that there were some inconsistencies in the evidence of
Mr Chauke,
specifically as to when he inspected the vehicle, and as to what was
discussed with the employee.
[14]
Moreover, on this basis, the arbitrator rejected the evidence of the
employee and concluded that indeed he had failed to comply
with what
was required of him, reporting the accident to both the employer and
the service provider.
Grounds
for this review application
[19]
The applicants’ grounds of review can be summarised thus: that
the arbitrator misdirected himself regarding the evidence
of Mr
Chauke and according to them the alleged misdirection “
distorted
the outcome of the arbitration to such an extent that the results of
the award is unreasonable and thus reviewable”
, and that
taking his evidence “
in the context of all the evidence
before the Commissioner, is the only evidence that directly
implicates [him] in the alleged infliction
of damage to the hired
vehicle, albeit only circumstantially
”.
[20]
The applicants, further say that Mr Chauke’s concession that he
had incorrectly recorded the date of the inspection has
an adverse
effect on the assessment of the liability for the damages to the car
to both the service provider and employer.
[21]
They further allege that—
“
As mentioned,
absent Chauke’s evidence, it is respectfully submitted that
there is no evidence against me as regards charge
(2). There is
similarly devastating impact if chauke’s evidence were to hold
less weight in the overall assessment of the
matter. Accordingly, the
distorting effect of the commissioners misdirection-namely the
unwavering reliance on Chauke’s evidence
- is such that it
changes the outcome of the dispute and led the Commissioner to an
unreasonable result.”
Applicable
principles and application thereof
[22]
In
NUMSA
and Another v SAMANCOR Ltd (Tubatse Ferrochrome) and Others
,
the SCA,
[15]
cautioned that—
“
. . . an appeal
does not lie against the award of an arbitrator. Even if the
reviewing court believes the award to be wrong, there
are limited
grounds upon which it is entitled to interfere.”
[16]
[23]
In the matter of
CUSA
v Tao Ying Metal Industries & Others
,
[17]
the Constitutional Court held that an arbitrator, in order to perform
his duties effectively, is given a measure of latitude in
deciding a
matter before him in a manner that he deems fit. However, what needs
to guide him is that he needs to deal with the
real dispute between
the parties expeditiously and act fairly to all parties in accordance
with the Labour Relations Act.
[18]
In so doing, he should disregard claims and counterclaims which would
not assist, in order to reach a reasonable decision. Moreover,
the
arbitrator is required to reach the desired outcome based on the
evidence that was properly placed before him.
[24]
Once an arbitrator has issued an arbitration award, a party who is
not satisfied with such an award has a right to approach
this Court
by way of review application and has to present grounds which justify
for that arbitration award to be reviewed and
set aside. Thereafter,
the presiding officer faced with a review application, has to answer
the following questions as set out
by the Judge President, in
Goldfields
Mining South Africa (Kloof Gold Mine) (Pty) Ltd v CCMA and Others
[19]
in order to determine such review:
“
(i) In terms of
his or her duty to deal with the matter with the minimum of legal
formalities,
did the process that the
arbitrator
employed give the parties a full opportunity to have their say in
respect of the dispute
?
(ii) Did the
arbitrator
identify
the dispute he was required to
arbitrate (this may in certain cases only become clear after both
parties have led their evidence)?
(iii) Did the arbitrator
understand
the nature of the dispute he or she was
required to arbitrate?
(iv) Did he or she deal
with
the substantial merits
of the dispute? and
(v) Is the arbitrator’s
decision one that
another decision-maker reasonably have
arrived
at based on
the evidence.
”
(Emphasis added.) (I will refer these as six pillar
requirements)
[25]
In the same
Goldfields
matter, the Court in expounding the test as per
Sidumo
,
[20]
indicated that in a review application there is a two stage enquiry
that has to be established, for a party to succeed in the review
application. The first question that has to be answered is whether
there is any gross irregularity on the part of the arbitrator
that is
being alleged by an applicant? If the answer to this question is yes,
then it has to be established that such irregularity
prevented an
applicant to have a fair trial of the issues for it to amount to
unreasonableness.
[26]
My understanding of the applicants’ grounds of review, is that
they do not, dispute the fact that the arbitrator did
give them a
full opportunity to have their say in respect of the dispute which
was before him (pillar requirement 1); they further
do not dispute
that the Commissioner did identify the dispute before him (pillar
requirement 2); and that he understood the nature
of the dispute
before him (pillar requirement 3). However, it appears that the
applicants are saying that the arbitrator did not
deal with the
substantial merits of the dispute, taking into account the evidence
before him, and therefore his decision is one
that a reasonable
decision-maker could not have made (pillar requirements 4, 5, and 6).
[27]
In order to answer the three remaining pillar requirements, one has
to take into account the standard of proof that the arbitrator
was
required to observe and to use, based on the totality of evidence
that was before him. The evaluation of proof applicable is
one that
applies in civil matters, not in criminal cases. In the matter of
Govan v
Skidmore
,
[21]
then Natal Division held that—
“
Now it is trite
law that, in general, in finding facts and making inferences in a
civil case, the Court may go upon a mere preponderance
of
probability, even although its so doing does not exclude every
reasonable doubt. In a criminal case, however, as I understand
it,
every fact material to establish the guilt of the accused must,
unless it is admitted, be established by proof beyond reasonable
doubt, and inferences from facts must, in order to be permissible, be
such as leave no reasonable doubt of their propriety and
correctness.
That is a difference between the proof requisite in civil and
criminal proceedings.
Rex v. Blom
,
supra, was a criminal case, and, in my opinion, it is a fallacy to
suppose that the second principle in
Blom
’s
case represents the minimum degree of proof required in a civil case,
for, in finding facts or making inferences in a civil
case, it seems
to me that one may, as Wigmore conveys in his work on Evidence (3rd
ed., para. 32),
by balancing probabilities
select a conclusion which seems to be the more natural, or plausible,
conclusion from amongst several
conceivable ones, even though that
conclusion be not the only reasonable one
.
”
(Emphasis added.)
[28]
Taking into account this
dictum
, one has to look at the
evidence that was before the arbitrator and his analysis of the
matter as found in the arbitration award,
and check as to whether the
conclusion that he reached is one that a resonable decision maker
could have made. To decide, on these
three pillar requirements, one
has to look at what was the dispute between the parties; the answer
is simple in that it was not
in dispute that the car was damaged and
re-sprayed. However, the question is who damaged and then resprayed
the car. Is it possible
that it was Mr Chauke? And if the answer is
that it might have been him, another question that will arise is when
and under what
circumstances – taking into account that the car
– according to the evidence of Ms Chantelle had not
even
been taken to the filling station when she assessed it on the
morning of 23 September 2014. Again, if one is inclined to think that
it was Mr Chauke, the question is: at what stage did he do it?
The answer to this question is that it is improbable,
that Mr
Chauke used the car, damaged it and got it resprayed the same night.
[29]
The most plausible, natural inference to be drawn based on the
totality of evidence that had been properly presented before
the
arbitrator is that the employee damaged the car, fixed it and took it
to the service provider at night hoping that they were
not going to
be aware that it was involved in an accident. The basis for this,
includes among other things, that the employee was
supposed to return
the car earlier that date, however, he phoned to say he was going to
deliver it at a later stage, by 17h00.
He ended up delivering the car
at 21h30. Further, the employee had a burden to present evidence as
to what could have happened
to the car motor vehicle. For example, as
to whether it was already damaged and “resprayed” when he
took it from the
service provider. I need to emphasise, that I am not
saying the employee had the onus of proof but a burden to adduce
evidence.
[22]
Also taking into
account that the car was not used between 21h30 and 08h00 when it was
assessed by.
[30]
The arbitrator’s conclusion, was that: the version of the
employee is that they inspected the car together with
Mr Chauke
and he indicated that everything was in order. This was never put to
Mr Chauke during cross-examination, and therefore
Mr Chauke’s
version was accepted. He further concludes that taking into account
the probabilities it was clear that the employee
concealed the
damages to the car which is a sign of being dishonest.
[31]
I have taken into account, the grounds of review that the employee
relies on. I am of the view that when the employee approached
this
Court, he meant to appeal the decision of the arbitrator and or
wanted the arbitrator to apply the test which is applicable
in a
criminal matter, which is one of beyond reasonable doubt. I say this
because, in paragraph 7.4 of the founding affidavit,
the applicants
suggest that as the date and time of the inspection as per the
occurrence book were not clear, the liability for
the damages
incurred by both the service provider and employer could have been
different. I disagree with this submission taking
into account the
totality of evidence that was before the arbitrator. In casu, facts
that the arbitrator did not specifically deal
with in the award,
under analysis, do not mean that he did not apply his mind to them,
taking into account the arbitration award
in totality. I therefore
conclude that the arbitrator’s award ticks all the boxes of the
six pillar requirements. Under these
circumstances, the review
application fails.
Order
[32]
Based on the above, the following order is made:
1. The review application is
dismissed.
2. The First Applicant to pay
the costs.
_____________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Mr Makhura
Instructed
by:
Cheadle Thompson Haysom Inc.
For
the Respondent: Mr Orr
Instructed
by:
Bowman Gilfillan Inc.
[1]
Herholdt v Nedbank Ltd
[2013] ZASCA 97
;
2013 (6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA);
(2013) 34 ILJ 2795 (SCA);
Head
of the Department of Education v Mofokeng and Others
[2014] ZALAC 50
;
[2015] 1 BLLR 50
(LAC); (2015) 36 ILJ 2802 (LAC) at
paras 30-33.
[2]
CUSA v Tao Ying Metal
Industries and Others
[2008] ZACC 15
;
2009
(2) SA 204
(CC);
[2009] 1 BLLR 1
(CC); (2008) 29 ILJ 2461 (CC)
[2008] ZACC 15
; ;
2009
(1) BCLR 1
(CC) at para 65.
[3]
Paginated index: Page 2.
[4]
Records: page 35.
[5]
Records: page 50.
[6]
Records: page 140.
[7]
Records:page 166.
[8]
Records:page 170-173.
[9]
Records: page 203.
[10]
Records: page 176; 204.
[11]
Records:page 177.
[12]
Records:page 192.
[13]
Records: page 193.
[14]
Pleadings: paras 4.8 to 4.10.
[15]
[2011] 11 BLLR 1041
(SCA); (2011) 32 ILJ 1618 (SCA).
[16]
Id at para 5. Further in
Herholdt
the Court held at para 25:
“
A review of a CCMA award is
permissible if the defect in the proceedings falls within one of the
grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of
the proceedings to amount to a gross irregularity as contemplated by
s 145(2)(a)(ii), the
arbitrator must have misconceived the nature of
the inquiry or arrived at an unreasonable result. A result will only
be unreasonable
if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator. Material
errors
of fact, as well as the weight and relevance to be attached
to particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only of any consequence if their
effect is to render the outcome unreasonable.”
[17]
Above n 2.
[18]
Id.
66 of 1995, as amended.
[19]
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at
para 20. (
Goldfields
)
[20]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28 ILJ 2405
(CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) at para 110.
[21]
1952 (1) SA 732
(N) at 734.
[22]
DB Contracting North CC v
National Union of Mineworkers & Others
[2015]
10 BLLR 973
(LAC); (2015) 36 ILJ 2773 (LAC) at para 75.