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 247
|
|
Thohoyandou Spar v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR2676/13) [2017] ZALCJHB 247 (27 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
reportable
Case
no: JR 2676/13
In
the matter between:
THOHOYANDOU
SPAR
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION (CCMA)
First Respondent
DANIEL
PHEEHA SEOPELA
N.O
Second Respondent
NUPSAW
obo Z MANDIWANE
Third
Respondent
Heard:
20 April 2017
Delivered:
27 June 2017
Summary:
Review application. Arbitrator failed to consider inherent
probabilities where he was confronted with conflicting versions.
Award is reviewed and set aside
.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 11 November 2013 wherein the Second
Respondent (the arbitrator)
found the dismissal of Mr Mandiwane
(Mandiwane) substantively unfair and ordered that he be reinstated
retrospectively.
[2]
The Third Respondent opposed the
application.
Background
facts
[3]
The background facts are herewith
summarised as follows:
[4]
Mandiwane was employed by the Applicant on
6 June 2009 as a general assistant and was dismissed on 3 December
2012 for reasons related
to misconduct. Mandiwane was charged with
offensive, abusive behaviour and gross insubordination in that he
refused to carry out
a lawful instruction when he refused to write an
incident report as required by the Applicant’s policies.
[5]
The Third Respondent referred an unfair
dismissal dispute to the First Respondent and only the substantive
fairness of Mandiwane’s
dismissal was challenged.
The
arbitration proceedings
[6]
During the arbitration proceedings the
Applicant called three witnesses and Mandiwane testified and called
no witnesses. The assessment
of the merits of the grounds for the
review raised by the Applicant calls for a consideration of the
evidence that was adduced.
The
evidence adduced
[7]
The Applicant’s first witness was its
security manager, Mr Jeffrey Ramavhinyana (Jeffrey). He testified
that on 21 November
2012 he patrolled the shop and he went to the
area where the dough for the bakery is made. He found Mandiwane
hiding behind a pallet
packed with mealie meal and drinking Coke Zero
from a 2 litre bottle. When Mandiwane realised that Jeffrey was
there, he threw
the 2 litre bottle on the floor and kicked it under
the pallet and went to the door. Jeffrey asked him whether he was
drinking
the cooldrink and whether he stole it from the shop.
Mandiwane did not respond and Jeffrey asked other employees to assist
him
to shift the mealie meal and the pallet. Once the pallet was
moved, Jeffrey found a 2 litre bottle cooldrink that was half empty
underneath the pallet.
[8]
Jeffrey spoke to Mandiwane and requested
him to go to the office of the store manager to report on the
incident. Mandiwane refused
and Jeffrey reported the matter to the
store manager, who told him to tell Mandiwane to go to the office of
the store manager.
Jeffrey went back to Mandiwane and told him that
the store manager wanted to see him. When Mandiwane refused, Jeffrey
went back
to the store manager and was told to get security to bring
Mandiwane to the office. Jeffrey went to Mandiwane with five security
officers upon which Mandiwane followed him to the store manager.
[9]
At that point the store manager was not in
the office and Jeffrey told Mandiwane that since he saw him drinking
the cooldrink, he
should write a report. Mandiwane refused and showed
signs intending to beat Jeffrey. As Jeffrey and the security officers
were
about to handcuff Mandiwane, the store manager and the
departmental manager arrived. Jeffrey explained to the store manager
what
had happened and that Mandiwane refused to write a report.
[10]
Mandiwane was shouting and insulting
Jeffrey and the store manager asked him to cool down and said to him
that he has to write a
report on what happened and what he knows.
Mandiwane was given a pen and paper to write down what has happened.
He was no longer
cuffed and when given the paper, Mandiwane shouted
and said that he was not going to write the report.
[11]
The store manager and the departmental
managers told Mandiwane to write a report, but he refused and pointed
his finger at the store
manager and it caused a scene in front of
customers to such an extent that the store manager asked Jeffrey and
other security officers
to take Mandiwane out of the shop.
[12]
Jeffrey explained that the Applicant has a
policy that provides that any person who allegedly committed an
offence in the workplace,
should write a report and he as the
security manager should also write a report. The senior management
will then compare the reports,
investigate the incident and make
relevant conclusions.
[13]
Jeffrey testified that Mandiwane was
requested to write a report stating his version in respect of what
happened and the facts that
he knew and his refusal to do so
constituted a refusal to follow a lawful instruction.
[14]
In cross-examination it was put to Jeffrey
that Mandiwane never refused to write the report, but he refused to
write a report where
he was told what to write in the report. Jeffrey
disputed that and testified that he never told Mandiwane what
to write,
he merely told Mandiwane to write a report on what he knew.
[15]
The Applicant’s second witness was
its store manager, Mr Calvin Ralikhuvhana (Calvin). Calvin testified
that the incident
was reported to him by Jeffrey, who told him that
he saw Mandiwane drinking a 2 litre cooldrink. He told Jeffrey to
request Mandiwane
to write a report of his side of the story and
Jeffrey left. After a few minutes he heard a loud noise and went to
investigate
what caused the noise and went to where the noise was
coming from. In the supervisor’s canteen, where the noise was
coming
from, he found Mandiwane, Jeffrey and security officers and
Mandiwane’s hand was cuffed. He immediately ordered them to
uncuff
Mandiwane and he explained to Mandiwane why he should adhere
to the request to write a report and the importance of doing so.
[16]
Subsequently Jeffrey, Mandiwane and the
others followed him and he asked what the problem was. Jeffrey
responded that Mandiwane
was still refusing to write the report and
he once again explained to him the importance of writing a report. At
that point the
departmental manager joined them and he also explained
to Mandiwane the importance of writing the report. Mandiwane was
handed
the incident report papers, but he banged his hand with the
paper on the table, raised his voice and refused to write the report.
They did not want a scene and tried to calm Mandiwane down, but his
voice became louder and he caused an abruption in the store.
As he
caused a scene, Calvin as the store manager asked him to leave the
store. Mandiwane refused to leave and raised his voice
even more and
shouted and pointed his finger at Calvin, at which point he requested
the security officers to escort Mandiwane out
of the store.
[17]
Calvin explained the importance of writing
a report and testified that it is part of the Applicant’s
standard operating procedures
and incorporated in the employee’s
contract of employment. Employees have to write reports when
requested to do so. He testified
that Mandiwane was aware of it as he
has written a report before this incident. He further explained that
the Applicant’s
standard operating procedures are communicated
to employees by placing it on the notice board and sharing it in
meetings with the
employees.
[18]
Calvin testified that dismissal was an
appropriate sanction as Mandiwane was given the instruction to write
a report more than once
and he deliberately refused an instruction
from his seniors. Mandiwane disrespected the store manager and the
departmental manager
in front of other employees.
[19]
In cross-examination it was put to Calvin
that one of the reasons why Mandiwane did not write a report was
because there was no
incident. Calvin testified that the security
manager reported an incident involving Mandiwane and that warranted a
report from
Mandiwane.
[20]
The Applicant’s departmental manager,
Mr Richard Munyangane (Richard) testified that he was standing with
Calvin at the kiosk
in the store when Jeffrey came and informed
Calvin that Mandiwane refused to write the report. Calvin instructed
Jeffrey to tell
Mandiwane that he (Calvin) said that he must write
the report. After a while there was a noise in the canteen and they
went there
and found that Mandiwane was handcuffed. Calvin instructed
the security officers to uncuff him and Calvin spoke to Mandiwane and
emphasized why it was important for him to write an incident report.
They left the canteen as it appeared that Mandiwane understood
that
he had to write the report.
[21]
Shortly thereafter they heard a noise from
the canteen and they saw the security officers and Mandiwane coming
out of the canteen,
approaching Calvin and Richard where they were at
the kiosk in the store. Jeffrey informed Calvin that Mandiwane did
not want to
write the report. Calvin spoke to Mandiwane once again
and urged him to write the report. At this point Richard intervened
and
also emphasized the importance of writing a report. Mandiwane
said he could not write a report because he did not do anything.
Mandiwane was given the incident paper to write a report, but he
started shouting and said they could do whatever they want, he
was
not going to write the report. Calvin then said it would be better
for Mandiwane to leave the store. Mandiwane became aggressive
and
said he would not write the report, he would not leave the store and
he would not do what they were telling him to do. The
security
officers thereafter removed Mandiwane from the store.
[22]
Richard testified that the bakery, where
Mandiwane worked, was one of the departments he managed in his
capacity as departmental
manager. He testified that the Applicant’s
employees know the standard operating procedures as there is a notice
board where
it is displayed for all employees to see and it is
communicated in meetings. He further explained that Mandiwane is
aware of the
procedure to write a report as he had done so before
when he was caught sleeping on duty.
[23]
Richard testified that Mandiwane was issued
with a final written warning on 17 September 2012 for
inter
alia
gross misconduct related to
offensive and abusive behaviout and gross insubordination, which
final written warning was valid for
a period of ten months, thus
still valid when Mandiwane was charged with misconduct in November
2012 and dismissed for misconduct
in December 2012.
[24]
Richard testified that dismissal was
appropriate as Mandiwane was instructed to write a report firstly by
the security manager,
when he refused, the store manager instructed
him on numerous occasions and the departmental manager also explained
to him the
importance of writing the report, but he refused to comply
with the instruction.
[25]
In cross-examination Richard emphasized
that Mandiwane never said that he did not understand that he had to
write a report or why
it was important for him to do so, but
Mandiwane merely stated that he did not want to write the report and
he would not write
it.
[26]
In cross-examination it was put to Richard
that Mandiwane was never requested to write a report, but he was
forced to do so. Richard
disputed this and testified that he and
Calvin explained to Mandiwane why it was important to write a report,
after which explanation
Mandiwane understood, and he was never forced
to write a report.
[27]
It was also put in cross-examination that
Mandiwane did not know about the rule to write a report, which was
also disputed by Richard.
He testified that Mandiwane at no point
indicated that he was unaware of the rule that he had to write a
report. In fact, Mandiwane
has done so on a previous occasion and he
is aware of the rule.
[28]
Mandiwane testified that on 21 November
2012 Jeffrey told him that he knew about the cooldrink and when he
denied drinking the cooldrink,
Jeffrey said he was going to handcuff
him until he told the truth. Mandiwane said that Jeffrey was forcing
him to write a report
and he told him what should be written in the
report. Calvin agreed with Jeffrey, but told him to remove the
handcuffs. Calvin
said to Mandiwane that he should write a report
that he took the cooldrink, which he could not do as he did not take
the cooldrink.
After he refused to write such a report, the security
officers removed him from the store.
[29]
Mandiwane denied that he knew of the
existence of the rule to write a report, he denied any knowledge of
the Applicant’s standard
operating procedures, he denied seeing
policy documents, he testified that he was unable to read properly
and all of the evidence
on the Applicant’s standard operating
procedures and code at work was new and news to him.
[30]
Mandiwane’s version was that he would
not write the report as he was forced in respect of what to include
and write in the
report. He conceded that he has written a report
before, but was also forced to write that report.
The
arbitrator’s findings
[31]
In his analysis of the evidence and
arguments, the arbitrator summarised the issue as that the
Applicant’s case was that Mandiwane
was dismissed for gross
insubordination in that he refused to write a report as required by
the Applicant’s policies and
that Mandiwane’s case was
that he did not refuse to write the report, but refused to be
dictated what to write in the report.
[32]
The arbitrator accepted that there is a
rule that provides that employees are required to write a report when
requested to do so.
He also accepted the Applicant’s version
that Mandiwane was aware of the policies and procedures and his
version that he
was unaware was far-fetched and thus rejected.
[33]
The arbitrator found that it was common
cause that Mandiwane did not write the report he was required to
write but that Mandiwane’s
conduct by not writing the report
was justifiable because Jeffrey and Calvin were dictating the terms
of the report. This finding
is informed by the arbitrator’s
view that Mandiwane was forced to write a report and that Mandiwane’s
version that
he was dictated in terms of what to write in the report
was more probable. Mandiwane was reinstated retrospectively.
Analysis
of the arbitrator’s findings and grounds for review
[34]
The Applicant’s grounds for review
are all related to the arbitrator’s acceptance of Mandiwane’s
version as the
more probable version and his rejection of the
Applicant’s version.
[35]
The Applicant took issue with the fact that
the arbitrator accepted that Mandiwane’s conduct in refusing to
write the report
was justified because Jeffrey and Calvin dictated
the terms or the content of the report. The Applicant’s case is
that the
arbitrator failed to provide a reasonable explanation as to
why he preferred to accept Mandiwane’s version and reject the
evidence of the Applicant’s witnesses that Mandiwane was not
dictated as to what he should write in the report. Further that
the
arbitrator made no credibility findings against the Applicant’s
witnesses and attached no weight to Mandiwane’s
lack of
credibility.
[36]
In short the Applicant’s case is that
the arbitrator provided no proper basis for rejecting its version and
evidence and preferring
that of Mandiwane.
[37]
In casu
the
arbitrator was clearly faced with two conflicting versions. On the
one hand the Applicant’s witnesses testified that Mandiwane
was
requested to write a report in line with the applicable policies and
procedures and he had to write his version of events and
on the other
hand Mandiwane’s version is that he could not write the report
as he was forced and dictated what to include
in the report.
[38]
The
approach to be adopted by arbitrators when faced with two disputing
versions was set out in
Sasol
Mining (Pty) Ltd v Ngeleni NO and Others
[1]
,
where it was held that the arbitrator must conduct an
‘
.
. . assessment of the credibility of the witnesses, a consideration
of the inherent probability or improbability of the version
that is
proffered by the witnesses, and an assessment of the probabilities of
the irreconcilable versions before the commissioner.
As Cele AJ (as
he then was) observed in
Lukhnaji
Municipality v Nonxuba NO and others
[2007] 2 BLLR 130
(LC), while the LRA requires a commissioner to
conduct an arbitration hearing in a manner that the commissioner
deems appropriate
in order to determine the dispute fairly and
quickly, this does not exempt the commissioner from properly
resolving disputes of
fact when they arise.’
[39]
The arbitrator, faced with two conflicting
versions, had to follow the approach as set out by this Court and he
had to conduct an
assessment of the credibility of the factual
witnesses, their reliability and overall assessment of the inherent
probabilities
of the irreconcilable versions before him.
[40]
In
Sasol
Mining
the Court also held that it was
one of the prime functions of a commissioner to ascertain the truth
as to the conflicting versions
before him. The Court held that:
‘
What
he manifestly lacked was any sense of how to accomplish this task, or
which tools were at his disposal to do so. The commissioner
was
obliged at least to make some attempt to assess the credibility of
each of the witnesses and to make some observation on their
demeanour. He ought also to have considered the prospects of any
partiality, prejudice or self-interest on their part, and determined
the credit to be given to the testimony of each witness by reason of
its inherent probability or improbability. He ought then to
have
considered the probability or improbability of each party’s
version. The commissioner manifestly failed to resolve the
factual
dispute before him on that basis. Instead, he summarily rejected the
evidence of each of the applicant’s witnesses
on grounds that
defy comprehension.’
[41]
It is within this context that the evidence
presented and the arbitrator’s assessment of the evidence
placed before him, should
be considered.
[42]
The transcribed record shows that in
cross-examination it was put to Jeffrey that Mandiwane never refused
to write the report, but
he refused to write a report where he was
told what to write in the report. Jeffrey disputed that and testified
that he never told
the Mandiwane what to write, he merely told him to
write a report on what he knew.
[43]
In cross-examination it was put to Calvin
that one of the reasons why Mandiwane did not write a report was
because there was no
incident. Calvin testified that the security
manager reported an incident involving Mandiwane and that warranted a
report from
Mandiwane. This version is significant as it appears to
dispute that there was an incident and a need to write a report.
[44]
In cross-examination it was put to Richard
that Mandiwane was never requested to write a report, but he was
forced to do so. Richard
disputed this and testified that he and
Calvin explained to Mandiwane why it was important to write a report,
after which explanation
Mandiwane understood, and he was never forced
to write a report.
[45]
Mandiwane’s version was that he would
not write the report as he was forced in respect of what to include
and write in the
report. In his evidence in chief Mandiwane presented
some versions that were never put to the Applicant’s witnesses,
for
instance that Jeffrey handcuffed him and told him that he will
remain handcuffed until he has written a report stating that he drank
the cooldrink. Mandiwane also adopted an attitude where he denied
that he knew of the existence of the rule to write a report,
he
denied any knowledge of the Applicant’s standard operating
procedures, he denied seeing policy documents, he testified
that he
was unable to read properly and all of the evidence on the
Applicant’s standard operating procedures and code at
work was
new and news to him. The arbitrator found Mandiwane’s denial
far-fetched and accepted that he was aware of the policies
and
procedures.
[46]
All three of the Applicant’s
witnesses testified that it was explained to Mandiwane why it was
important and necessary for
him to write the report, that employees
have to write reports when required to do so and that they did not
force him to write the
report and did not dictate the contents of the
report.
[47]
In his assessment the arbitrator recorded
that the three witnesses of the Applicant’s testified that
Mandiwane was not forced
to write the report and that they have not
told Mandiwane to write that he was found drinking the 2 litre
cooldrink. The arbitrator
then concluded that Mandiwane was forced to
write the report and his version that he was dictated in terms of
what to write in
the report is more probable. This conclusion, the
arbitrator held, was supported by the fact that Mandiwane was not
charged with
stealing the cooldrink, because there was no evidence.
The arbitrator found that because the Applicant was unable to charge
Mandiwane
with stealing in the absence of the report, showed that
Mandiwane was dictated to write that he was found drinking cooldrink
and
thereby implicating himself.
[48]
Glaringly absent from the arbitration award
is an assessment of the credibility of the witnesses or the inherent
probabilities of
the versions presented. The arbitrator accepted
Mandiwane’s version and rejected the Applicant’s version
without providing
any reasons why the one version is to be preferred
and the other to be rejected.
[49]
The arbitrator’s finding that because
the Applicant was unable to charge Mandiwane with stealing in the
absence of the report,
showed that Mandiwane was dictated what to
write in the report is not only absurd, but also irrational,
unreasonable and disconnected
from the issue he had to decide. This
finding contains no assessment of the probabilities.
[50]
The Applicant’s case is that the
arbitrator made a conclusion that no reasonable decision maker could
make by concluding that
because Mandiwane was not charged with theft,
it proved that he was forced to write a report implicating himself.
In my view there
is merit in this submission.
[51]
The essential ingredients of an assessment
of the credibility of the witnesses and the inherent probability or
improbability of
the versions before him, is missing in the
arbitration award. In my view the arbitrator was wholly incapable of
dealing with the
disputes of fact and he failed to perform one of his
primary functions, namely to resolve disputes of fact.
[52]
The arbitrator did not undertake a full
analysis of the evidence and the probabilities as they presented
themselves during the arbitration
proceedings. The arbitrator did not
consider Mandiwane’s evidence in light of the
probabilities, self-interest and
credibility of the witnesses.
[53]
In
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2]
Ngcobo
J stated at 268:
'[W]here a commissioner fails to have
regard to the material facts, the arbitration proceedings cannot, in
principle, be said to
be fair because the commissioner fails to
perform his or her mandate. In so doing, in the words of Ellis the
commissioner's action
prevents the aggrieved party from having its
case fully and fairly determined. This constitutes a gross
irregularity in the conduct
of the arbitration proceedings, as
contemplated by s 145(2)
(a)
(ii) of the LRA. And the ensuing
award falls to be set aside not because the result is wrong but
because the commissioner has committed
a gross irregularity in the
conduct of the arbitration proceedings.'
[54]
The same considerations apply to an
arbitrator who fails properly to resolve an irreconcilable dispute of
fact. For these reasons,
the arbitrator’s award falls to be
reviewed and set aside.
[55]
In casu
the
arbitrator failed to have any regard to the credibility and
reliability of any of the witnesses, nor did he have regard to the
inherent probabilities of the competing versions before him. That
failure, and the fact that the award may have been different
had the
arbitrator properly acquitted himself, renders the award reviewable
on account of a gross irregularity committed by the
arbitrator in the
conduct of the arbitration proceedings.
[56]
The evidence presented shows that the
Applicant’s version was consistent that Mandiwane refused to
write the report, that
report writing when required to do so is part
of the Applicant’s policies and procedures and that Mandiwane
was requested
to write a report, but refused to do so and that he
acted in an unruly manner when given the incident report papers to
write the
report. In my view the evidence adduced by the Applicant
showed that, on a balance of probabilities, Mandiwane indeed behaved
in
an offensive and abusive manner and that he was grossly
insubordinate when he refused to carry out a lawful instruction when
he
refused to write an incident report as required by the Applicant’s
policies.
[57]
The Applicant also takes issue with the
fact that the arbitrator ignored the fact that Mandiwane still had a
valid final written
warning for similar misconduct at the time of his
dismissal. This is indeed a relevant and material factor that was
ignored by
the arbitrator.
Relief
[58]
This leaves the issue of relief.
[59]
The Applicant seeks for the arbitration
award to be reviewed and set aside and to be substituted with an
order that Mandiwane’s
case is dismissed.
[60]
In the event the award is set aside on
review, this Court has a discretion whether or not to finally
determine the matter.
[61]
The matter could be finally determined
where there is a full record of the proceedings before Court and
where it would be in the
interest of justice to do so.
[62]
I am in a position to decide and finally
determine the matter on the record as it is before me. It is also in
the interest of justice
to determine the matter finally and not to
order a re-hearing of the matter as Mandiwane’s dismissal took
place as far back
as 2012 and in my view, this matter should be and
could be brought to finality.
[63]
This Court has a wide discretion in respect
of costs and in my view this is a matter where the interest of
justice will be best
served by making no order as to cost.
[64]
In the premises I make the following order:
Order
1.
The
arbitration
award issued on 11 November 2013 under case number LP355-13
is
reviewed and set aside;
2.
The arbitration award is substituted with
an order that Mandiwane’s dismissal was substantively fair;
3.
There is no order as to costs.
______________
Connie
Prinsloo
Judge
of the Labour Court
Appearances:
For
the Applicant
: Advocate L Charoux
Instructed
by
: Stanley Moldt Attorneys
For
the Third Respondent : Mr Voyi of Ndumiso Voyi Attorneys
[1]
(2011) 32
ILJ 723 (LC) at 727C-F.
[2]
(2007)
28 ILJ 2405 (CC)
;
[2007] 12 BLLR 1097
(CC),