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 287
|
|
Passenger Rail Agency of South Africa (PRASA) v Commission for Conciliation Mediation and Arbitration and Others (JR1052/13) [2017] ZALCJHB 287 (4 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: J
R1052/13
In
the matter between:
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
(PRASA)
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First
Respondent
THEMBEKILE
NSIBANYONI
N.O
Second
Respondent
NATIONAL
TRANSPORT
MOVEMENT
Third
Respondent
GEORGE
NDLOVU
Fourth
Respondent
Heard
:
1 August 2017
Delivered:
4 August 2017
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent (the arbitrator). In her
award, the
arbitrator held that the fourth respondent (the employee) had been
unfairly dismissed by the applicant and ordered his
reinstatement.
[2]
Despite initial opposition to the application, the third and fourth
respondents’ answering affidavit was filed late, with
no
application for condonation. A notice of objection was filed and to
date, there has been no application for condonation filed.
The
application was thereafter enrolled for hearing on the unopposed
motion roll in terms of an order granted by Lagrange J on
30 May
2017, and was dealt with on that basis.
[3]
The employee was employed by the applicant at the Maraisburg station
as a ticket official. He was dismissed after a commuter
was found in
possession of an invalid train ticket at the Roodepoort station, in
circumstances where he claimed to have bought
the ticket from the
employee in Maraisburg. The ticket had been sold earlier the same day
and was referred to as a ‘resold’
ticket. The commuter
positively identified the employee as the person who had sold him the
ticket. The employee was charged
with a number of offences
including one of dishonesty and dismissed. The fairness of his
dismissal was disputed and the dispute
referred to arbitration.
[4]
In the arbitration hearing, two mutually destructive versions of the
relevant facts were advanced. The employee stated that
he had been
working at the Maraisburg station alone and that being the only
person on duty, he sold tickets to commuters as he
was required to
do. He disputed that he had resold the ticket to the commuter on the
day in question, indeed he denied that he
had ever seen the commuter
prior to the arbitration hearing.
[5]
In her award, the arbitrator summarised the evidence, which comprised
testimony by five witnesses for the applicant and two
for the
employee. The applicant’s witnesses included Hele, an
access controller, who testified that on 23 May 2012
he apprehended
the commuter who was travelling on an expired ticket. The commuter
told him that he had purchased the ticket at
the Maraisburg station.
The commuter, Mthembu, testified that after he was apprehended by
Hele, he was taken to the Maraisburg
station and asked to identify
the person who had sold him the ticket. He identified the employee as
the person from whom he had
bought a single trip ticket on the same
afternoon. He was not aware that the ticket given to him was a return
ticket that had been
issued much earlier in the day, since he was in
a hurry and had not examined the ticket. The station manager,
Ntyeneza, testified
that he had gone to the Maraisburg station as
part of the investigation into the incident and stated that the
employee was at the
ticket office window. The commuter identified him
as the person who had sold him an expired ticket. He testified
further that the
employee was supposed to be working at the gate and
not the ticket office. Further, contrary to the applicant’s
policies,
the employee had failed to declare money in his personal
position. In his view, the employee had fraudulently resold the
ticket
for personal gain. The next witness, Jordaan, an investigator
in the applicant’s employ, stated that when he investigated
the
incident concerned, he found money in the employee’s position
contrary to the applicant’s policy which required
employees
working with money to declare money of their possession, and that he
was also concerned that the employee had given the
keys to the ticket
office to a person not employed by applicant. He testified further
that the employee said that he had done the
commuter a ‘favour’
by selling him the expired ticket. The last witness to testify for
the applicant was the chairperson
of the disciplinary hearing. During
cross-examination, he explained why the commuter did not testify to
the internal disciplinary
hearing – his employer would not
release him. The employee’s evidence at the arbitration hearing
amounted to a denial
that he was obliged to disclose his personal
money, and that he was not entitled to be in the ticket office. He
stated that he
had kept accurate records of money collected and that
he had never before seen the commuter who accused him of selling an
expired
ticket.
[6]
In her analysis of the evidence, the arbitrator rejected the
applicant’s version. She did so for what would appear to
be the
following reasons. First, she thought it improbable that there would
have been no one in the ticket office – in other
words, she
accepted the employee’s version that at the relevant time, he
was working in the ticket office and entitled to
be there. Secondly,
the arbitrator thought it significant that the commuter had not given
evidence at the internal disciplinary
hearing. She says the
following:
5.6
It is therefore surprising why the commuter did not testify during
the disciplinary hearing. It is further not clear why the
chairperson
of the disciplinary hearing found it proper to dismiss the applicant
without the evidence of the key witness, being
the commuter who
supposedly bought the ticket from the applicant.
[7]
On this basis, the arbitrator went on to make credibility findings
against all of the applicant’s witnesses and to reject
the
applicant’s evidence ‘in its totality’. She made
the finding of unfair dismissal and issued the order of
reinstatement
on that basis.
[8]
This court is entitled to interfere with an award made by an
arbitrator if and only if the arbitrator misconceived the nature
of
the enquiry (and thus denied the parties a fair hearing) or committed
a reviewable irregularity which had the consequence of
an
unreasonable result. The applicant contends for the latter, on the
basis reflected above. The courts have been clear that the
failure by
an arbitrator to attach particular weight to evidence or attachment
of weight to the relevant evidence and the like
is not in itself a
basis for review; the resultant decision must fall outside of a band
of decisions to which reasonable decision-makers
could come on the
same material (see
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA)).
[9]
The Labour Appeal Court has affirmed that while the failure of an
arbitrator to apply his or her mind to issues which are material
to
the determination of a case will usually be held to be an
irregularity, before the irregularity will result in the setting
aside of the award, it must in addition reveal a misconception of the
true enquiry or result in an unreasonable outcome (see
Head of
Dept. of Education v Mofokeng
[2015] 1 BLLR 50
(LAC), at
paragraph 30). In other words, whether a decision is unreasonable in
its result ultimately requires this court to consider
whether apart
from the flawed reasons of or any irregularity by the arbitrator, the
result could still be reasonably reached in
the light of the issues
and the evidence. However, when an arbitrator fails to have regard
material facts it is likely that he
or she will fail to arrive at a
reasonable conclusion (see
Goldfields Mining South Africa (Pty)
Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and
Arbitration and others
[2014] 1 BLLR 197
(LAC).
[10]
In
Coega Development Corporation (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration
(2016) 37 ILJ 923 (LC),
Myburgh AJ undertook a comprehensive review of the application of
these principles. He noted that where
an arbitrator is required to
resolve a factual dispute, the arbitrator is required to undertake a
balanced assessment of the credibility,
reliability and probabilities
associated with the evidence (see
Sasol Mining (Pty) Ltd v
Ngqeleni NO & others (
2011) 32
ILJ
723 (LC)).
Arbitrators are obliged to weigh all of the relevant evidence and
probabilities before drawing inferences and making
findings (see
paragraph [65] of the judgment, and the reference to
Minister of
Safety and Security & another v Madikane & others
(2015)
36
ILJ
1224 (LAC)). As Myburgh AJ notes,
consistent with the authorities referred to above, a failure properly
to determine a factual dispute
or draw inferences or make factual
findings does not in itself constitute a basis for review –
the decision to which
the arbitrator comes must be substantively
unreasonable.
[11]
The applicant contends that the arbitrator’s award is
reviewable because the arbitrator committed misconduct or a gross
irregularity in the conduct of the proceedings under review by making
findings that are not sustained by the evidence, by ignoring
relevant
evidence and in particular, by rejecting the evidence of all of the
applicant’s witnesses without any proper basis.
The applicant
further contends that the arbitrator failed to comprehend that the
arbitration proceeding was a hearing
de novo
and that the
arbitrator committed a reviewable irregularity by making a finding of
procedural unfairness in the absence of any
reference to or analysis
of the evidence to sustain that finding.
[12]
I deal first with the arbitrator’s rejection of the evidence of
the applicant’s witnesses on the basis that the
commuter did
not testify at the disciplinary hearing. This is a wholly irrational
basis on which to reject the evidence of five
witnesses, whose
evidence, as it appears from the record, is internally and externally
consistent. It is trite that an arbitration
proceeding is a hearing
de novo
. The fact that the commuter did not give evidence at
the internal disciplinary hearing was entirely irrelevant. It is
certainly
not a basis on which to reject the evidence of all of the
applicant’s witnesses, or to call their credibility into
question.
On this basis alone, the arbitrator’s award stands to
be reviewed and set aside. Whether the applicant was entitled to be
in the ticket office at the time he was confronted with the
allegations of misconduct is similarly no basis on which to reject
the evidence of all five of the applicant’s witnesses. Even if
it were more probable than not that the applicant was entitled
to be
in the ticket office, that finding goes only to the limited issue of
the contention that he had no right to be there –
it is not a
sufficient basis to uphold the employee’s version in its
entirety given the weight of the evidence against him,
especially in
relation to the dishonest act of reselling a ticket.
[13]
More fundamentally, what the arbitrator had before her was a material
dispute of fact. The arbitrator did not apply any of
the principles
relevant to the determination of a factual dispute. She simply
elected to disbelieve all of the applicant’s
witnesses and to
make credibility findings against each of them in circumstances where
there is no reasoning apparent from the
award to sustain these
findings, nor any basis on the record to do so. It does not appear
from the record, even if I were to accept
that the arbitrator was not
impressed by the evidence of Tyengeza, that the arbitrator was
entitled to call into question the credibility
of the remaining four
witnesses. There is also no attempt by the arbitrator to make any
assessment of the inherent probabilities
of the versions that served
before her. That evidence included a version by the commuter that the
employee had sold him and expired
ticket, a version that was
sustained by the direct evidence of Jordaan, who also testified that
the employee admitted to him that
he had sold the ticket to the
commuter as a favour.
[14]
In short, the arbitrator’s failure to take into account all of
the material evidence before, her failure properly to
assess the
credibility of the witnesses who testified at the proceedings under
review and her failure properly to assess the inherent
probabilities
of the respective versions that served before her, renders the award
one to which no reasonable decision maker could
have come on the
available material. The outcome of the proceedings cannot be
sustained on the basis of the record, regardless
of the arbitrator’s
misdirection. The evidence overwhelmingly points to the employee’s
guilt. In my view, the arbitration
award accordingly stands to be
reviewed and set aside.
[15]
There is no merit in referring this matter for rehearing. The
arbitration award under review was issued more than three years
ago.
Further, the record is sufficient for the court to a decision on the
merits and to substitute the arbitrator’s award.
I have no
hesitation in concluding that on the probabilities, the employee
committed the acts of misconduct with which he was charged
and that
his dismissal was justified. Finally, in relation to costs, there is
no reason why costs ought not to follow the result.
I
make the following order:
1. The arbitration award issued by the
second respondent on 30 April 2013 under case number GAJB 30373/12 is
reviewed and set aside
2. The award is substituted by the
following:
‘
The applicant’s claim of
unfair dismissal is dismissed’.
3. The third and fourth respondents,
jointly and severally, are to pay the costs of these proceedings, the
one paying the other
to be absolved.
_____________________
André
van Niekerk
Judge
APPEARANCES
APPLICANT:
Mr. P Masebo, Werksmans Attorneys