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[2017] ZALCJHB 336
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Shabangu v Commission for Conciliation, Mediation and Arbitration and Others (JR1232/2016) [2017] ZALCJHB 336 (29 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR 1232 / 2016
In
the matter between:
VELLIE
PETER
SHABANGU
Applicant
and
COMMISSION
FOR CONSILIATION MEDIATION AND
ARBITRATION
First Respondent
COMMISSIONER
QANITA RUSTIN
Second Respondent
AMALGAMATED
BEVERAGE
INDUSTRIES
BOTTLING (PTY)
LTD
Third Respondent
Heard:
21 July 2017
Delivered:
29 August 2017
Summary:
Review application – evaluating of evidence.
JUDGMENT
KRUGER
A J.
Introduction
[1]
This is an application to review and set
aside an arbitration award issued by the second Respondent (the
commissioner) on 3 May
2016.
[2]
The third Respondent employed the Applicant
as a special events coordinator/roadshow driver.
[3]
The third Respondent dismissed the
Applicant on 9 November 2015. The reason for the dismissal was
misappropriation or theft of two
pallets of 330 ml plastic bottles of
soft drinks. One pallet consists of 120 cases. One case has 24
bottles in it.
Preliminary
Issues
[4]
The first issue is a condonation
application for the failure of the Applicant to timeously deliver the
transcript of the arbitration
proceedings; and for the late filing of
his replying affidavit.
[5]
The second issue is that the Applicant’s
heads of argument differs materially from the original grounds of
review.
[6]
In my view, the Applicant’s conduct
is not such that it warrants the refusal of this application for
condonation and therefor
condonation is granted.
[7]
I will deal with the additional grounds of
review, contained in the Heads of Argument, later in my judgment.
Factual
Background
[8]
The Applicant’s duties included the transportation of
promotional items, the distribution thereof and the management of
promotional stock.
[9]
On 10 May 2015, the Applicant and three of
his colleagues were required to distribute 330 ml soft drinks at a
soccer event in Alexandra.
[10]
After the event, the Applicant made an
unauthorized detour to Weimmerpan and on 12 May 2015, a certain
Chauke had to take promotional
stock to the next sampling event.
[11]
Between 10 and 12 May, two pallets had gone
missing and the third Respondent dismissed the Applicant for his
failure to explain
how the loss came about.
The
arbitration proceedings and the award
[12]
In his analysis the second Respondent
stated that –
“
The
fact that there was overwhelming evidence presented that the
distribution of 225 cases on 10 May 2015 was highly improbable
provides a context within which to determine whether it is probable
that the applicant misappropriated and / or stole two pallets.
The
respondent never found the applicant guilty for the anomaly of 225
cases distributed.
He was dismissed for the empty pallet
seen at the Three Square by Mr. Mabasa and for the pallet that was
missing when the truck
was first opened since 10 May 2015 at the
depot as seen by Mr. Chauke. During this time, the Applicant was the
one who was accountable
for the stock”
[13]
The Second Respondent went further and
found that the witnesses for the Third Respondent were credible and
that the Applicant was
–
“
evasive
as he could not recall basic details expected of the person who was
entrusted with the event and someone with fourteen years
of
experience in the job”
[14]
The second Respondent found that the
dismissal was fair.
Grounds
for Review
[15]
The Applicants contend that the Second
Respondent committed misconduct in relation to his duties and that he
committed a gross irregularity
rendering the award reviewable. The
Applicant relies on the following grounds:
“
a.……
No evidence was presented that I was seen to have taken ABI’s
sampling items;
b.
I was at all relevant times in the presence of my piers;
c
The distribution was overseen by the project manager, Hymie, who did
not
testify at the disciplinary or arbitration hearing;
d
The private investigator that was appointed by ABI could not prove
any misconduct
on my part;
e
No instruction that items were to be distributed to soccer players
and coaches
only was issued;
f
The number of cases misappropriated did not add up to the number of
actual stock missing, considering the fact that sampling items were
distributed on that day.
e
As a result and considering the aforesaid, I respectively contend
that the Arbitrator
incorrectly found that the balance of
probabilities favoured ABI.
Applicant’s
Heads of Argument
[16]
Ms Oschman argued on behalf of the
Applicant that two witnesses testified that they had noticed that two
pallets of soft drinks
were missing. There was no direct evidence of
theft or misappropriation. The Second Respondent therefor had to
resort to circumstantial
evidence in order to reach a finding.
[17]
She
argued that the Second Respondent made credibility findings but that
she did not consider the probabilities that emanated from
the
evidence. Furthermore, the Second Respondent did not consider the
circumstantial evidence and she did not apply the test as
set out in
AA
Onderlinge Assuransie Bpk v De Beer
[1]
.
Lastly, she argued that if one does a mathematical calculation, the
evidence of the Respondent was less probable.
Analysis
[18]
I am prepared to accept that the Heads of
Argument did not introduce a new ground of review but that it
clarified the probability
argument as set out in the original Notice
of Motion.
[19]
The Second Respondent is in a much better
position than this Court to make a finding on credibility and a court
of review must be
reluctant to interfere on such a finding. In this
case, the Second Respondent clearly analysed the evidence and it is
noteworthy
that the Applicant did not challenge the credibility
finding. It is furthermore important to note that material evidence
of the
Respondent were unchallenged and that the Applicant did not
put his version to the witnesses of the Respondent. It is trite law
that the failure to put certain facts in issue while a witness is
being cross examined can lead to the conclusion that those facts
are
undisputed and can be accepted as proven. This rule is dependent on
the degree of sophistication of the representatives of
the parties.
In this case the Applicant was represented by an attorney and no
explanation was given as to why material evidence
were not
challenged.
[20]
The
argument that the Second Respondent made a credibility finding but
did not consider the probabilities is not correct. In
National
Employers’ General Insurance CO v Jagers
[2]
“……
the
court will weigh up and test the Plaintiff’s allegations
against the general probabilities. The estimate of the credibility
of
a witness will therefor be inextricably bound up with a consideration
of the probabilities of the case and if the balance of
probabilities
favours the plaintiff, then the court will accept his version as
being probably true.”
[21]
Based on the evidence that was presented to
the Second Respondent; his finding on credibility; the fact that
material evidence was
not challenged; I cannot find that his findings
were unreasonable and that the probabilities did not favour the Third
Respondent.
The fact that the Second Respondent did not specifically
mention in his award that he considered the various probabilities did
not make the award reviewable.
[22]
The application to review the award of the
Second Respondent stands to be dismissed.
Costs
[23]
Costs should be considered against
the requirements of the law and fairness.
[24]
The requirement of law has been
interpreted to mean that the costs would follow the result.
[25]
I take into consideration various
aspects of social justice and that the Applicant lost his income and
that he is now unemployed.
That a cost order would in all likelihood
have a negative effect on his family.
[26]
In the premises I make the following
order:
Order
1.
The Applicants application for review is
dismissed;
2.
There is no order as to costs.
______________
Werner
Kruger
Acting
Judge of the Labour Court
Appearances:
For
the Applicant
:
Advocate Oschmann
Instructed
by
: Deodat
Marais Attorneys
For
the Third Respondent :
Advocate. C Orr
Instructed
by
Bowmans Attorneys
[1]
1982 (2) SA 603
A at 614 A-B
[2]
1984 (4) SA 437
E AT 440 D