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[2017] ZALCJHB 391
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Aphane v Commission for Conciliation, Mediation and Arbitration and Others (JR2790/12) [2017] ZALCJHB 391 (25 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
CASE
NO: JR 2790/12
In
the matter between:
FAIRBRIDGE
CHINA
APHANE
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
E
MAREE
NO
Second
Respondent
GIJIMA
TECHNOLOGIES PEOPLE (PTY)
LTD
Third
Respondent
Date
Heard:
13
July 2016
Date
Delivered:
25
October 2017
JUDGMENT
MOSEBO
AJ,
[1]
Introduction:
1.1.
This is an
application brought in terms of section145 (1) (a) of the
Labour
Relations Act 66 of 1995
as amended (“the Act”). In this
application, the applicant seeks to review and set aside the
arbitration award handed
down by the second respondent (“the
commissioner”) on 13 October 2012, under case number
GAJB20724/12.
1.2.
In her
arbitration award, the commissioner had accepted that the applicant
was guilty as charged and had found his dismissal to
have been
substantively fair.
[1]
The
review application is opposed by the third respondent.
[2]
Preliminary
points:
2.1.
On or about
09 November 2012, the applicant launched the instant review
application. However, the said application was
not prosecuted until
the third respondent, on or about 03 June 2013, launched an
application in terms of
Rule 11
to dismiss the review application.
The application to dismiss was seemingly abandoned after the
applicant had on or about 13 June 2013
served the third
respondent with the record and a supplementary affidavit. However,
for some unexplained reason, the supplementary
affidavit was only
filed of record on 22 January 2015.
2.2.
By that
time, the third respondent had delivered its answering affidavit on
14 October 2013 and the applicant had delivered
his
replying affidavit on 06 November 2013 also raising a point
in
limine
for the late delivery of the answering affidavit. On or about
17 December 2014, the third respondent delivered an
explanatory
affidavit indicating that the applicant had failed to
raise an objection as required by clause 11.4.2 of the Practice
Manual which
had come into effect as from 02 April 2013.
2.3.
The point
in
limine
was then abandoned and the parties agreed to proceed with the review
application as none had raised an objection as required by
the
provisions of the Practice Manual. The applicant has also failed to
file heads of argument despite the fact that he was represented
by
the attorneys both at the CCMA and at these proceedings.
[3]
Background:
3.1.
The
applicant was employed by the third respondent as a Field Service
Engineer (“FSE”) in 2008. The respondent operates
an
Information Technology company that supplies clients with IT support
and equipment. This includes,
inter
alia,
the replacement of outdated laptops with new ones to one major bank.
The third respondent operates a call centre from Johannesburg
that
coordinates its operations. A client is required to call the call
centre to request a service. A call would be logged by the
call
centre and an FSE would be allocated to perform the requested task by
allocating a CHG number to the said FSE for that particular
task.
3.2.
The
applicant’s duty was to attend to the replacement of the old
laptops with new ones and was also required to collect the
old
laptops from the said client. After collection, the old laptops are
supposed to be returned to the third respondent’s
warehouse
situated in Germiston referred to as the stores.
3.3.
When
returning the old laptop, the client is required to sign a form
entitled ‘
client
service form’
[2]
and this form is to be signed by both the client and the FSE. The old
laptop together with the client service form are to be left
at the
stores. This is because most of the said old laptops are still in
working condition and they also contain parts that can
be harvested
and resold.
3.4.
After the
task has been completed, the FSE is required to report back to the
call centre in Johannesburg to indicate that the old
laptop has been
returned to the stores or he can also himself log onto the system and
write a comment indicating that the old laptop
has been returned to
the stores including the serial number of the said laptop. The
coordinator at the call centre will then close
the task based on the
report received from the FSE.
3.5.
It appears
that there is no one who physically receives the returned old laptops
or who physically confirms that same have indeed
been returned as
reported by the FSE. The system is based on trust of the FSE when he
reports that the old laptop has been returned
because he has the
client’s service form and he also records the serial number of
the returned laptop on the system. The
facts set out above are
largely common cause.
3.6.
It was also
not placed in dispute that at the beginning of June 2012, the
third respondent was conducting a reconciliation
of old laptops
relating to another FSE, Eugene, who had given notice of resignation.
In that process, it was established that on
16 March 2012,
Eugene had been called out to a client to install a new laptop and to
collect an old laptop with serial
number L3KH651. The client had
informed Eugene that the applicant had already collected the said
laptop. The third respondent discovered
that according to the
records, the applicant had collected the said laptop from client on
23 February 2012. He was then
approached regarding this
laptop. The applicant indicated that he still had the laptop with him
and he then arranged for same to
be returned to the stores. Once
received and on further inspection, it was discovered that the serial
number at the back had been
scratched out and the hard drive removed.
It was further discovered that this laptop’s serial number was
actually L3KH375
and not L3KH651 as alleged by the applicant.
3.7.
On further
investigation, it was discovered that the laptop with serial number
L3KH375 and other 4 laptops were also collected from
the client by
the applicant but none of them had been returned to the stores. The
serial numbers of the said laptops are L3AB660,
L3HP375, L3HP095,
L3KH674 and L3NG565.
3.8.
The
applicant was then confronted regarding these 5 laptops and in
response he stated that they were with the client. He was then
instructed to collect and return them to the stores. However, he
failed to return anyone of them. On further investigations, the
third
respondent discovered that after completion of several of his tasks,
the applicant would report to the call centre that he
had completed
the task and had returned the old laptops to the stores when he had
not actually returned same. As a result of his
reports, the
coordinators at the call centre would record in the system that the
old laptops had been returned and close the task
as they relied on
the applicant’s word when in fact the applicant’s report
was false.
3.9.
On or about
11 June 2012, the applicant was issued with a notice to
attend a disciplinary hearing to answer the following
complaints
levelled against him:
3.9.1.
Gross Dishonesty in that
you committed fraud in that on various occasions as per the below
mentioned schedule you did not return
the stock/equipment back into
stores. The attached schedule covered some 50 laptops.
[3]
3.9.2.
Bringing the
companies name into disrepute regarding the misplacement of the above
stock
.
3.10.
On or about
14 June 2012, the disciplinary hearing proceeded before Ms
Lerato Mabuso when the employee pleaded not guilty
to both charges.
At the end of the hearing, the applicant was found guilty of charge 1
and not guilty of charge 2 and was dismissed.
[4]
Thereafter, the applicant referred an alleged unfair dismissal
dispute to the first respondent (“the CCMA”) for
conciliation
which was unsuccessful and the matter was referred to
arbitration scheduled before the commissioner on 05 October 2012.
As stated, the commissioner handed down her arbitration award on
13 October 2012 wherein she had found the applicant’s
dismissal to have been substantively fair.
[4]
Grounds
for Review
4.1.
The
arbitration award is attacked on various accounts but mainly on the
ground that the commissioner committed gross irregularity
and failed
to apply her mind to the facts before her when she found that; “
it
is clear from the evidence that the applicant had indicated that the
laptops had been returned and when this was verified by
the
respondent it became clear from the system and a physical check on
the system that the laptops were not there”
.
It was submitted that the laptops were returned to the stores and
recorded as such on the system.
4.2.
It was
submitted that the evidence that was before the commissioner is that
the search on the system and the physical search for
the laptops was
done in the applicant’s absence. The applicant became aware of
these searches during the disciplinary hearing.
It was submitted that
nothing prevented the third respondent from inviting the applicant to
conduct the searches together. It was
submitted that the commissioner
failed to take into account that when the applicant stated that he
could not dispute the third
respondent’s evidence of the
alleged searches conducted both on the system and physically at the
store, that response was
informed by the fact that the applicant was
never invited to the search nor was the search done in his presence.
4.3.
It was also
submitted that the two witnesses for the employer confirmed that they
did not do a physical search at the factory because
the applicant
does not work at the factory/stores.
4.4.
It was also
submitted that the commissioner failed to take into consideration the
fact that the third respondent had admitted that
it could not
attribute the loss of the laptops to the applicant.
4.5.
The
applicant also submitted that the evidence presented at the
arbitration was not presented at the disciplinary hearing but was
produced and invented some days prior to the arbitration.
[5]
Test for
review:
5.1.
The test
for review is settled. The question to be answered by the reviewing
court is whether the decision reached by the commissioner
one that a
reasonable decision maker could not reach?
[5]
This turns on whether a reasonable decision maker could have not come
to the conclusion reached by the commissioner.
5.2.
In
Herholdt
,
[6]
the SCA (per Cachalia and Wallis JJA) explained the
Sidumo
test as follows:
‘
that test involves the
reviewing court examining the merits of the case “in the round”
by determining whether, in the
light of the issue raised by the
dispute under arbitration, the outcome reached by the arbitrator was
not one that could reasonably
be reached on the evidence and other
material properly before the arbitrator. On this approach the
reasoning of the arbitrator
assumes less importance than it does on
the SCA test, where a flaw in the reasoning results in the award
being set aside. The reasons
are still considered in order to see how
the arbitrator reached the result. That assists the court to
determine whether that result
can reasonably be reached by that
route. If not, however, the court must still consider whether, apart
from those reasons, the
result is one a reasonable decision maker
could reach in the light of the issues and the evidence.’
5.3.
In
Mofokeng
,
[7]
the LAC (per Murphy AJA) stated the following:
“
mere errors of fact or law
may not be enough to vitiate the award. Something more is required.
To repeat: flaws in the reasoning
of the arbitrator, evidenced in the
failure to apply the mind, reliance on irrelevant considerations or
the ignoring of material
factors etc. must be assessed with the
purpose of establishing whether the arbitrator has undertaken the
wrong enquiry, undertaken
the enquiry in the wrong manner or arrived
at an unreasonable result. Lapses in lawfulness, latent or patent
irregularities and
instances of dialectical unreasonableness should
be of such an order (singularly or cumulatively) as to result in a
misconceived
inquiry or a decision which no reasonable decision-maker
could reach on all the material that was before him or her.
And,
“
Irregularities or errors in
relation to the facts or issues, therefore, may or may not produce an
unreasonable outcome or provide
a compelling indication that the
arbitrator misconceived the inquiry. In the final analysis, it will
depend on the materiality
of the error or irregularity and its
relation to the result. Whether the irregularity or error is material
must be assessed and
determined with reference to the distorting
effect it may or may not have had upon the arbitrator’s
conception of the inquiry,
the delimitation of the issues to be
determined and the ultimate outcome. If but for an error or
irregularity a different outcome
would have resulted, it will ex
hypothesi be material to the determination of the dispute. A material
error of this order would
point to at least a prim
a
facie
unreasonable result
.”
[8]
[6]
Analysis:
6.1.
The first
ground of review relates to whether or not the commissioner failed to
apply her mind to the facts before her when she
found that even
though the applicant had testified that the laptops had been returned
but when this was verified by the respondent
it became clear from the
system and
physical
check on the system
that the laptops were not there. As stated, the applicant submitted
that the laptops were returned to the stores and recorded as
such in
the system. Further in his evidence in chief, the applicant relied
heavily on the third respondent’s bundle to establish
this
fact.
[9]
6.2.
In my view,
it is common cause between the parties that the third respondent’s
bundle established that all the laptops had
been recorded on the
system as returned to the stores and also confirmed by the
coordinators as such. It is apparent therefore
that the
commissioner’s statement at paragraph 57 of her award is
incorrect. This is because
the
physical check on the system
established a comment made in most cases by the applicant himself
indicating that the old laptop had been returned. It was the
physical
check at the store,
not
on the system
,
that established that the laptops recorded on the system as returned
had actually not been returned. These included the 5 laptops
that the
applicant had undertaken to collect from the client but which he
never collected up to this day.
6.3.
In my view,
the commissioner’s statement at paragraph 57, relating to
physical
check on the system
was a mere error and/or a lapse in her reasoning. My view in this
regard is fortified by the commissioner’s statement at
paragraph 56 where she stated that:
“
The respondent’s
witnesses further indicated that a physical search of the store
showed that the mentioned laptops were not
there
…”
[10]
and further at paragraph
58 where she stated the following:
“
The fact that other persons
had confirmed on the system that the applicant had returned the
laptops does not exonerate the applicant
as they merely write on the
system what he told them. They do not check the store but accept in
good faith that he indeed had returned
the laptops
.”
6.4.
In my view,
this was an immaterial error which produced no distorting effect on
the commissioner’s conception of the enquiry
and/or on the
ultimate result. Therefore, this ground of review is dismissed.
6.5.
The second
ground of review is based on the fact that the evidence that was
before the commissioner established that the search
on the system and
the physical search for the laptops at the stores, was done in the
applicant’s absence. The applicant became
aware of these
searches during the disciplinary hearing. It was submitted that
nothing had prevented the third respondent from
inviting the
applicant to conduct the searches together. It was submitted
that the commissioner failed to take into consideration
that it was
precisely due to his absence, during the physical searches that the
applicant was unable to dispute the third respondent’s
version
concerning the physical search at the stores.
6.6.
At second
sentence of paragraph 56 of her award, the commissioner has stated
that:
“
The applicant testified that
he “cannot dispute” that they had searched the stores as
he had not been asked to accompany
them
.”
[11]
6.7.
In my view,
it appears that the commissioner was quite alive to the above issue
but she did not consider it to be of any significance
on the outcome
and/or the result. However, as was stated in
Herholdt
,
the reasoning by the arbitrator assumes less importance where the
reviewing court can still reach the same result made by the
arbitrator using another route.
6.8.
The
applicant has not referred the court to any authority supporting his
submission that he was supposed to be present when the
third
respondent conducted an investigation both on the system and at the
stores. The only instrument this court is aware of concerning
investigations at work-place is item 4 of schedule 8 to the Act,
which provides that:
“
Fair Procedure
(1)
Normally, the employer
should conduct an investigation to determine whether there are
grounds for dismissal. This does not need
to be a formal enquiry. The
employer should notify the employee of the allegations using a form
and language that the employee
can reasonably understand
…
.”
6.9.
There is
nothing in the above item that indicates that the employee should be
present when the employer is conducting an investigation.
However, in
my view,
Rule 29
of the CCMA rules may be used by any interested
party for the disclosure of the relevant documents and other
evidence. At this
stage of the proceedings an interested party may
seek an agreement on inspection in-loco and/or resort to
Rule 20
of
the CCMA rules which specifically has a clause on on-the
spot-inspection.
6.10.
In this
matter both parties were legally represented at the arbitration and I
see no reason why the CCMA rules were not used to
achieve the desired
purpose. For reasons set out above, the applicant’s second
ground of review falls to be dismissed.
6.11.
The third
ground for review is based on the applicant’s submission that
the two witnesses for the employer confirmed that
they did not do a
physical search at the factory because the applicant does not work at
the factory/stores. The applicant was unable
to refer the court to
the record where the said confirmation was made. However, the record
indicates that under cross-examination,
the applicant’s
representative asked the respondent’s witness, Duncan Nozaic,
whether at any stage he thought of taking
the applicant to the stores
for purposes of showing him exactly where the relevant laptops
were and the witness responded
by stating that the Applicant does not
work in stores. Then the commissioner indicated that she understood
that to mean that the
applicant would not know where the laptops are
at the stores because he does not work at the stores.
[12]
6.12.
In
re-examination, the respondent’s witness stated that he
personally went to the stores to physically check the laptops and
he
also asked the logistics coordinator to do the same.
[13]
The logistics foreman also testified that he and Duncan physically
searched the stores but there was no trace of the laptops in
the
system or physically at the stores.
[14]
6.13.
It is
evident from the record that the evidence indicated that the search
both on the system and physically at the stores were conducted
in the
applicant’s absence because according Duncan, the applicant
does not work at the stores and the commissioner understood
that
statement to mean that the applicant would not know where the laptops
are at the stores because he does not work there. The
impression
created in the applicant’s submission that the third
respondent’s witnesses confirmed that they did not
do a
physical search at the stores is not supported by the record and
therefore this ground falls to be dismissed as well.
6.14.
The fourth
ground of review is based on the applicant’s submission that
the commissioner failed to take into consideration
the fact that the
third respondent had admitted that it could not attribute the loss of
the laptops to the applicant. The applicant
did not refer the court
to any part of the record that supports this submission. The record
indicates that under cross-examination,
Duncan, was asked by the
applicant’s representative on what basis he was alleging that
the applicant might have stolen the
laptops. In response, the witness
stated that he never said that, instead, he had testified that the
laptops were never returned
to the stores and according to him the
applicant was dishonest.
[15]
6.15.
In my view,
the applicant’s submission that the third respondent had
admitted that it could not attribute the loss of the
laptops to the
applicant is not supported by the record. Therefore, this ground of
review also falls to be dismissed.
6.16.
The final
ground of review is based on the applicant’s contention that
the evidence presented at the arbitration was not presented
at the
disciplinary hearing but was produced and invented some days prior to
the arbitration. The evidence referred to in this
instance relates to
the third respondent’s bundle of documents, B1 that was, as I
have already stated, heavily relied upon
by the applicant in his
evidence in chief. The applicant’s reliance on Bundle B1 is
apparent even from the arbitration award
[16]
.
It is therefore ironic for the applicant to rely so heavily on that
evidence but at the same time complain about same.
6.17.
It is trite
that an arbitration is a hearing
de
novo
and that there is nothing inappropriate for a party to present fresh
evidence that was not presented at the internal hearing.
[17]
This ground of review has no substance and falls to be dismissed as
well.
Costs:
[7]
The parties
indicated that they leave the issue of costs in the hands of the
court and this Court finds that it would be fair for
each party to
bear its own costs.
Order:
[8]
In the
premises, I make the following order:
1.
The review
application is dismissed.
2.
There is no
order as to costs.
__________________________
P.M.
Mosebo
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Mr. A Shipalana of Shipalana and Mochaki Attorneys
For
Third Respondent: A J Posthuma of Snyman Inc
[1]
Record arbitration award p115 para 61
[2]
Record V2 p31
[3]
Record V2 p161-164
[4]
Record V2 p166-174
[5]
Sidumo & another v Rustenburg
Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC)
para 110
[6]
Herholdt v Nedbank Ltd
[2013] 11
BLLR 1074
para 12
[7]
Head of the Department of
Education v Mofokeng & others
[2015] 1 BLLR 50
(LAC)
para 32
[8]
Para 33
[9]
Record p61-72
[10]
Record arbitration award p115 para 56
[11]
ibid
[12]
Record p39-40
[13]
Record p49 l15-25
[14]
Record p53-54 & p56
[15]
Record p48-49
[16]
Record p113, arbitration award,
applicant’s evidence
[17]
Country Fair Food (Pty) Ltd v CCMA
(1999) 20 ILJ 1701 (LAC)
para 11 &
Independent
Municipal & Allied Trade Union obo Strydom v Witzenburg
Municipality (2013) 33 ILJ 1081 (LAC
)
para 14-15