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[2017] ZALCJHB 511
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SA Metal Group (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1430/16) [2017] ZALCJHB 511 (25 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR1430/16
In
the matter between
SA
METAL GROUP (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
Third Respondent
AND
ARBITRATION
COMMISIONER:
A MAKGOBA
Second Respondent
LEWUSA
obo
MEMBERS
Third Respondent
Heard: 19 July 2017
Delivered: 25 October
2017
Summary: The Review
application: The individual Third Respondents dismissed, among
others, for theft of diesel and use of company
property without
authorisation. The Second Respondent committed an irregularity as he
failed to deal with all issues before him.
Neither did he apply
circumstantial evidence principles to the facts before him. He found
in favour of the individual Third Respondents
whose evidence was not
properly before him. The award set aside and remitted to the First
Respondent.
JUDGMENT
MOLEBALOA
AJ.
Introduction
[1]
This is a
review application launched in terms of Section 145 of the Labour
Relations Act
[1]
(the LRA) to
have the arbitration award issued under case: GAEK 2640-15 dated 10
August 2015 reviewed and set aside. The award
was issued by the
Second Respondent, A Makgoba (the commissioner), who acted under the
auspices of the First Respondent, the Commission
for Conciliation,
Mediation and Arbitration (the CCMA). The union, LEWUSA, acted on
behalf of its members, Dlamini and others,
who for purposes of this
application will be referred to as “individual Third
Respondents”.
[2]
This matter
originates from Cape Town but parties agreed that it be heard in the
Johannesburg seat of this Court as there was a
pending application
already filed here for the enforcement of the same award. The clear
logic in this respect was that should the
review application succeed,
the enforcement application would naturally fall off. As the papers
stood, I am required to make an
order enforcing the award in the
event the review application is dismissed.
Background
facts
[3]
The
individual Third Respondents were all employed as truck drivers by
the Applicant.
.
The Applicant experienced high volumes of diesel consumption in its
trucks. It then launched an investigation through which it
discovered
that its drivers were routinely deviating from their scheduled routes
and stopping at a truck stopping point located
in Putfontein.
[4]
The
Applicant further discovered that the anti-siphoning devices fitted
into the trucks’ diesel tanks were tampered with and
some even
broken. The investigations revealed that the stolen diesel was sold
at Putfontein and such was confirmed in the video
footage captured
during investigation. Though none of the individual Third Respondents
were captured selling diesel, the footage
however confirmed the
illicit diesel transactions taking place at Putfontein.
[5]
Having
discovered that the individual Third Respondents made several
unauthorised stops at Putfontein and also that their trucks
used high
volume of diesel, the Applicant then put the following charges to the
individual Third Respondents:
“
Dishonesty in that on several
occasions from June 2014 to January 2015 you deviated from your
scheduled route. On the days you deviated
from scheduled route,
diesel consumption on your vehicle was above average. Thus the
probability exist that you were involved in
defrauding the company
diesel.
Breach of company policy and procedure
in that on several occasions between June 2014 and January 215 you
deviated from scheduled
route.
Fraud and theft in that from June 2014
to January 2015 on numerous occasions you led the company to believe
that you were drawing
diesel from the company’s tanks for the
purposes of conducting the company’s business. The company was
induced to allow
you to draw such diesel as a result of your
misrepresentations. In fact you intended to sell part of the diesel
drawn and keep
proceeds. In fact you did sell part of the diesel
belonging to the company and kept the proceeds.
Serious misconduct in that you used a
company vehicle for personal use without authorisation.”
[6]
The
individual Third Respondents were found guilty and subsequently
dismissed. Unhappy with their dismissal, they referred a dispute
of
unfair dismissal with the First Respondent.
The arbitration award
[7]
The
commissioner however found that the individual Third Respondents did
not contravene any rule or standard regulating conduct
of siphoning
diesel from the truck as no evidence was led in the arbitration
proceedings. He further found that the individual
Respondents did not
tamper or break the anti-siphoning devices. He also found that there
was no rule in the workplace stating that
the drivers should use
specific routes when travelling to a particular destination. He
accepted the explanation that the individual
Respondents drove to
Putfontein to buy food. He ultimately ordered the Applicant to
reinstate the individual Third Respondents
with back pay.
The review application
[8]
Unhappy
with the award, the Applicant launched a review application citing
numerous grounds. According to the Applicant, the commissioner
committed the following mistakes:
(i)
Made a mistake of fact and law in finding that the no anti-siphoning
rule exists
in the Applicant’s workplace.
(ii)
Made a mistake of fact and law in finding that no “specific
route” rule
exists in the Applicant’s workplace.
(iii)
Made mistakes of fact as he attributed some of the evidence as the
evidence adduced by
the Applicant’s witnesses when such was not
the case.
(iv)
Made mistakes of fact and law in evaluating the circumstantial
evidence that was properly
before him.
(v)
Made mistakes by failing to determine whether or not the individual
Respondents were
guilty of using company vehicles for personal use
without authorisation.
The law
[9]
The test
for review is settled. It is whether or not the decision reached by
the commissioner is one that a reasonable decision
maker could not
reach.
12
.
In
Sidumo and Another v Rustenburg Platinum Mines Limited and Others
[2]
the Constitutional Court held that the review grounds set out in
section 145 of the LRA have been suffused by the standard
of
reasonableness, and that an arbitration award of the CCMA or a
bargaining council is reviewable if the decision reached by the
commissioner was one that a reasonable decision–maker could not
reach.
[10]
In
Andre
Herholdt v Nedbank Limited, (Congress of South African Trade Unions
as amicus curiae)
[3]
the Supreme Court of Appeal (the SCA) had an occasion to interpret
the grounds of review set out in section 145 of the LRA as developed
in the
Sidumo
Case. The SCA described the standard of review as follows:
“
In summary the position
regarding the review of CCMA award is this: A review of a CCMA award
is permissible if the defect in the
proceedings falls within one
grounds in section 145 ( 2 )(a) of the LRA. For a defect in the
conduct of the proceedings to amount
to a gross irregularity as
contemplated by section 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 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.”
[11]
Accordingly,
the SCA, in effect, held that in order to establish the existence of
a gross irregularity as a basis for succeeding
with a review
application, it is necessary to demonstrate that either of the
following circumstances exist:
11.1. The
Commissioner misconceived the nature of the enquiry; or
11.2. The
result ultimately arrived at by the Commissioner was unreasonable.
[12]
In
Gold
Fields Mining South Africa (PTY) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and other
[4]
the court introduced a two stage test for review. First there must be
an irregularity and second that irregularity must be material
to the
outcome. The Court went further and the following was said at
paragraphs 15
:
“
What is required is first to
consider the gross irregularity that the arbitrator is said to have
committed and then to apply the
reasonableness test established by
Sidumo
.
The gross irregularity is not a self standing ground insulated from
or standing independent of the
Sidumo
test. That being the case, it serves no purpose for the reviewing
court to consider and analyse every issue raised at the arbitration
and regard a failure by the arbitrator to consider all or some of the
issues albeit material as rendering the award liable to be
set aside
on the grounds of process review.
In short: A reviewing court must
ascertain whether the arbitrator considered the principle issue
before him/her; evaluated the facts
presented at the hearing and came
to a conclusion that is reasonable.”
[13]
In
Head
of the Department of Education v Mofokeng and others
[5]
[2015]) (
Mofokeng
),
the Court stated the following at paragraph 33:
“
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 enquiry. 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
determine 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 issue to be
determined and the ultimate outcome. If but for an error or
irregularity a different outcome
would have resulted, it will ex
hypothesis be material to the determination of the dispute. A
material error of this order would
point to at least a prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision
in issue; the range of relevant
factors informing the decision, the nature of competing interest
impacted upon by the decision,
and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question
was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity
or error material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead
to no fair trial of the issues,
with the result that the award may be set aside on the grounds alone.
The arbitrator however must
be shown to have diverted from correct
path in the conduct of the arbitration and as a result failed to
address the question raised
for determination.
[14]
In interpreting this case, the court in
Shoprite
Checkers v Commission for Conciliation, Mediation and Arbitration and
others
[6]
stated the following at paragraphs 9 and 10:
“
[9]
This dictum in Mofokeng says many important things about the review
test. But for present
purposes, consideration need only be given to
the guidance that it provides for determining when the failure by a
Commissioner
to consider facts will be reviewable. The dictum
provides for the following mode of analysis:
(a)
The first enquiry is whether
the facts ignored were material, which will be the case if a
consideration of them would (on probabilities)
have caused the
Commissioner to come to a different result;
(b)
If this is established,
the (objectively wrong) result arrived at by the Commissioner is
prima facie unreasonable;
(c)
a second enquiry must then be
embarked upon-it being whether there exist a basis in the evidence
overall to displace the prima facie
case of unreasonableness, and
(d)
If the answer to this enquiry
is in the negative, then the award stands to be set aside on review
on the grounds of unreasonableness
(and vice versa).
[10]
The shorthand for all of this is the following: where a Commissioner
misdirects him or
herself by ignoring materials facts, the award will
be reviewable if the distorting effect of this misdirection was to
render the
result of the award unreasonable.”
[15]
Having considered the above cases, it is axiomatic that it is the
reasonableness of the award that becomes a focal point of
the
enquiry. There must be an error or irregularity as envisaged in
section 145 of the LRA. It is however not any error that vitiates
the
award. The error must be material enough to influence the result and
must therefore not be displaced even if the overall evidence
is taken
into account.
Evaluation
[16]
The Applicant argued that the decision reached by the commissioner is
one that a reasonable decision maker could not reach.
In its argument
it relied on several grounds of review as enumerated above. I
hereunder deal
ad
seriatim
with those grounds.
Made
a mistake of fact and law in finding that the no anti-siphoning rule
exists in the Applicant’s workplace.
[17]
I find this ground of review misplaced. The commissioner never
indicated in his award that there was no anti-siphoning rule.
He
however found that the individual third respondent did not contravene
any rule or standard regulating conduct in siphoning diesel
from the
trucks
[7]
. I must admit that the
commissioner did not articulate his thoughts in a succinct manner.
However, reading the award in conspectus,
it is apparent that he
accepted the existence of a rule against siphoning diesel but
continued to find that such rule was not breached
or contravened. It
is on this basis that I find the attack of the award on this ground
unsustainable.
Made
a mistake of fact and law in finding that no “specific route”
rule exists in the Applicant’s workplace.
[18]
The commissioner in his award
[8]
under survey of Venter’s evidence indicated that Venter
referred to page 405 of bundle B which states that “
all
trucks will be on route to customers / mills or at the loading or
offloading area
”.
Regard should be had that charges are not always drafted in an
impeccable language. So are the policies put in place to
regulate the
employee’s behaviour at workplaces. That being the case, it is
however axiomatic in the matter at hand that
a rule is in place
directing drivers to observe the road to determined destinations.
This is what is meant when the employer said
all trucks will be on
route to customers, etc. To expect the employer to identify the
routes by names is grotesquely unreasonable.
A driver would therefore
know that he is prohibited from driving from North to East and then
to South when there is a road connecting
North directly to South.
[19]
The commissioner completely misconstrued this rule as according to
him there was no rule identifying specific routes to be
used when
travelling to a particular destination. The rule exists. Drivers must
drive from loading to offloading points. Drivers
must be treated with
a degree of respect as they are (fairly) complicated employees. They
are able to read road signs and interpret
them. They will know if
they use a roundabout. The reasons for such will be either valid or
invalid. This however does not mean
that there is no rule regulating
the specific routes to be used by drivers. As Venter indicated, they
are expected to use the fastest
and safe routes. The commissioner’s
finding is thus not supported by the evidence properly before him.
[20]
In this case, as I understand the Applicant’s case, there were
instances where a driver will totally detour from the
route to his
destination and go to Putfontein as if it was a sanctification
ritual. The commissioner in those instances was then
called to
determine whether a rule as identified by Venter was breached. He
failed to do so. He treated Putfontein, much against
the evidence
led, as an exit point which drivers must go through. By invoking such
an approach, he denied himself an opportunity
to deal properly with
why drivers and in particular the individual Third Respondents had to
be baptized at Putfontein before proceeding
to their identified
destinations. Reference to the buying of food as demonstrated
hereunder provides no assistance.
[21]
The commissioner refers in his award, with a subtle approval, that
all drivers went to buy food at Putfontein. Such an approval
does not
come without difficulties. Venter indicated that the drivers are not
allowed to stop when the truck was loaded
[9]
unless they contact the control room. He further indicated that
drivers are allowed to buy food on route
[10]
.
The commissioner appeared to have accepted the individual third
respondents’ explanation that they went to Putfontein to
buy
food. The question is: was the explanation reasonable in light of the
facts of this case? Did the commissioner interrogate
the
reasonableness or otherwise of the explanation? He did not. Failure
to apply his mind on these material issues constitute material
irregularity.
[22]
A further difficulty with the commissioner’s approval of
drivers going to Putfontein is that not all drivers alleged
to have
gone to Putfontein to buy food. He however appeared to have imputed
this reason in an overarching manner to all drivers.
He did not
consider individual reasons for individual drivers. I understand why
he could not look into those individual reasons.
It is only Dlamini
who testified. Notwithstanding the fact that such drivers did not
testify he however invoked the “one
size fits all”
approach and applied it to the rest of the individual Third
Respondents. Even though some of the drivers’
reasons were
alluded to, the probative value of those reasons depended on the
credibility of the drivers who did not testify.
[23]
It is clear that the rule exist to use a direct route from loading to
offloading and such did not have to be spelt out by providing
route
names. Deviation from the route must be accompanied by valid reasons
not “one size fit all” kind of a reason.
The
commissioner’s finding that such rule does not exist is thus
not supported by the material evidence that was properly
before him.
Made
mistakes of fact as he attributed some of the evidence as the
evidence adduced by the Applicant’s witnesses when such
was not
case.
[24]
The Applicant contended that the commissioner committed an
irregularity by attributing evidence that the employees went to
Putfontetin to buy food as there is a variety of food with reasonable
prices to Venter when it was Dlamini who mentioned that during
his
testimony. This ground of review is also misplaced. The commissioner
did not find such to originate from Venter. He recorded
what Venter
testified to. Venter said that that was what the drivers told him.
Venter therefore did not own up those reasons and
such was also not
the commissioner’s finding. This ground of review is dismissed.
Made
mistakes of fact and law in evaluating the circumstantial evidence
that was properly before him.
[25]
In the case of
R
v Blom
[11]
the court held as follows about circumstantial evidence: “
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored: (1) the inference sought to be drawn must
be
consistent with all the proved facts. If it is not, the inference
cannot be drawn. (2) The proved facts should be such they
that they
exclude every reasonable inference from them save the one sought to
be drawn. If they do not exclude other reasonable
inferences, then
there must be a doubt whether the inference sought to be drawn is
correct.”
[26]
Evidence led showed that Putfontein was not on route to all customers
or destinations the individual third Respondents drove
to. Actually
according to the Applicant, in some instances, there was actually no
reason to via Putfontein. It was also in those
trips that the diesel
consumption was unreasonably high. Evidence was also led to the fact
that anti-siphoning devices were tampered
with and that diesel was
sold at Putfontein. The commissioner was therefore obliged to invoke
the above principles relating to
circumstantial evidence in
determining whether the charge was proven. He however appears to have
come to the conclusion that the
charge was not proven without having
applied the above test. According to him no evidence was led to proof
theft. He was looking
for direct evidence. Such constitutes an
irregularity as he mishandled the rules relating to the evaluation of
circumstantial evidence
and thereby denying himself an opportunity to
properly evaluate evidence before him.
Made
mistakes by failing to determine whether or not the individual
Respondents were guilty of using company vehicles for personal
use
without authorisation.
[27]
It appears that the commissioner fixed his eyes on some of the
charges he was called to make a determination on and completely
ignored this charge. The commissioner is enjoined to determine all
material disputes that are properly before him. Reliance is
placed on
the matter of
Dairy
Bell (Pty) Ltd vs CCMA
[12]
in which the court held that “
where
there are several charges of misconduct, each ought to be separately
dealt with and the arbitrator’s analysis and conclusion
in
relation to each count ought to be clearly set out to meet the
required standard of justifiability
”.
Failure to do so constitutes a material irregularity. In respect to
this charge, the commissioner was called to make a
determination
whether or not the individual Third Respondents used company vehicles
for personal use without authorisation. He
did not make a
determination whatsoever. Even when one reads his award in conspectus
with the hope that such a determination might
be found hidden in the
litany of words used, none is found.
[28]
As indicted above, I find that the commissioner had offended more
than one of the established rules relating to the review
of awards.
The irregularities are material as they affect the outcome. The award
thus cannot stand.
Whether or not to
remit the matter
[29]
Mr. Goldberg invited me to decide this matter without remitting it to
the CCMA in the event I find that the commissioner committed
material
irregularities. Though I may be tempted to accept the invitation, it
is not advisable to do so. There is only one individual
Third
Respondent, Dlamini, who testified on his reasons for going to
Putfontein. The rest did not testify. It however appears that
the
commissioner imputed Dlamini’s reason of stopping at Putfontein
which was to buy food, to the rest of the individual
Third
Respondents. That was courageous. This on its own constitutes a
reviewable act. This together with other findings made above
make it
difficult for me to accept the said invitation.
[30]
I accept that the Applicant did not pray for the remission of the
matter to the CCMA. It prayed for further and/or alternative
relief.
It is within the realm of further and alternative relief that I find
the appropriate relief to be remitting the matter
to the CCMA to be
dealt afresh before another commissioner.
Costs
[31]
Spoils were shared. As indicated above, some of the grounds of review
were dismissed whereas others were sustained though my
finding is
that, in the whole, the errors were so material to warrant the
reviewing and the setting aside of the award. It is on
this basis
that I decide not to make an order of costs.
[32]
Accordingly, I make the following order:
Order
1.
The
arbitration award issued under case number GAEK 2640-15 dated 10
August 2015 is hereby reviewed and set aside.
2.
The matter
is remitted to the First Respondent for arbitration
de
novo
before any other commissioner than the Second Respondent.
3.
There is no
order as to costs.
___________________________________
Molebaloa
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate Craig Bosch
Instructed
by:
Thabang Ngobeni Attorneys.
For
the Third Respondent: A Goldberg of Goldberg Attorneys.
[1]
Act 66 of 1995
[2]
2008 (2) SA 24 (CC)
[3]
[2013] 11 BLLR 1074 (SCA)
[4]
[2014] 1 BLLR 20 (LAC)
[5]
[2015] 1 BLLR 50 (LAC)
[6]
[2015) 10 BLLR 1052 (LC)
[7]
Para 54 of the award.
[8]
Para 30 of the award.
[9]
Page 208. Llines 7-9
[10]
Page 208 lines 3-5
[11]
1939 AD 188
at 202-203
[12]
(J3020/98)
(1999) ZALC 85
(1 June
1999)