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 397
|
|
Ratsibvumo and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR239/16) [2017] ZALCJHB 397 (27 October 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase
No: JR 239/16
In
the matter between:
RONALD
RATSIBVUMO
First Applicant
EDWARD
KAPA
Second Respondent
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION.
First Respondent
L
M TAYLOR
N O
Second Respondent
LA CONCORDE BAKERY (PTY) LTD
Third Respondent
Heard
:
25 October 2017
Delivered
:
27 October 2017
Summary:
(Review – misdirection – plea of guilty in disciplinary
enquiry not dispositive of need to
consider guilt in arbitration
proceedings – finding of guilt nonetheless justifiable on a
proper consideration of the evidence
– application dismissed)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This
is an application to review and set
aside an arbitration award.
[2]
The arbitrator found that she had two
central issues to determine. Firstly, did the applicants admit they
were guilty of the charge
of the unauthorized removal of property,
misusing the employer’s vehicle and bringing the employer into
disrepute? The charges
arose from the applicants allegedly removing a
geyser from the basement of the premises of a client of the employer
where they
had gone to deliver bread. It was alleged they had used
the employer’s delivery van to remove it. Secondly, was the
applicants’
dismissal substantively fair?
[3]
In summary, the arbitrator concluded that
the applicants were unable to refute the evidence of three witnesses
of the employer,
including the interpreter at the disciplinary
enquiry who confirmed that they had pleaded guilty to the charges in
the disciplinary
enquiry. It was common cause the employer had led no
evidence at the disciplinary enquiry. However , having found that the
applicant’s
had pleaded guilty at the disciplinary enquiry the
arbitrator held:
“
I have found
that the applicants pleaded guilty at the hearing and
as
such am not obliged to consider the respondents witnesses and
testimony in relation to the allegations and circumstances leading
to
the applicants dismissal even though such evidence was led
.
All I have ‘to now consider is whether dismissal was
appropriate under the circumstances…”
(emphasis
added)
[4]
The arbitrator held that the misconduct
which she found the applicants had pleaded guilty to at the
disciplinary enquiry was tantamount
to theft and that the fact that
they used their employer’s vehicle to remove the geyser
aggravated matters. The fact that
they previously had clean
disciplinary records outweighed the gravity of their misconduct and
their dismissal was substantively
fair.
The
review application
[5]
The applicants claim that arbitrator
committed a gross irregularity in deciding that he had to determine
whether or not they had
pleaded guilty at the disciplinary enquiry.
Instead, the arbitrator should have conducted an enquiry
de
novo
. The employer argued that the
arbitrator did in fact consider the evidence led in the arbitration
hearing pertaining to whether
or not the applicants were guilty of
the alleged misconduct, apart from considering whether or not they
had pleaded guilty in the
disciplinary enquiry. I agree with the
applicants that this is not what the arbitrator did. It is apparent
that although other
evidence was led which was relevant to the
determination of whether or not they were guilty of the misconduct,
the arbitrator clearly
decided that it was sufficient to make a
finding on whether or not they had pleaded guilty in the original
disciplinary enquiry.
The arbitrator clearly did not take on board
the fact that apart from disputing whether they had pleaded guilty,
the applicants
at the arbitration hearing now denied their guilt.
[6]
Clearly, if the applicants pleaded guilty
in the original disciplinary enquiry that is a significant factor in
evaluating the evidence
for and against their guilt in the
de
novo
hearing before the arbitrator. But
given the fact that they disputed such a plea and given that they now
disputed they were guilty
of the misconduct, the arbitrator was
obliged to make her own finding on the question of the guilt, taking
all the evidence into
account. Her failure to do so resulted in her
failing to determine a fundamental issue in the performance of her
functions, which
was not merely to determine if the applicants had
pleaded guilty in the disciplinary enquiry but whether in the light
of all the
evidence before they were probably guilty of the
misconduct. Her finding on how they pleaded in the disciplinary
enquiry could
not logically be dispositive of this question.
[7]
However
a misdirection does not automatically result in a successful review.
If the final result might still have been obtained
on the evidence
before the arbitrator, without the misdirection, there is no need to
set the award aside. The most recent iteration
of the review
principle by the LAC in
SA
Breweries (Pty) Ltd v Hansen & others
[1]
put it thus:
“
[10] The
test that the Labour Court is required to apply in a review of an
arbitrator’s award was settled by the Constitutional
Court in
Sidumo & another v Rustenburg Platinum Mines Ltd & others
(Sidumo). It is that an arbitration award is reviewable
if the
decision reached by the arbitrator was one that a reasonable decision
maker could not reach. Essentially, this test requires
the Labour
Court, sitting as a court of review, to enquire whether the decision
under review is one that a reasonable decision
maker could not reach
on the evidential material available. On this test, an arbitration
award based on defective reasoning by
an arbitrator may still pass
the muster required A in reviews, provided that the result is one
that a reasonable decision maker
could have reached. This was
clarified by the Supreme Court of Appeal in Herholdt v Nedbank Ltd
(Congress of SA Trade Unions as
Amicus Curiae) as follows:
‘
For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s 145(2)(a)(ii) … the
arbitrator must have misconceived the nature of the enquiry 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 the
material that was before the arbitrator. Material errors of
fact, are
not in and of themselves sufficient for an award to be set aside, but
are only of any C consequence if their effect is
to render the
outcome unreasonable.’
[11] In Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation & Arbitration & others
(Gold Fields), this court
refined the Sidumo test by introducing a two-stage enquiry. In short,
this requires the Labour Court
to consider two issues: The first is
whether the applicant has established an irregularity. This
irregularity could be a material
error of fact or law, the failure to
apply one’s mind to relevant evidence, or misconceiving of the
enquiry or assessing
factual disputes in an arbitrary fashion. The
second is whether the applicant has established that the irregularity
is material
to the outcome
by
demonstrating that the outcome would have been different having
regard to the evidence before the arbitrator
.
An arbitration award will, therefore, be considered to be reasonable
when there is a material connection between the evidence
and the
result.”
[2]
(emphasis added - footnotes omitted)
Evaluation
[8]
The parties agreed that if the award should
be set aside on account of the misdirection mentioned, that the court
should substitute
the arbitration award based on the available record
and not remit the matter back to be heard
de
novo
by another arbitrator. For the
reasons below that turns out to be unnecessary.
[9]
During the course of the arbitration, the
employer had attempted to introduce video footage supposedly showing
the loading of the
geyser at the client’s premises into its van
but initial attempts to replay the video footage were unsuccessful.
Although
the arbitrator believed the video footage would be vital,
when the arbitration hearing resumed the employer advised that having
viewed the video footage again, it was of the view that the
applicants could not be clearly identified from the footage. Instead,
the employer led the evidence of a security officer who said he had
been present when the applicants returned to the client’s
premises to return the geyser and who had also called the police.
[10]
The employer had previously led evidence of
Mr Misibeni, a manager to the effect that he had been phoned by a
security official
of the client to say that the applicants had
removed a geyser from its premises in the firm’s vehicle and he
had phoned the
first applicant and instructed them to return the
geyser. He also testified that he received another call from the
client asking
the firm to collect its vehicle because the applicants
had been arrested by police for removing the geyser from the client’s
premises without permission. The applicant’s representative
never disputed this evidence. It was only in their own evidence
in
chief that the applicants denied receiving a call to return to the
client and return the geyser.
[11]
The security officer who testified was not
materially shaken on his core testimony that he saw the applicant’s
unloading the
geyser on their return to the client’s premises
and that he called the police to the premises. His version was
consistent
with Mr Misibeni’s evidence summarized above. There
was no dispute that the applicants were arrested by police who had
been
summoned by the client. The applicants’ version was that
they were simply returning to the client’s premises to collect
crates they had used to make the earlier delivery. They also claim
that the police never saw any geyser when they arrived at the
premises. Little of this version was put to the employer’s
witnesses. In effect, the applicants’ version was that the
entire story about them removing a geyser and returning it was simply
a fabricated tale made up by the employer and the client.
No
plausible explanation was offered why such an elaborate story would
have been made up to implicate them.
[12]
It was also pointed out that they
dishonestly claimed not to have got proper notice of the disciplinary
hearing. On the question
of whether they had pleaded guilty in the
original disciplinary enquiry, I cannot criticise the arbitrator’s
finding on that
issue. Even if this was an appeal, I am satisfied
that the evidence of the employer’s three witnesses on a
balance of probabilities
was more plausible than the applicants’
claim that they never pleaded guilty at the disciplinary enquiry,
especially when
it is taken into account that the employer did not
see the need to lead any evidence on the charges at the disciplinary
enquiry.
[13]
On the merits of whether or not the
applicants were guilty of the misconduct, the employer’s
version of events based on its
witnesses was internally coherent,
corroborative and plausible. By contrast, the applicants’
version that they were just
going about their normal business and
police had been called on account of the removal of an imaginary
geyser is inherently implausible.
It was suggested in argument that
if they had taken the geyser without authority they would not have
returned it to the client.
However, such conduct must also be
considered in the light of their plea of guilty at the disciplinary
enquiry. It is not implausible
to think that there could be another
explanation for returning the geyser, namely to avoid a charge of
theft once their action
had been discovered.
[14]
One of the applicant’s alternative
grounds of review was that the arbitrator failed to take account of
the employer’s
ultimate failure to present the video evidence
which supposedly showed the geyser being loaded into the van. Since
the arbitrator
had seen this as crucial during the arbitration, it
was argued that the failure to adduce that evidence necessarily meant
the case
was weak. However, the arbitrator’s comment on the
crucial nature of the video evidence was made before the eyewitness
testimony
of the security officer was led. His evidence concerned the
offloading of the geyser by the applicants after he had phoned their
employer and after they had been instructed to return the geyser. In
the absence of the applicant’s being able to offer a
plausible
innocent explanation why two bakery delivery staff would have a
client’s geyser in their employer’s
van, it is
entirely reasonable to conclude that it was because they had intended
to take it. They offered no explanation, but instead
had to settle
for simply denying that they were in any way involved in handling the
geyser and even went so far as to claim that
the police never
saw it when they came to arrest them, version which was not put the
security officer. Having led the
security officer’s
eyewitness testimony it was not incumbent on the employer to also
lead the evidence of the video footage,
particularly if it claimed
the applicants could not be clearly identified in that footage.
[15]
It is trite law that a party not required
to be the best evidence available and if it chooses to lead
eyewitness testimony instead
of video footage, if that eyewitness
testimony is sufficient as direct evidence of the incident, the
failure to other evidence
to corroborate the eyewitness testimony is
neither here nor there, and the arbitrator was entitled to draw
conclusions based on
that evidence notwithstanding the fact that
other evidence might have been available but was not introduced.
[16]
On the issue of credibility, it not a case
which in my view requires credibility findings to be made, since it
can be decided on
the inherent relative plausibility of the two
competing versions. However, if credibility is considered it is the
applicants who
have the problem. Given that the finding is sound that
they admitted guilt in the enquiry, they were not consistent in this
regard
when it came to the arbitration. Secondly, they were shown to
have lied about being notified of the disciplinary enquiry. Similar
credibility issues do not arise with the employer’s witnesses.
[17]
Having regard to the evidence, I am
satisfied that it is more likely the applicant’s returned to
the client’s premises
and unloaded the geyser they had removed.
It is self-evident that their conduct would reflect poorly on the
company they worked
for in the eyes of the client. Accordingly, I am
satisfied the charges against them were proven and I agree with the
arbitrator
that the seriousness of the misconduct which was
tantamount to theft justified their dismissal notwithstanding the
mitigating factors
he mentioned. Thus the ultimate conclusions of the
arbitrator that the applicants were guilty and that their misconduct
warranted
dismissal must still stand, even though the arbitrator had
decided they were guilty on the basis of a serious misdirection about
the effect of them pleading guilty at the disciplinary enquiry.
Costs
[18]
Strictly speaking, the applicants were successful
in their claim that the arbitrator misdirected herself and
accordingly her finding
of guilt was arrived at by means of a
material misdirection. On the other hand the same ultimate findings
are justifiable on the
evidence before her after correcting the
skewed approach to the evidence resulting from her misdirection.
Accordingly, the applicants
were ultimately unsuccessful. Given that
their main point on review was substantially correct but not enough
to warrant the award
being overturned, it is more appropriate that
the parties bear their own costs.
Order
[19]
The review application is dismissed.
[20]
No order is made as to costs
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
B
Khanyile of Bongani
Khanyile
Attorneys
THIRD RESPONDENT:
M E
Duvenhage of
Duvenhage Attorneys
[1]
(2017) 38 ILJ 1766 (LAC)
[2]
At 1771-2