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[2017] ZALCJHB 453
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Lekoba v Smollan Cape (Pty) Ltd and Others (JR2512/13) [2017] ZALCJHB 453 (5 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR2512/13
In
the matter between:
LESEGO SAMUEL LEKOBA
First Applicant
and
SMOLLAN CAPE (PTY) LTD
First Respondent
LAWRENCE NOWSENETZ
N.O
Second Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
Third Respondent
Heard:
11 August 2016
Delivered:
5 December 2017
JUDGMENT
TLHOTLHALEMAJE,
J.
Introduction
and background:
[1] The
applicant, Mr Lesogo Samuel Lekoba (Lekoba), seeks an order reviewing
and setting aside the arbitration award issued by
the Second
Respondent, Commissioner Lawrence Nowsenetz (Commissioner) on
25 October 2013 wherein it was found that his
dismissal by
the first respondent (Smollan) was substantively fair. Smollan Cape
(Pty) Ltd (Smollan) opposed the application.
[2]
Lekoba was employed by Smollan as a Field Manager from 27 July 2011
until his dismissal on 26 July 2013
on the grounds of
alleged misconduct relating to gross negligence and abuse of a
company vehicle. He is alleged to have during
26 and 27 June 2013,
driven a company vehicle at excessive speeds of up to 202 km/h in
contravention of Smollan’s
Fleet Management Policy.
The
arbitration proceedings:
[3] The
dispute having been referred to the Commission for Conciliation
Mediation and Arbitration (CCMA) for arbitration after conciliation
had failed, it came before the Commissioner for arbitration at which
two witnesses testified on behalf of Smollan, whilst Lekoba
and his
wife testified on his behalf. Lekoba from the onset at the
arbitration proceedings disputed the accuracy of the tracking
system
which was used as evidence in proving that he had travelled at
excessive speed on the days in question. He went further
and alleged
that the system and the data or reports generated were manipulated.
In substantiation of his claims, Lekoba pointed
to the discrepancies
between the odometer reading in the vehicle at the time of the
alleged incident and the actual readings as
recorded and reflected in
the GPS report from the tracking device in the vehicle.
[4]
Lekoba further alleged that the charges against him were trumped up
and a plot by Smollan, as it sought to get “rid”
of him.
To support his conspiracy theory, Lekoba further points that in the
past, he was dismissed and had referred a dispute to
the CCMA which
had resulted in his reinstatement. According to him, Smollan was
displeased with these turn of events, hence the
trumped up charges
against him.
[5]
Henning Pretorius, the Smollen’s Regional Manager and Lekoba’s
direct supervisor’s testimony was that the
latter as a Field
Manager had 24 people reporting to him, who were involved in
merchandising and other activities at various
stores. As part
of Lekoba’s responsibilities including promotions, and
supervising merchandising etc., he was required to
drive from store
to store and was also allowed personal use of the company vehicle.
[6]
Pretorius further testified that the company vehicles are fitted with
tracking devices managed by Autotrack, which is
contracted to
monitor Smollen’s fleet of vehicles. The device generates
reports/data of driving patterns of drivers including
crashes and
extreme driving. A ‘crash’ alert was received relating to
a vehicle driven by Lekoba, which indicated the
vehicle was
travelling at high speed. The report also indicated that on
26 June 2013, Lekoba drove a company vehicle
at speeds
between 118 and 120 in an 80km/h zone. On 27 June 2013 at
about 02h19, the vehicle was recorded as having been
driven at speeds
of between 195km/h on a 60km/h road at about 02h19, triggering an
alert on the device.
[7]
Pretorius had asked Lekoba to explain himself in the light of
Autotrack report, and his initial response was that he was in
a
hurry. He was asked to write a statement to elaborate on his
explanation, and in his written statement, he merely stated that
he
drove the vehicle responsibly. As his version of events was not
satisfactory, this had led to a disciplinary process being
instituted. Pretorius denied that Lekoba was at any stage victimised,
and contended that a broken trust relationship led to the
dismissal.
He further denied that the Autotrack reports or the tracker devices
could have been manipulated. According to Pretorius,
Lekoba was well
aware of the company policy pertaining to the use of its vehicle,
having been trained and briefed in weekly meetings
in that regard.
[8]
Smollan had also called upon Ms. Candice Grant-Olivier, Autotrack’s
General Manager for Operations to testify on its behalf
in respect of
how the devices in motor vehicles operated. Her evidence was that the
tracking system was accredited by various institutions
and is not
linked to the physical odometer in the vehicle. She further testified
that the devices’ technology was 100% reliable
and that it was
absolutely impossible for anyone to manipulate the data generated.
The devices are GPS based, and are further insurance
approved. A
‘crash alert’ is any disturbance to the unit at any speed
of over 40km/h, which could be created by
inter alia
, going
over speed humps, hitting a pothole too fast, going off tar onto
gravel road etc. If a crash alert is received, the customer
response
sensor would analyse the trip and if the vehicle stops directly
thereafter, it would indicate an accident, and the customer
would
then be informed.
[9]
According to the report generated for 26 June 2013, the
vehicle in question was driven at a top speed of 202km/h.
Grant-Olivier under extensive cross-examination by Lekoba also
explained how the system worked, how data and speed was recorded,
and
how the devices operated separately from odometers in the vehicle.
She testified that the odometer was not relevant for the
purposes of
speed reading, as the information on the device was generated from
the satellite GPS. She explained the discrepancies
between the
odometer readings in the report and the vehicle itself to the fact
that the odometer reading was a value that was inputted
into the
system when the device was installed, and it had nothing to do with
the GPS reading of the speed travelled. She reiterated
that it was
impossible to manipulate the system or the reports.
[10]
Lekoba in his testimony repeated that he was victimised for asserting
his rights against Smollan at the CCMA by referring disputes.
He
disputed the tracker readings based on the discrepancies with actual
odometer readings in the vehicle, and contended that the
reports were
manipulated. He denied having reached speeds of up to 202km/h, and
contended that he had driven the vehicle responsibly
throughout. This
was even so as he was travelling with his wife who would not have
allowed him to drive recklessly.
[11]
Under cross-examination, Lekoba conceded that despite being afforded
the opportunity, he had refused to present mitigating
factors at the
internal disciplinary enquiry. His contention was that he did not see
the need to do so for something he did not
do. He nonetheless
conceded that anyone found driving a company vehicle at excessive
speeds must be dismissed.
[12]
Lekoba’s witness and wife, Judy Lekoba testified that on 26 or
27 July 2013 they had travelled at night at
about 23h00
from Pretoria towards Lehlabile in Brits. They slept over and
travelled back at about 02h00. She denied that her husband
drove over
the speed limit. She was referred to the tracker report, and when it
was pointed out to her that there were discrepancies
between her
version and the report in regards to the times and the places the
vehicle had travelled, her response was that the
report was faulty.
The
award:
[13]
Having summarised the evidence, the Commissioner concluded that;
“
The
Respondent has proven that the Applicant is guilty as charged. The
Code of Good Practice: Dismissal in Schedule 8 of the
Labour
Relations Act,
1995
(the code) provides that dismissal for a first offence is appropriate
in cases of serious and/ or repeated misconduct. No mitigation
factors are present. The Applicant has been untruthful and shown no
remorse. He has broken the relation of trust with the company
by his
irresponsible and dangerous driving conduct. The rule is reasonable
and clear. Whether he was driving for private purposes
or not is
immaterial. The dismissal was appropriate and was substantively
fair.”
[1]
The
grounds of review:
[14]
Lekoba seeks that the award be reviewed and set aside on a variety of
grounds, which are captured in paragraph 12 of his founding
affidavit
as follows;
‘
It
is further submitted that the Second Respondent committed misconduct
in relation to the duties of a Commissioner, alternatively,
or
committed gross irregularity in the conduct and outcome of the
ruling, alternatively exceeded his powers, alternatively, committed
another act which constitute a ground permissible in law for the
review and setting aside of that act, alternatively failed to
apply
his mind to the relevant issues in in accordance with the provisions
of the Act and tenets of natural justice, alternatively
committed a
material error of law and interpretation, in terms of section 145
and/or section 158 and the Constitution, Act 108
of 1996,
alternatively that there was no rational connection between the
evidence before the Second Respondent and the findings
made rendering
the ruling grossly unreasonable decision maker could have reached
such decisions’ (Sic)
[15]
Lekoba persisted with his contentions that the Commissioner failed to
take into account that the data relied upon by Smollan
was
manipulated, and sought to further rely on a document purportedly
indicating that he was not the driver of the vehicle in question
at
the time of the incident. Common sense nonetheless prevailed at these
review proceedings when it was conceded on his behalf
that this
document, (Annexure “LSL2” to the founding affidavit) was
not presented at the arbitration proceedings, and
could thus not be
relied upon in these proceedings.
[16]
Lekoba further challenged the Commissioner’s award on the basis
that he had relied solely on the accuracy of the information
furnished by Autotrack and the tracking report without any further
corroborating evidence. He further complained that the Commissioner
failed to take into account his assertions that he was subjected to
victimisation in view of previous disputes he had referred
to the
CCMA.
[17]
Lekoba further took issue with the Commissioner’s reliance on
the tracker report in coming to his conclusions.
He nonetheless
contended that the Commissioner should have taken into account that
he did not receive any traffic fines for the
alleged transgressions.
[18]
Smollan’s contentions were that there was no basis laid out in
the founding affidavit for the award to be reviewed and
set aside,
nor was there anything pointed out in the transcribed record of
proceedings that the award was susceptible to a review.
It was
submitted that the Commissioner’s award was well-reasoned and
the findings therein rationally followed from the evidence.
The
test on review and evaluation:
[19]
The applicable test in review
proceedings brought in terms of section 145 of the LRA is well
established. The test is whether the
decision reached by the
commissioner is one that a reasonable decision-maker could not have
reached in relation to the material
placed before him or her
[2]
.
It has also been held that provided that the arbitrator gave the
parties a full opportunity to state their respective cases at
the
hearing, identified the issue that he or she was required to
arbitrate, understood the nature of the dispute and dealt with
its
substantive merits, the function of the reviewing court is limited to
a determination whether the arbitrator’s decision
is one that
could not be reached by a reasonable decision-maker on the available
material
[3]
.
[20]
Section 188 (2) of the LRA requires any person considering whether or
not the reason for dismissal is a fair reason or whether
or not the
dismissal was effected in accordance with a fair procedures to take
into account any relevant code of good practice
in terms of the LRA.
In this regard, Item 7 of Schedule 8 – Code of Good Practice:
Dismissal provides that;
‘
Guidelines
in cases of dismissal for misconduct’: ‘Any person who is
determining whether a dismissal for misconduct
is unfair should
consider –
(a)
whether or not the employee contravened a rule or
standard regulating conduct in, or of relevance to, the workplace;
and
(b)
if a
rule or standard was contravened, whether or not –
(i)
the rule was a valid or reasonable rule or standard;
(ii)
the employee was
aware, or could reasonably be expected to have been aware,
of the
rule or standard;
(iii)
the rule or standard has been consistently applied by the employer;
and
(iv)
dismissal was an
appropriate sanction for the contravention of the rule or standard.’
[21] In
this case, and having trawled through the transcribed record of
proceedings and the award itself, I am satisfied that the
Commissioner afforded the parties a full opportunity to state their
respective cases at the hearing, correctly identified the issues
that
he was required to arbitrate, understood the nature of the dispute he
was required to determine, and dealt with the substantive
merits of
the case or dispute before him.
[22] As
further apparent from the Commissioner’s award at its paragraph
14, he took into account the factors to be considered
under Item 7 of
Schedule 8 of the Code of Good Practice in coming to a conclusion
that the dismissal was fair. The issue with most
dismissal cases as
required in terms of section 188 (1) (a) of the LRA, is a
determination of whether the employer has demonstrated
that the
reason for a dismissal was fair. In this case, Lekoba was dismissed
for gross abuse of company vehicle by driving it at
excessive speeds
of up to 202 km/h, and gross negligence by committing the said act.
On his version, he conceded that an employer
was entitled to
discipline and dismiss an employee in such circumstances.
[23] The
Commissioner’s obligation therefore was to have regard to the
evidence placed before him, which was the tracker records
as
presented and explained by Grant-Olivier, an expert in such matters.
Evidence presented indicated that between 26 and 27 June 2013,
Lekoba had in the evening and morning of the said dates, travelled
between Pretoria/Atteridgeville and Brits at such speeds. Lekoba’s
responses to the allegation was that the tracker reports and the data
was manipulated to his disadvantage.
[24]
Grant-Olivier however on behalf of Smollan and under sustained
cross-examination had consistently refuted any allegation that
the
reports or data was susceptible to manipulation. She had conceded
that there may be discrepancies between the odometer readings
as
reflected in the vehicle, and the vehicle odometer reading as
reflected in the report. This however according to Grant-Olivier
had
no bearing, and she had explained how ultimately it was the report as
generated from the GPS satellite that gave a true reflection
of the
speeds driven. In the end, other than these discrepancies, there was
no reason to doubt the veracity or authenticity of
the data and the
reports generated from the devices installed in the vehicles. Lekoba
without similar expert evidence could not
genuinely refute that the
reports and data were indeed correct.
[25] The
Commissioner in the absence of any credible evidence to support
Lekoba’s version that the data or reports were manipulated
was
bound to accept Smollan’s version as presented by Grant-Olivier
as probable, and to reject Lekoba’s unsubstantiated
version
that the reports or data had been manipulated. There was nothing
placed before the Commissioner other than the data and
the reports
from which to make a finding that indeed Lekoba had been speeding.
His denials coupled with those of his wife did not
take his case any
further, particularly since the high-watermark of their case was that
the data and reports were either faulty
or manipulated. Lekoba’s
half-hearted contention that in the absence of traffic fines in
regard to the incident there was
no basis to charge him. This
argument is nonetheless unsustainable in that the mere fact that a
speedster was not caught at the
time of the transgression does not
imply that he was not at any stage speeding.
[26]
Lekoba had similarly attributed his dismissal to a conspiracy theory
that Smollan always wanted to get rid of him because he
had exercised
his rights to take disputes against it to the CCMA. Again, Lekoba’s
cross-examination in that regard revealed
that indeed after his
reinstatement by the CCMA following an earlier dispute, he was placed
back into his original position. He
nonetheless complained about
deductions to his salary without his knowledge. This issue cannot be
indicative of any victimisation.
He was clearly aware that any
alleged deductions to his salary was in contravention of the
provisions of section 34 of the Basic
Conditions of Employment Act,
and nothing prevented him from pursuing any dispute in that regard
with the Department of Labour.
The deduction of his salary does not
have anything to do with the allegations that he had committed gross
misconduct, which in
terms of the company’s disciplinary code
and procedure was dismissible, even for the first offence.
[27] In
circumstances where it was not in dispute that Lekoba was fully aware
of Smollan’s Vehicle Policies, which required
employees to
ensure that they drove company vehicles responsibly and carefully by
abiding by all the country and district traffic
laws, and further on
the basis of his acknowledgement that Smollan was entitled to
discipline and dismiss employees where they
did not adhere to these
policies, I fail to appreciate how it can be said that the
Commissioner’s findings do not fall within
a band of
reasonableness.
[28] A
significant factor which the Commissioner further took into account
is that Lekoba had been untruthful and had shown no remorse.
Lekoba’s
stance from the disciplinary enquiry, as further demonstrated during
his cross-examination in the arbitration proceedings,
was that he did
not see any reason to show any remorse or plead in mitigation as he
had not done anything wrong. In my view, and
further in the light of
Lekoba’s persistent refusal to acknowledge any wrong-doing on
his part, the Commissioner’s
conclusions that he had broken a
trust relationship with the company through his irresponsible and
dangerous driving cannot also
be faulted.
[29] To
conclude then, Lekoba’s founding affidavit and the grounds of
review as set out therein do not sustain a conclusion
that the
outcome arrived at by the Commissioner is one that a reasonable
Commissioner could not have come to in the light of the
material
before him. The Commissioner’s award is accordingly found to be
unassailable, and it follows that the review application
ought to be
dismissed. I have further had to the requirements of law and
fairness, and I am of the view that a cost order is not
warranted in
this case.
Order:
[30] In
the premise, the following order is made:
1.
The application to review and set aside the arbitration award
issued
by the Second Respondent dated 25 October 2013 is dismissed.
2.
There is no order as to costs.
__________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Mr J. Galananzhele of J Galananzhele Inc
For
the First Respondent:
Ms S. Lancaster of Crafford Attorneys
[1]
Paragraph
14 of the award
[2]
Sidumo and another v
Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC
)
at
para
[110]
[3]
See
Goldfields Mining South
Africa (Pty) Ltd v CCMA (2014) 35 ILJ 943 (LAC)
at para [20], and also at para 16, where it was held that;
“
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him/her, evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decision he or she arrived at”
See
also
South African Medical Association obo Mabuza and Others v
Commissioner Moletsane and Others (JR834/12) [2014] ZALCJHB 66 (14
March
2014)
at para [8]