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[2017] ZALCJHB 433
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Power Plant Hire CC v Commissioner for Conciliation, Mediation and Arbitration and Others (JR95/16) [2017] ZALCJHB 433 (24 November 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: JR 95/16
In
the matter between:
POWER
PLANT HIRE CC
Applicant
and
THE
COMMISSIONER FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
SELO NANISO (
NO
)
Second Respondent
SAEWA
Third Respondent
DAVID KOMAKO
Fourth Respondent
Heard
:
21 November 2017
Delivered
:
24 November 2017
Summary:
(Review – unfair dismissal – highly selective assessment
of evidence leading to unsustainable
findings)
JUDGMENT
LAGRANGE
J
Background
[1]
The fourth respondent in this matter, Mr D Komako (‘Komako’)
was dismissed on 24 August 2015 after being found guilty
of a number
of charges relating to an incident in which the trailer on a front
end loader which he had been driving round a corner
crashed causing
damage to the wall and trailer. He had claimed an air brake failure
on the trailer had caused it to jack-knife
when he was turning the
corner. The employer believed the accident was caused by Komako
speeding.
[2]
Komako was charged with gross negligence, not following company
policies and procedures, damaged company property and gross
dishonesty. The arbitrator found that the applicant had not been
shown to have been driving the loader at an unsafe speed and
accordingly was not guilty of negligence. Further, although company
procedures required machines to be checked before they are used,
the
arbitrator found on the evidence that the loader was checked at the
beginning of the shift by a colleague of Komako, and that
checks on
machinery are normally conducted at the start of a shift.
Consequently, Komako could not be held responsible for not
checking
the loader again when he started using it later in the day. The
arbitrator concluded that Komako had caused damage to
the trailer and
a wall but concluded that this was an accident which could have
happened to anyone.
[3]
A further charge of dishonesty related to an allegation that Komako
had tampered with an air pipe (a so-called ‘Suzy pipe’)
serving the air brakes on the trailer in order to justify his
explanation that the air brakes on the trailer failed and caused
the
accident. In this regard, the arbitrator accepted that it had been
demonstrated that if the pipe was not properly connected
it could
become loose on its own. The arbitrator rejected polygraph evidence
supposedly confirming Komako had been dishonest in
his account of the
event. The arbitrator found his dismissal was substantively unfair
and ordered his reinstatement.
Grounds
of review:
[4]
The thrust of the applicant’s case against Komako was that, he
had been speeding and had disconnected the pipe coupling
after the
incident in order to disguise the true cause of the incident. The
applicant contends that in concluding that the machine
had been
checked by his colleague, thereby excusing Komako from checking the
machine, the arbitrator completely ignored the fact
that there was
undisputed evidence in a written statement of Komako that he had
checked the machine himself before he used it.
This evidence was
adduced in the arbitration and was not disputed by Komako. Further,
the contention that a machine was only checked
once in the morning at
the start of a shift and not by any operator before they started
using it was never put to the applicant’s
witnesses, yet the
arbitrator accepted this as standard procedure.
[5]
The applicant submits further that given that the accident occurred
shortly after Komako started using the machine, it is simply
untenable as a matter of logic that the accident arose shortly after
he had supposedly checked it, owing to a disconnected pipe.
In this
regard, it is noteworthy that Komako had told one of the employer’s
witnesses that when he had checked the machine
before using it on the
day in question, the pipe was connected. The arbitrator also failed
to consider the evidence that even if
the suzzy pipe was disconnected
there was still an air reserve tank that would have enabled the
trailer to brake. In addition,
he did not deal with undisputed
evidence that the trailer would not have been able to move if there
was insufficient air passing
from the front-end loader to the trailer
through the pipe because the trailers brakes would lock. ‘
[6]
The applicant contends that the arbitrator appeared to have
misconstrued the importance of the front-end loader having to idle
before pulling off so that enough air pressure could build up to
release the trailer breaks. He also ignored the evidence that
the
trailer was unloaded at the time of the accident and that workshop
tests after the accident found the brakes were working properly.
Critically, there was also undisputed evidence that the day after the
incident the vehicle was taken six times on the same route
with the
trailer. During these ‘re-runs’ it made no difference
whether the pipe was connected or not because the front-end
loader
and trailer still came to a halt using the brakes of the front-end
loader alone. The arbitrator failed to even consider
this critical
evidence.
[7]
Instead, the Commissioner’s reliance on the mere possibility
that the Suzy pipe may have become disconnected assumed unduly
exaggerated importance in his reasoning, to such an extent that he
ignored all the other evidence that tended to show that the
accident
as described by Komako would still not have occurred in the manner it
did even if the brakes had failed.
[8]
The applicant also contends that the arbitrator failed to explain why
he preferred the evidence of Komako over the corroborating
evidence
of a number of witnesses led by the applicant.
[9]
Having considered the evidence and the grounds of review, I am
satisfied that:
9.1 The
arbitrator was highly selective in the evidence he chose to regard
and disregard, to the extent
that no reasonable arbitrator could have
reached the findings he did on the evidence before him
9.2 The
arbitrator also discounted evidence of the employer’s witnesses
without a reasonable
justification for doing so and effectively
approached the case on the basis of a criminal standard of proof.
9.3 Had
the arbitrator not misdirected himself to this extent he would have
been compelled to conclude
that Komako’s version suffered from
serious inconsistencies and inherent improbabilities apart from being
simply irreconcilable
with other undisputed evidence such as the
results of the post-accident tests conducted on the front end loader
and trailer.
[10]
In consequence, his finding should be substituted with a finding that
the applicant was guilty of negligently causing the damage
to
property and was most probably dishonest about the air brake pipe
being disconnected. In the circumstances, his dismissal was
substantively fair.
[11]
The respondents did not oppose the application and merely attended
the court hearing.
Order
[1]
The arbitration award issued by the Second Respondent under the
auspices of the First Respondent
under case number GAJB 17841/15 is
reviewed and set aside to the extent that the Second Respondent found
the Fourth Respondent’s
dismissal was substantively unfair and
awarded him compensation.
[2]
The Second Respondent’s finding that the Fourth Respondent’s
dismissal was substantively
unfair is substituted with a finding that
his dismissal was substantively fair.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
W
Bekker Instructed by Nothnagel
Attorneys
RESPONDENT:
No
appearance.