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[2017] ZALCJHB 454
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Hestony Transport (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (JR1083/11B) [2017] ZALCJHB 454 (30 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Case
Number: JR1083/11B
In
the matter between:
HESTONY
TRANSPORT (PTY) LTD
Applicant
and
NATIONAL BARGAINING
COUNCIL FOR THE
ROAD FREIGHT
INDUSTRY
First Respondent
COMMISSIONER PM VENTER
N.O
Second
Respondent
DAVID
BETHANI MATOBAKO
Third
Respondent
Heard:
11 July 2017
Delivered:
30 November 2017
Summary:
Application of review test to review application, based on award
finding that dismissal for misconduct was unfair. No grounds
for
review established, particularly as review grounds not adequately
pleaded. Matter dismissed.
JUDGMENT
FOURIE
.
AJ
[1]
This
is an opposed review application in which the applicant, Hestony
Transport (the employer) seeks to challenge an arbitration
award in
which the dismissal of the third respondent (the employee) was held
to be unfair, and reinstatement was ordered.
[2]
The
matter has been delayed by many years. It also appears that the
original papers went missing and had to be reconstructed. It
does
appear that the original founding affidavit in the review proceedings
is dated 25 October 2011, some five weeks after receipt
of the
arbitration award. According to the founding affidavit in an
application to dismiss the review on grounds of delay, the
review
application was launched on this date. I am therefore satisfied that
the review application was brought within the six-week
statutory
timeframe, and that the Court has jurisdiction to entertain the
application.
[3]
The
lengthy delays that have occurred since the review application was
instituted, are unfortunate, and there does appear to have
been
significant delay on the part of the applicant in prosecuting the
review application. Nonetheless, in my view it would be
in the
interests of justice to consider and determine the review application
on its merits, and to consider the issue of delay
in prosecuting the
review application when determining costs.
[4]
In
brief, the facts are as follows. The employee was employed as a long
distance truck driver. He was due to report at one of the
employer’s
depots, but when he did not arrive, the operations manager (Nel)
located the vehicle using tracking technology,
and found that it was
parked next to a tavern. He drove to the tavern with a substitute
driver, and found the employee asleep in
the cab. He noticed that the
employee smelt of alcohol, and instructed that he accompany him back
to the depot, where he was subjected
to two breathalyser tests, both
of which indicated that the employee was over the statutory
blood/alcohol driving limit. This led
to a disciplinary inquiry which
resulted in the employee’s dismissal.
[5]
At
arbitration, the version summarised above was presented, but the
evidence of Nel was not presented. He had since left the company,
and
was only available to present evidence by telephone. The arbitrator
refused an application to allow this, on grounds listed
in the award.
I deal with this issue separately.
[6]
The
employee’s version of events, both at the internal hearing and
at arbitration, was briefly as follows: He consumed cough
medicine
while driving, as he was sick. He stopped at the tavern on his way
back to the depot to watch a football game as there
was no tv at the
depot. He did not drink anything as he was feeling ill. After the
game he fell asleep in the cab of the vehicle,
where he was woken up
by the operations manager. The positive breathalyser tests must have
resulted from the cough mixture, which
he did not realise contained
alcohol.
[7]
The
arbitrator noted that while it was suspicious that the employee had
deviated from his set route (to go to the tavern), he was
not charged
with misconduct other than being intoxicated while on duty. The
arbitrator also noted that the employee was only subjected
to a
breathalyser test three hours after his shift ended. The arbitrator
took note of the evidence of the employee’s supervisor,
to the
effect that the trust relationship had not broken down, and concluded
that the employer had failed to prove the misconduct
complained of.
He ordered that the employee be reinstated.
[8]
On
review, the applicant adopted somewhat of a shotgun approach to
pleading the basis on which the award should be set aside. Besides
noting that the arbitrator declined to allow Nel’s evidence to
be presented by telephone, no attack is made on this critical
finding. It is trite that review grounds must be properly pleaded in
the founding affidavits, before they can be relied upon as
a basis on
which to attack the award. An exception to this rule is probably
where a material error of law (such as lack of jurisdiction)
is
apparent from the award. Then the court may
meru
motu
take this into consideration and may overturn the award on this
basis.
[9]
An
arbitrator has a fairly broad discretion in determining the manner in
which the arbitration proceedings will be conducted. The
exercise of
a discretion, such as the decision to disallow hearsay evidence, is
subject to challenge on review, but a proper case
must be pleaded in
order to challenge the exercise of a discretion. That challenge is
notably absent from the founding affidavit.
[10]
While
there is much to be said in favour of a more permissive approach to
the inclusion of evidence in what is supposed to be an
informal
inquiry, the carefully reasoned decision by the arbitrator to
disallow the telephonic evidence of Nel is not susceptible
to review
on the basis of a gross error of law of which the court could
meru
motu
take notice of.
[11]
The
decision to disallow Mr Nel’s telephonic evidence, coupled with
the failure of the applicant’s representative to
apply for a
postponement to obtain a subpoena for Mr Nel, is probably fatal to
the applicant’s case. It rendered much of
the hearsay evidence
of Mr Smith, which was provisionally allowed, subject to confirmation
by way of direct evidence, as being
of little probative value.
[12]
The
result is that the employee’s version, as improbable as it may
sound to a cynical observer, constituted the only direct
evidence of
the events of the evening in question. It is not so far-fetched that
it can safely be rejected out of hand. The employee
had been employed
for seven years, with no prior disciplinary infractions. The
deviation from the authorised route, particularly
while driving a
loaded truck, is hardly trivial, but the employee was not charged
with misconduct in this regard.
[13]
For
these reasons, I find that the arbitration award is one that could
reasonably have been reached on the evidence before the arbitrator.
[14]
The
employer seems to have taken an inordinately long time to prosecute
this review application. The employee, who had limited legal
resources, brought an application to have the arbitration award made
an order of court during 2014. In 2015, the employee brought
an
application to dismiss the review for want of proper prosecution. It
seems that neither of these applications were argued, and
given the
approach I have adopted, it is not necessary to make rulings on the
merits of these interlocutory applications, but I
do think that the
employer should be ordered to pay the costs thereof, as it appears to
have been the primary cause of the delay
in prosecuting the review
application.
[15]
In
the circumstances, I make the following order:
Order:
1.
The
review application is dismissed.
2.
The
arbitration award under review is made an Order of Court.
3.
The applicant is ordered to pay the third respondent’s costs,
including the costs in the interlocutory applications in this
matter.
______________________
Greg
Fourie
Acting
Judge of the Labour Court
Appearances:
For
the Applicant: Mr R Orton – Snyman Attorneys
For
the Third Respondent: Advocate S Mushay