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[2017] ZALCJHB 476
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La Crushers v Commission for Conciliation, Mediation and Arbitration and Others (JR342/11) [2017] ZALCJHB 476 (18 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR342/ 11
Not
Reportable
In
the matter between:
LA
CRUSHERS
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
JOSIAS SELLO MAAKE
N.O.
Second Respondent
THOMAS
NORTON
MALEPE
Third Respondent
Heard:
1 June 2017
Delivered:
18 December 2017
JUDGMENT
WHITCHER,
J:
[1]
The
third respondent was dismissed after been found guilty of theft of
diesel from the applicant during the period 7 February 2008
to February 2009. At the time of his dismissal, the third
respondent was a manager.
[2]
The
second respondent found that the dismissal was substantively unfair,
and awarded the third respondent compensation equivalent
to six (6)
month’s remuneration.
[1]
[3]
The Commissioner reasoned that the case against
the third respondent was purely circumstantial with no direct
evidence from a witness
that had actually witnessed the theft. He
essentially accepted the third respondent’s defence. The
Commissioner was of the
view that the appropriate charge should have
been gross dishonesty or abuse of company property, and in the
absence thereof the
third respondent could not be found guilty of the
charge proffered against him.
[4]
The applicant submitted that the Commissioner
committed serious errors of law and fact. He failed to appreciate the
law on circumstantial
evidence and evidentiary burdens and applied
the incorrect standard proof. He further failed to appreciate that
disciplinary proceedings
are not criminal proceedings and a degree of
latitude is permissible in interpreting the ambit of disciplinary
charges.
[5]
The applicant submitted that had the Commissioner
correctly applied the above law, he would have found that,
irrespective of the
labelling of the charge, the third respondent had
been guilty of gross misconduct, which was dismissible. He would then
also have
found that, considering the third respondent had committed
the offence while he had occupied a position of trust, his dismissal
had been fair, notwithstanding his length of service.
[6]
In
Distell
Limited v CCMA & others
[2]
the Court reiterated the trite law that circumstantial evidence is an
appropriate and “powerful tool in proving the existence
of an
issue in dispute”.
[7]
In
Federal
Cold Storage Co Ltd v Angehrn & Piel
[3]
the court stated:
But
the burden of proving to be honest what admittedly on its face looked
dishonest rested upon the respondents themselves, not
upon the
appellants. Once the appellants had proved a prima facie case of
misconduct on the part of the respondents…, the
dismissal
stood prima facie justified, the burden of proof was shifted, and it
lay upon the respondents, as it does upon all agents
in a fiduciary
position who deal with their principals, to prove the righteousness
of the transaction. If they failed to discharge
that burden
satisfactorily, then the prima facie case against them must prevail
and their guilt, justifying dismissal must be taken
to be
established. With all respect to the learned Judges of the Supreme
Court, they seem to their lordships to have failed to
keep steadily
before their minds this shifting of the burden of proof, and to have
erred in consequence. They seem to have thought
that the respondents
were entitled to the benefit of any doubt, as to the convincing
nature of the explanation and justification
of their own action.
[4]
[8]
In
National
Battery (Pty) Ltd v Matshoba and Others
,
[5]
the court pointed out that the labels assigned to the misconduct are
irrelevant – the point is whether the evidence demonstrates
a
case of wrongdoing.
[9]
In
Woolworths
(Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
& others
[6]
the LAC stated:
“
[32]
Unlike in criminal proceedings where it is said that 'the description
of any statutory offence in the words of the law creating the
offence, or in similar words, shall be sufficient', the misconduct
charge on and for which the employee was arraigned and convicted at
the disciplinary enquiry did not necessarily have to be strictly
framed in accordance with the wording of the relevant acts of
misconduct as listed in the appellant's disciplinary codes, referred
to above. It was sufficient that the wording of the misconduct
alleged in the charge-sheet conformed, with sufficient clarity so
as
to be understood by the employee, to the substance and import of any
one or more of the listed offences. After all, it is to
be borne in
mind that misconduct charges in the workplace are generally drafted
by people who are not legally qualified and trained.
In this regard I
refer to the work of Le Roux & Van Niekerk where the learned
authors offer a suitable example, with which
I agree:
'Employers embarking on disciplinary
proceedings occasionally define the alleged misconduct incorrectly.
For example, an employee
is charged with theft and the evidence
either at the disciplinary enquiry or during the industrial court
proceedings, establishes
unauthorised possession of company property.
Here the rule appears to be that, provided a disciplinary rule has
been contravened,
that the employee knew that such conduct could be
the subject of disciplinary proceedings, and that he was not
significantly prejudiced
by the incorrect characterization,
discipline appropriate to the offence found to have been committed
may be imposed.'
[10]
Turning to the material facts in this
review, the applicant led the following undisputed evidence before
the Commissioner.
[11]
The
third respondent was a manager. As part of his duties, he was
allocated a vehicle to use as transport to and from his residence
and
as a working tool for stand-by purposes. He
lived
about 25 km from the workplace and sometimes needed to travel not
more than 20 km away from work. Other employees sometimes
used the
vehicle during working hours.
The
rule
was
that the vehicle had to be refuelled at the loop bay yard, not at the
refinery yard. This - because there were proper controls
in place and
an attendant on duty 24 hours at the loop bay. Any problem with the
pumps at the loop bay would not persist for more
than a day as they
serviced numerous vehicles.
[12]
An
investigation into excessive fuel usage conducted by the applicant
revealed that the refuelling of the vehicle was primarily
done at the
loop bay yard. In
the
period in question, fuel amounting to R1348.07 was filled at the loop
bay and R16 605.29 at the refinery.
[13]
The
records further revealed that on numerous occasions the vehicle had
been refuelled 3 times per day at the refinery yard before
working
hours, in the late afternoon and after working hours when the
attendant at the refinery yard was off duty.
[14]
On
average the refuelling would have required the vehicle to have been
driven at least 300 to 388km in the day, which was impossible
given
the nature of the third respondent’s job and the location of
his residence.
[15]
To
illustrate a few damning examples in the investigation report –
on 25
th
,
27
th
and 29
th
December the vehicle was refilled twice a day when vehicle was
clearly in the possession of the third respondent only.
[16]
Finally,
and most significantly, the records revealed that when the respondent
was on leave, the vehicle was not refuelled in one
day and no other
incidents of excessive usage were detected. The pattern of excessive
refuelling was absent when he did not have
the vehicle.
[17]
The
Commissioner failed to appreciate that through this evidence the
applicant had established a strong
prima
facie
case against the third respondent and that the evidentiary burden
thereupon shifted to the third respondent to provide a credible
explanation, which the third respondent failed to do. The
Commissioner failed to appreciate this as he was preoccupied with
finding
a missing link – a witness who would say that he had
seen the employee filing up the vehicle an inordinate amount of
times.
[18]
The
third respondent had to give an explanation for not adhering to the
refuelling procedure, for the inordinate amount of fuel
dispensed
into the vehicle, particularly outside of working hours when he would
have had the vehicle and the fact that when he
was on leave,
excessive refuelling ceased.
[19]
The
third respondent’s explanation was that the petrol nozzle at
the loop bay yard was sometimes broken. This was not a plausible
explanation given that he never reported same, the inordinate number
of times the vehicle was refilled at the refinery outside
of working
hours and the specific instruction not to use the refinery pump.
Moreover, this version was not put to the applicant’s
witnesses.
[20]
He
also claimed that sometimes employees would fetch the vehicle from
his home to use at work, but failed to identify even one of
these
employees. This version was also not out to the applicant’s
witnesses. In any event it did not explain the extraordinary
refilling of the vehicle outside of working times when it was clearly
only in his possession.
[21]
Simply,
the third respondent failed to provide a sufficient and plausible
explanation in response to the case laid out by the applicant,
and
therefore the prima facie case against him had to prevail. It is
incomprehensible how the Commissioner saw the third respondent’s
version as more convincing than the applicant’s case.
[22]
Irrespective
of the label attached to charge, the facts proved by the applicant
established gross dishonesty on the part of the
third respondent, the
nature of which was sufficient to destroy the element of trust
essential to his position as a manager and
an employment
relationship.
[23]
In
the premises, the applicant has established in this review that the
Commissioner made serious errors of law and fact which resulted
in an
unreasonable outcome.
Order
[24]
In the result, the following order is made:
1.
The arbitration award issued by the second
respondent is set aside on review.
2.
The award is substituted with an award that the
dismissal of the third respondent was substantively and procedurally
fair.
3.
There is no order as to costs.
________________________
Benita
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant:
Geldenhuys C J at Law Inc
For
the third respondent:
Nomali Tshabalala
Attorneys
[1]
Award
LP2272-09
dated 22 December 2010.
[2]
(2014) 35 ILJ 2176 (LC)
[3]
1910 TS 1347
[4]
At 1352
[5]
(2010) 5 BLLR 534 (LC)
[6]
(2011) 32 ILJ 2455 (LAC)