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[2017] ZALCPE 31
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National Union of Metalworkers of SA and Another v Commission for Conciliation, Mediation and Arbitration and Others (PR06/16) [2017] ZALCPE 31; [2018] 3 BLLR 290 (LC) (3 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PR06/16
In the
matter between
:
NATIONAL
UNION OF METALWORKERS OF SA
First Applicant
LUXABISO
SOZWE
Second Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
GERALDINE
MASUNUNGERE
N.O.
Second Respondent
TRANSNET
RAIL ENGINEERING SOC Third
Respondent
Heard:
13 September 2017
Delivered:
3 November 2017
Summary:
Substantive fairness –
charge of misuse of company vehicle - dishonesty improperly thrown in
order to justify a sanction of
dismissal –
progressive
approach in enforcement of disciplined is inherent in the company
Policy – dismissal unfair.
JUDGMENT
NKUTHA-
NKONTWANA J
Introduction
[1]
This is an application in terms of s145 of the
Labour Relations Act
[1]
(the LRA) for an order reviewing and setting aside the award issued
on 10 December 2015 by the second respondent (the commissioner),
acting under the auspices of the first respondent (the CCMA). The
basis of the challenge is that the award that found the dismissal
of
the second applicant (Mr Sozwe) substantively and procedurally fair
was unreasonable. The Third Respondent (Transnet) is defending
the
arbitration award.
[2]
Mr Sozwe was dismissed on 28 October 2014 after
being found guilty of dishonesty arising from the alleged misuse of a
company vehicle
on four occasions between 28 March 2014 (the award
incorrectly reflects 25 March 2014) and 11 April 2014. He was charged
as follows:
1.
Gross misconduct: Dishonesty and or misuse of
Company Vehicle in that on 28 March 2014 you misused the company
vehicle for purposes
not related to work in that, you went to SAPS in
Mount Road Port Elizabeth which had nothing to do with work.
2.
That on 31 March 2014, you misused the company
vehicle under the pretence that you are visiting a family of a
deceased employee
in Motherwell and instead travelled to various
destinations not in line with your initial purpose, thereby abusing
the company
vehicle.
3.
That on 2 April at approximately 10:30 until
12:30 you misused the company vehicle under the pretence that you
were visiting a colleague
for unclear reasons that has no business
with Transnet operations thereby abusing the vehicle.
4.
That on 11 April 2014 at approximately 11:00
until 14:41 you misused the company vehicle under false pretence that
you were visiting
SATAWU offices in Port Elizabeth whereas from the
data obtained from the Vehicle Event Data you never visited or
reached your destination
(SATAWU Offices) but instead you went other
places.
5.
That during the trips mentioned above on many
occasions you were speeding with the company vehicle violating
Transnet Fleet Management
Policy.
[3]
The applicants’ main ground of review is
that the commissioner’s finding that Mr Sozwe was guilty of
misconduct is not
supported by evidence led during the arbitration
proceedings. They argued that the commissioner misconstrued the
issues in dispute
and ignored the material evidence concerning the
purpose and authorisation of the trips; fleet management policy; Mr
Sozwe’s
knowledge of the policy and the consistent application
of discipline. Mr Sozwe was exonerated of the first charge. The
commissioner’s
finding on procedure is not challenged.
[4]
It is common cause that Mr Sozwe was a SATAWU
shop steward and his fellow shop stewards were passengers in one or
more of the impugned
trips.
Review
test
[5]
The Labour Appeal Court (LAC) handed down an
important judgment in
Head of the Department
of Education v Mofokeng
,
[2]
in which Murphy AJA relied on both of the aforesaid judgments in
finding as follows:
‘[30]
The failure by an arbitrator to apply his or her mind to issue which
are material to the determination of a case will
usually be an
irregularity. However, the [SCA] in
Herholdt
…
and this court in
Gold Fields
… have held that before
such an irregularity will result in the setting aside of the award,
it must in addition reveal a
misconception of the true enquiry or
result in the setting aside of the award. It must in addition reveal
a misconception of the
true enquiry or result in an unreasonable
outcome…
[31] …
Moreover, judges of the Labour Court should keep in mind that it is
not only the reasonableness of the outcome which
is subject to
scrutiny. As the SCA held in
Herholdt
, the arbitrator
must not misconceive the inquiry or undertake the inquiry in a
misconceived manner. There must be a fair
trial of the issues.
[32] …
To repeat: flaws in the reasoning of the arbitrator, evidenced in the
failure to apply the mind, reliance on irrelevant
considerations or
the ignoring of material factors etc must be assessed with the
purpose of establishing whether the arbitrator
has undertaken the
wrong inquiry, undertaken the inquiry in the wrong manner or arrived
at an unreasonable result …
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the
inquiry. In the final analysis, it will depend on the
materiality
of the error or irregularity and its relation to the
result. Whether the irregularity or error is material must be
assessed
and determined with reference to the distorting effect it
may or may not have had upon the arbitrator’s conception of the
inquiry, the delimitation of the issues to be determined and the
ultimate outcome. If but for an error or irregularity a
different outcome would have resulted, it will
ex hypothesi
be
material to the determination of the dispute. A material error
of this order’
[6]
In summary, on
Mofokeng’s
pronouncement:
6.1.
commissioners commit a gross irregularity where
they produce a substantively unreasonable
[3]
award or misconceive the nature of the enquiry or the true enquiry;
6.2.
where a commissioner fails to consider material
facts (i.e. facts the consideration of which would have produced a
different result),
this is
prima facie
proof
of an unreasonable result, but the applicant must ultimately
establish that the distorting effect of the misdirection caused
an
unreasonable result; and
6.3.
the failure to consider facts and issues may also
result in the commissioner misconceiving the nature of the enquiry or
the true
enquiry, leading to there being no fair trial of the issues
a classic gross irregularity.
[4]
[7]
Before
Mofokeng
,
and consistent with it, the LAC had often held that the failure to
consider material facts will typically give rise to an unreasonable
award. By way of example, as the LAC has put it:
7.1.
‘
Failure to properly consider the relevant
material facts placed before the [commissioner]
invariably
leads to a conclusion
that the decision of
the [commissioner] cannot be one which a reasonable decision-maker
would make in that proper account had not
been taken of the relevant
evidence.’
[5]
7.2.
‘
If a commissioner does not take into
account a factor that he is bound to take into account, his or her
decision
invariably will be unreasonable
.’
[6]
7.3.
‘
Where the arbitrator fails to have regard
to the material facts
it is likely
that he or she will fail to arrive at a reasonable decision.’
(own emphasis)
[8]
A commissioner shall be liable of misconceiving
the nature of the enquiry or true enquiry if he/she fails to address
a question
that is raised for determination. As the LAC has found,
this constitutes a reviewable irregularity.
[7]
Arbitration
proceedings
Was
Mr Sozwe aware of the policy?
[9]
Transnet led evidence of Mr Manfred Louw,
Corporate Employee Relations Manager, who testified that in terms of
the Fleet Management
Policy (the Policy) a driver who requests to use
a company vehicle must ensure that he/she completes the
logbooks/sheets. Any apparent
misuse of the company vehicle must be
investigated. The trip authorization form contains a disclaimer that
a person appending a
signature acknowledges that he is precisely
familiar with the Policy and guidelines and agrees to abide by them.
[10]
Employees requesting to use the company vehicle
must familiarise themselves with the contents of the Policy before
signing the trip
authorisation form. The Policy prohibits the use of
the company vehicle for personal use. Mr Sozwe, by signing the trip
authorisation
form, had acknowledged that he was aware of the Policy.
[11]
Mr Sozwe denied that he was aware of the details
of the Policy. He testified that on 25 March 2014 he was assisted by
Mr Jonas to
fill the trip authorisation form because it was his first
experience to request the company vehicle.
[12]
The commissioner rejected Mr Sozwe’s
evidence that he was unaware of the Policy. She, in turn, accepted
Transnet’s evidence
that Mr Sozwe had a duty to familiarise
himself with the Policy before appending his signature on the trip
authorisation form.
The commissioner relied also on the disclaimer
printed at the bottom of the trip authorisation form.
[13]
In my view, Mr Sozwe ought to have known, at
least, that a company vehicle should not be used for personal reasons
or for any purpose
other than the one authorised for. This, in fact,
is also common
sensical.
The commissioner’s finding in this regard cannot
be faulted.
Was
Mr Sozwe guilty of dishonest or misuse of company vehicle?
[14]
In relation to the second charge, on 31 March
2004 Mr Sozwe and his colleagues were authorised to visit the two
bereaved families
of the deceased employees of Transnet. Mr Sozwe
made two stops during the trip to purchase food; firstly, for Mr
Myburgh who is
diabetic and secondly, for all the shop steward
colleagues. Mr Louw testified that the trip to purchase food was
unauthorised as
they ought to have used the canteen in the plant.
[15]
The commissioner found that by stopping to enable
a diabetic colleague (Mr Myburgh) to buy food, Mr Sozwe breached the
policy and
stated that:
“Thus
one cannot argue that they used the vehicle for their own private use
in such circumstances. It might seem very
trivial to the
applicant to state that all other stops made which were two others in
total was because they were hungry. However,
one must take into
account that there were [sic] an employee utilises the vehicle for
personal use that is not in line with the
main purpose of seeking
authorisation such an act had nothing to do with the respondent and
where they have a canteen with food
and an employee deems it fit to
elect to purchase food in company time without authority it is clear
on charge 2 there was a breach
of the rule.”
[8]
[16]
The Applicants took issue with the commissioner’s
deviation from the logic she had applied to exonerate Mr Sozwe of the
first
charge, arguing that a stop for a meal on an authorised trip
cannot conceivably be regarded as “misuse” of the company
vehicle or departure from the Policy. The commissioner’s
finding in relation to the first charge is that:
“Though
it [the visit to the police station] was not captured in the trip
authority the applicant’s actions cannot be
construed as
‘misusing’ the vehicle when you contextualize the
circumstances surrounding charge 1 ... I take into account
that one
cannot overlook or misconstrue the meaning of the word ‘misuse’.
‘Misuse’ means using something
incorrectly, mistreating
or abusing an improper or excessive use. The applicant’s action
with regard to charge 1 I am of
the opinion that they do not fall
within that definition.”
[9]
[17]
Applicants’ counsel submitted that, having
correctly identified “misuse” of the company vehicle as
the sting of
the charges and defining her understanding of that
concept, the commissioner applied it in a completely different way
when considering
the remaining charges.
[18]
Certainly, the commissioner ignored the evidence
of Mr Sozwe, as corroborated by Mr Myburgh, that the stops were en
route to the
destination, a fact conceded by counsel for Transnet
during his submissions in court. Consistent with the logic used by
the commissioner
to exonerate Mr Sozwe on the first charge, the two
stops in this regard did not amount to misuse of company vehicle. It
would be
unreasonable to expect a person using company vehicle to
seek permission for a stop to refill petrol or to use bathrooms or,
as
in this case, to buy food during an authorised trip.
[19]
With regard to the third charge, the applicants
argued, similarly, that the purpose of the trip on 2 April 2014 was
to find Mr Myburgh.
The visit to the police station and the
Magistrates’ court were logically connected to the main purpose
of the trip which
was to find Mr Myburgh. Mr Sozwe was found guilty
of dishonesty merely because he failed to report that he had made
another trip
to the magistrates’ court and later to Mr
Myburgh’s house. The commissioner stated that:
“One
can infer from the applicant’s conduct that there was an
element of dishonest intention in the way that he handled
things.
The intention (or one can say motive) that can be inferred from such
conduct is that there was an intention to deceive
but there was no
genuine attempt by the applicant to act with integrity.
The
cumulative effect of such conduct can be construed as illustrating
that the applicant was dishonest in that he knowingly utilised
the
company vehicle for his own personal use at the expense of the
respondent
.”
[10]
[Emphasis added].
[20]
The applicants correctly argued that the above
finding is not supported by the premise it is based upon as the
commissioner blended
the notion of “personal use” and
“dishonesty”. Indeed, there was nothing personal about
the task to assist
Mr Myburgh as Mr Sozwe had been given authority to
find him. Also, the commissioner misdirected herself in finding that
Mr Sozwe’s
conduct constitutes dishonesty.
[21]
Nonetheless, I am of the view that Mr Sozwe did
misuse the company vehicle when he undertook the second trip to the
Magistrates’
court to post the bail bond for the release of Mr
Myburgh and thereafter accompanying him to his house. It is common
cause that
after locating Mr Myburgh, Mr Sozwe and his colleagues
drove back to the plant and packed outside. One of the passengers, Mr
Leeu,
went inside the plant and came back with the money which they
used as a bail bond. They drove back to the Magistrate’s court
and upon the release of Mr Myburgh, they accompanied him to his
house. In that instance, the company vehicle was clearly used for
purposes not authorised and in breach of the Policy.
[22]
In relation to the fourth charge, the
purpose of the trip on 11 April 2014 was to deliver documents to the
SATAWU offices. Sozwe
testified that it was an authorised trip but
they took a detour and drove to Zwide to track Mr Fanayo, an employee
of Transnet,
who had been absent without leave (AWOL) as requested by
Ms Annedine Van Brochen Rhode. It is common cause that Sozwe never
reached
the SATAWU offices. He testified that the SATAWU official
they were supposed to see telephoned to say that she had left the
office.
The commissioner rejected Mr Sozwe’s version and
accepted
Mr Louw’s
evidence that he had no intention to visit
SATAWU offices when he requested the motor vehicle. However,
Ms
Jawa testified that she had been waiting for Mr Sozwe and his
colleagues to deliver some documents.
[23]
The commissioner found that, since Mr Sozwe was
not authorised to use the company vehicle for a trip to look for an
AWOL employee,
as such he acted in his own volition when he misused
the motor vehicle for his own purpose. However, the commissioner
ignored Mr
Sozwe’s evidence that he had been requested to
undertake the second trip to Port Elizabeth. This evidence was
corroborated
by Mr Myburgh. At worst, Mr Sozwe misused the company
vehicle in breach of the Policy. The applicants correctly argued that
Mr
Sozwe’s conduct could not have led to the conclusion that he
was dishonest.
[24]
In respect of the fifth charge, Mr Sozwe pleaded
guilty of exceeding the speed limit during the said trips. In essence
he was guilty
of violating the Policy.
Consistent
application of discipline
[25]
Mr Sozwe testified that the decision to request
the company vehicle in relation to the first and second charges was
taken by the
shop steward council. In all the impugned trips he was
in the company of fellow shop stewards as passengers. Ms Gotyana, Mr
Leeu
and Myburgh were amongst the passengers in one or more of the
trips. It is common cause that only Mr Myburgh had been disciplined
and dismissed on similar charges. Mr Louw conceded under
cross-examination that the other passengers were not disciplined.
According
to Mr Louw, Mr Sozwe was responsible as he had refused to
assist Transnet in charging the other passengers. However, he did not
explain the type of help that was expected and in what way Mr Sozwe
impeded Transnet’s efforts to charge his other passenger
colleagues when it managed to charge Mr Myburgh.
[26]
It is trite that
the
disciplinary consistency is the hallmark of
progressive labour relations that every employee must be
measured by
the same standards.
[11]
Transnet clearly believed that all
the shop stewards who had been passengers during the challenged trips
were also guilty of misconduct.
In fact, in Mr Myburgh’s
matter, Transnet argued in its written submissions that he was
charged and dismissed, firstly, because
the Policy applies to all
Transnet employees including passengers; and secondly, that he was
the chairperson of the shop steward
council at that time and had to
take responsibility for the actions of the other shop stewards.
However, this argument was prudently
abandoned by its counsel in
court.
[27]
Transnet was enjoined
to treat “like cases alike”.
[12]
In the absence of evidence justifying differentiation between
employees who had committed similar transgressions on any material
basis, the inconsistency claim ought to have been upheld.
[13]
[28]
Certainly, the commissioner misconstrued
the applicable legal principles.
Appropriateness
of the sanction
[29]
In
Shoprite Checkers (Pty)
Ltd v Tokiso Dispute Settlement and Others,
[14]
the LAC reinvigorated the principle of progressive discipline. It is
stated that:
“
[18]
But
the law does not allow an employer
to adopt a zero tolerance approach for all infractions, regardless of
its appropriateness or
proportionality to the offence
,
and then expect a commissioner to fall in line with such an approach.
The touchstone of the law of dismissal is fairness and an
employer
cannot contract out of it or fashion, as if it were, a “no go
area” for commissioners. A zero tolerance policy
would be
appropriate where, for example, the stock is gold but it would not
necessarily be appropriate where an employee of the
same employer
removes a crust of bread otherwise designed for the refuse bin.
Commissioners should be vigilant and
examine the circumstances of each case to ensure that the
constitutional right to fair labour
practices, more particularly to a
dismissal that is fair, is afforded to employees
.”
[Emphasis added].
[30]
In this case, the commissioner commenced her
reasoning with an observation that ‘the situation is far from
ideal, and that
there cannot be a functional relationship between the
applicant and the respondent taking into account the strained
relationship.
[15]
There is no basis, on objective facts on record, to support this
finding other that the commissioners’ fixation with his
view
that Mr Sozwe was guilty of dishonesty. I agree with the applicants’
submission that once dishonesty is discounted,
the commissioner’s
finding that the trust relationship had been destroyed cannot
withstand scrutiny.
[31]
In my view the commissioner took a shotgun
approach in her analysis of evidence. Mr Sozwe was charged with
misuse of company vehicle,
an offence in terms of the Policy. It is
clear from the content of the Policy that a progressive approach in
enforcement of disciplined
is inherent.
31.1.
In terms of clause 5.9.6. Transnet may suspend or
revoke an employee’s vehicle use privileges where there is
evidence that
an employee is operating in an inappropriate,
dangerous, or negligent manner in breach of the Policy.
31.2.
Whilst, clause 5.12.1 provides that ‘employees
operating Transnet vehicles are expected to know and comply with road
traffic
regulatory requirements. That Transnet, in terms of clause
5.12.2, reserves a right to permanently revoke an employee’s
motor
use privileges and may take necessary action, in line with the
relevant HR Policies, for any repeated or deliberate violations of
the provisions of the Policy.
[32]
According to
Grogan
,
dishonesty is not a term that can be thrown at an employee in any
circumstances in order to justify a sanction of dismissal.
[16]
In
Nedcor
Nedcor
Bank Ltd v Frank and Others
,
[17]
the LAC referring to a Canadian case with approval stated that:
‘‘
Dishonesty’
is normally used to describe an act where there has been some intent
to deceive or cheat. To use it to describe
acts which are merely
reckless, disobedient or foolish is not in accordance with popular
usage or the dictionary meaning.’
[33]
In my view, the true essence of the charges is
not dishonesty as described above but rather the failure by Mr Sozwe
to strictly
comply with the Policy. There was
no
intention to steal, cheat, lie or act fraudulently evident to support
the commissioner’s finding that due to Mr Sozwe’s
conduct, the relation of trust has been broken irretrievably.
[34]
The applicants correctly argued that the
commissioner misdirected herself in concluding that the employment
relationship could not
be restored due to Mr Sozwe’s
bona
fide
attempt to defend himself against the
charges, not on the gravity of his misconduct.
[35]
Even though the commissioner took notice of the
fact that Mr Sozwe was a first time offender, she ignored the fact
that he was not
employed as a driver and that Transnet’s
evidence was limited to the charges of misuse of the company vehicle
and the breach
of the Policy.
[36]
In my view, in line with the Policy, this is a
typical case where suspension or revocation of Mr Sozwe’s
vehicle use privileges
would have sufficed as a punishment for the
breach of the Policy.
Conclusion
[37]
In all the circumstances, I
find
the commissioner to have misconceived
the true nature of the enquiry in that she failed to address a
question that was raised for
determination
and
to properly consider the relevant material
facts placed before her. The
award
accordingly stands to be reviewed and set aside.
[38]
In the interest of justice and
in line with the tenet of this Court to be hesitant to remit a
dispute back to the CCMA because of
the resultant delays, I deem it
appropriate not to remit this matter back to the CCMA. Having had the
benefit of reading the record,
pleadings and hearing oral argument; I
am in a position to decide the matter to finality. For all the
reasons alluded to
above, I am persuaded that the dismissal of Mr
Sozwe was substantively unfair.
[39]
On costs, it is practice not to award costs when
parties are involved in persisting collective bargaining
relationship. In this
case, Mr Sozwe was a SATAWU shop steward when
dismissed but subsequently joined NUMSA. I was not addressed also on
the current
status of the relationship between the parties. Since
both parties did not persist on this issue, I am disinclined to award
costs.
[40]
In the
premises, I make the following order:
Order
1.
The arbitration award
is reviewed and set aside and replaced
with the following order:
1.1
The dismissal of Mr Sozwe is substantively unfair.
1.2
Transnet is ordered reinstate Mr Sozwe retrospectively on the same
terms and conditions; and without loss of remuneration and
benefits.
1.3
The order in paragraph 1.2 must be effected within a month from the
date of this judgment.”
There
is no order as to costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
applicant:
Advocate G Grogan
Instructed
by: Gray
Moodliar Attorneys
For the
respondent:
Advocate M Simoyi
Instructed
by: Siya
Cokile Inc. Attorneys
[1]
Act
66 of
1995 as amended.
[2]
Head of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC); Subsequent to
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA) and
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and others
[2014]
1 BLLR 20 (LAC).
[3]
The test for substantive unreasonableness is, of course, that set in
Sidumo and another v Rustenburg Platinum Mines Ltd and others
[2007] 12 BLLR 1097
(CC) at para 110: ‘Is the
decision
reached by the commissioner one that a reasonable decision-maker
could not reach?’
[4]
As the LAC found in
Mofokeng
at
para: ‘He [i.e. the commissioner’s] failure to
properly apply his mind to these issues which were material
to the
determination of the dispute, and then to apply the provisions of
the applicable collective agreement to them, led him
to misconceive
the nature of the inquiry and failing to address the question raised
for determination.’
[5]
First National Bank – A division of First Bank
Ltd v Language and others
(2013) 34 ILJ 3103
(LAC) at para 17 (per Davis JA).
[6]
Gold Fields Mining South Africa (Pty) Ltd (Kloof
Gold Mine) v Commission for Conciliation, Mediation and Arbitration
and others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 21
(per Waglay JP).
[7]
Mofokeng
at para 34;
Mkhonto v Ford NO and others
[2000]
7 BLLR 768
(LAC) at para 6.
[8]
Award, page 18 at para 50.
[9]
Award, page 18, para 49.
[10]
Award, para 52 (Pleadings, 19).
[11]
See
SACCAWU
and Others v Irvin & Johnson
(1999) 20 ILJ 1957(LAC) at para 29;
Cape
Town City Council v Masitho and others
(2000)
21 ILJ 1957 (LAC) 1961A-F paras 13 and 14;
Chemical
Energy Paper Printing Wood and Allied Workers Union
and others v Metrofile (Pty) Ltd
(2004) 25 ILJ 231 (LAC) paras 42 and
57-59;
Gcwensha v
CCMA and Others
(2006)
3 BLLR 234
(LAC) at par 37-38
;
Greater Letaba Local Municipality v Mankgabe NO and others
[2008]
3 BLLR 220
(LC);
CEPPWAWU
v NBCCI and Others
[2011]
2 BLLR 137 (LAC).
[12]
Early Bird Farms (Pty) Ltd v
Mlambo
[1997] 5
BLLR 541 (LAC).
[13]
Southern Sun Hotel Interests
(Pty) Ltd v CCMA and others
[2009]
11 BLLR 1128
(LC) at para 10.
[14]
[2015] ZALAC 23
;
[2015] 9 BLLR 887
(LAC) ; (2015) 36
ILJ 2273 (LAC) at para 18.
[15]
Award, page 18, para 50.
[16]
Grogan,
Dismissal,
2
nd
edition,
page 229
[17]
[2002] ZALAC 11
at para 15.