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[2017] ZALCPE 32
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Transnet Rail Engineering v Commission for Conciliation, Mediation and Arbitration and Others (PR18/15) [2017] ZALCPE 32; [2018] 3 BLLR 317 (LC) (3 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PR18/15
In
the matter between
:
TRANSNET
RAIL
ENGINEERING
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
ANTONIO
MOODALEY
N.O.
Second
Respondent
NATIONAL
UNION OF METALWORKERS OF SA Third
Respondent
(‘NUMSA’)
OBO HENRY MYBURGH
Heard:
13 September 2017
Delivered:
3 November 2017
Summary:
Substantive fairness – no proof that the commissioner ignored
material facts - finding beyond reproach.
Procedural
fairness – where there is no prejudice suffered by an employee
due to delay in instituting disciplinary, a finding
of procedural
unfairness is untenable.
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 (commissioner),
acting
under the auspices of the first respondent, the Commission for
Conciliation, Mediation and Arbitration (CCMA). The applicant
(Transnet) is challenging the commissioner’s finding that the
dismissal of Mr Myburgh was substantively and procedurally
unfair.
The application is opposed by Third Respondent (NUMSA).
[2]
Mr Myburgh
was employed as a forklift operator with four years’ service.
He was dismissed on 28 October 2014 after being found
guilty of
dishonesty arising from the alleged misuse of a company vehicle. He
was charged with Gross misconduct: Dishonesty and/or
misuse of
company vehicle: the charges were couched as follows:
1.
That you on
28 March 2014, 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 you on
31 March 2014, 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 for private
purpose.
3.
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 to other places.
[3]
Transnet’s
main grounds of review are that the award issued by the commissioner
is not justifiable in relation to the reasons
given for such award;
that it is not rational or justifiable in its merits or outcome and
is not an award that a reasonable decision
maker could have arrived
at on both substantive and procedural fairness.
Review
Test
[4]
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.’
Substantive
fairness
[5]
The facts
in this matter are mostly common cause. Mr Myburgh, who was the
chairperson of the shop steward council, and other shop
stewards were
passengers in the company vehicle that had been signed out and driven
by Mr Sozwe, a fellow shop steward, for their
use during the three
impugned trips. Out of all the passengers, he was the only one
charged and dismissed. Also Mr Sozwe, the driver
was charged for the
same misconduct, amongst others, and dismissed.
[6]
The issues
for determination were whether a passenger in a company vehicle could
be held accountable for its misuse and/or failure
to correctly
complete trip authorisation form and logbook in terms of the Policy;
inconsistent application of discipline and appropriateness
of the
sanction.
[7]
Transnet
led evidence of Mr Manfred Louw, Corporate Employee Relations Manager
who testified that even though Mr Myburgh was not
the driver, he was
the chairperson of the shop steward council and played a major role
in the decision to request the company vehicle.
He was, therefore,
liable for the misuse of the company vehicle and dishonesty.
[8]
The
commissioner correctly rejected Mr Louw’s evidence as the
Policy only refers to the driver’s responsibilities in
relation
to the usage of the company vehicle and the documentation of
individual trips.
[9]
In these
proceedings, Transnet argued that Mr Myburgh was using the company
vehicle to execute his official duties as a shop steward
hence he was
liable for its misuse. That the commissioner overlooked Transnet’s
evidence that the trips were consequent to
the decision by the shop
steward council. These submissions are flawed given the fact that out
of the whole body of the shop steward
council, it is Messrs Myburgh
and Sozwe who were singled out for discipline.
[10]
Even though
the commissioner found that the Policy is only applicable to drivers
and not passengers, he proceeded to deal with each
incident on the
charge sheet.
[11]
In respect
of the incident of 28 March 2014, the commissioner accepted Mr
Myburgh’s evidence that the trip to visit the family
of the
deceased employee had been authorised; the explanation proffered for
the detour to Mount Road Police Station, to identify
the body of the
deceased, was reasonable; and that the trip was not for personal
reasons hence it could not be said that he committed
an act of
dishonesty or misused the company vehicle. It is interesting to note
that the same finding was made by the commissioner
in Sozwe’s
matter and was never challenged by Transnet.
[12]
In respect
of the incident of 31 March 2014, the commissioner found that there
was no policy prohibiting stops on authorised trips.
The stops were
necessary since there was a diabetic patient, Mr Myburgh himself, who
had to eat before taking medication. The stops
were en route to the
authorised destination. Therefore, they could not have constituted a
misuse of company vehicle or dishonest
conduct.
[13]
In respect
of the incident of 11 April 2014, the commissioner found that, even
though the trip to look for an employee who was AWOL
was
unauthorised, there was a valid request by Ms Van Brochen Rhode to
undertake same. The driver was responsible for amendment
of the trip
authorisation and not the passenger.
[14]
On
consistency, the commissioner found that there was no reasonable
explanation proffered by Transnet for not charging other shop
stewards. He found accordingly that Transnet applied discipline
inconsistently.
[15]
In all the
circumstances, I am unable to find that the commissioner ignored any
material factor in evaluating the evidence on substantive
issues. The
commissioner’s findings in this regard are beyond reproach.
Procedural
fairness
[16]
Transnet
correctly argued that the commissioner misdirected himself in his
finding on procedure as it is solely based on the fact
that Transnet
did not charge Mr Myburgh timeously. Despite having noted that there
had been no prejudice suffered by Mr Myburgh
as a result of the
delay, he still found that Transnet acted procedurally unfair.
[17]
It is clear
that the commissioner followed a checklist approach to the
requirements of procedural fairness in terms 4.1 of item
of the LRA
Code of Good Practice: Dismissal (the Code) which is not required.
[3]
What is crucial is that Mr Myburgh had been confronted with a set of
facts that are sufficiently particular to enable him to respond
thereto and offer a rebuttal or explanation that gave an account of
his innocence.
[4]
[18]
In my view,
the commissioner applied a standard of procedural fairness that is
out of sync with the informal model of procedural
fairness provided
for in the Code of Good Practice: Dismissal. This, in itself,
constitutes a reviewable defect.
Conclusion
[19]
In
all the circumstances, I have no reason to interfere with the finding
of the commissioner that the dismissal of Mr Myburgh was
substantive
unfair. On the contrary, when it comes to procedure, the commissioner
certainly
misconceived
the true enquiry in that, despite having noted that Mr Myburgh was
not prejudiced by the delay in instituting disciplinary
hearing, he
still found that the procedure was unfair. That conclusion is not
sustainable on the facts of this case and certainly
does not fall
within the category of reasonable decision makers.
[20]
In
the interest of justice, I am hesitant to remit this matter back to
the CCMA because of the consequential delays.
[21]
On costs,
in the light of the partial success by both parties, I make no order
as to costs.
[22]
In the
premises, I make the following order:
Order
1.
The review
on the ground that the first respondent’s finding in respect of
substantive fairness is unreasonable is dismissed;
2.
The review
on the ground that the first respondent’s finding in respect of
procedural fairness is unreasonable succeeds.
The award
in this regard is replaced with the following order:
2.
The dismissal of Mr Myburgh is procedurally fair.
3.
There is no
order as to costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Advocate M Simoyi
Instructed
by: Siya
Cokile Inc. Attorneys
For
the respondent:
Advovate G Grogan
Instructed
by: Gray
Moodliar 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]
Malelane Toyota v CCMA
[1999] 6 BLLR 555 (LC).
[4]
Avril Elizabeth Home for the
Mentally Handicapped v CCMA and others
[2006]
9 BLLR 833
(LC) at 841H – 842E.