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[2017] ZALCPE 33
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Independent Concrete Mthatha CC v Commission for Conciliation Mediation and Arbitration and Others (PR 276/14) [2017] ZALCPE 33; [2018] 3 BLLR 286 (LC) (24 November 2017)
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
Not Reportable
CASE NO: PR 276/14
In
the matter between
INDEPENDENT
CONCRETE MTHATHA CC
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
NOZIGQWABA
M N.O Second
Respondent
NUM
obo LIMEKHAYA, V.E
Third
Respondent
Heard:
10 November 2016
Delivered:
24 November 2017
Summary:
When the applicant has not established valid grounds for the Labour
Court to interfere with the value judgment of a commissioner
of the
CCMA, the arbitration award of that commissioner falls within bounds
of reasonableness and not reviewable.
JUDGMENT
Lallie,
J
Introduction
[1]
In this application the applicant seeks an order reviewing and
setting aside an arbitration award of the second respondent who
will
be referred to as the commissioner in this judgment. It is opposed by
the third respondent.
Factual
background
[2]
The applicant supplies ready mixed concrete to the building and civil
construction industry. In March 2014, it had a contract
with DGI
Construction (DGI) which was building a shopping mall in Mthatha (the
mall). It employed the third respondent as a truck
driver whose
duties included delivering the applicant’s product. In terms of
the contract, the applicant had to deliver ready
mixed concrete at
the mall building site. DGI dug holes of about 3x3 metres in
size and half a metre deep in the construction
of the mall. On 24
March 2014, the third respondent drove into one of the holes while
delivering ready mixed concrete at the mall.
He was issued with a
final written warning for reckless and negligent driving thereby
causing damage to the applicant’s property.
On 25 March 2014,
the third respondent reversed into another hole. He was subjected to
a disciplinary enquiry the chairperson of
which took a decision to
dismiss him. He referred an unfair dismissal dispute to the CCMA
where the commissioner found his dismissal
unfair and ordered the
applicant to reinstate him. In this application the applicant seeks
an order reviewing and setting aside
the commissioner’s
arbitration award.
The
award
[3]
The commissioner found the third respondent’s dismissal unfair,
mainly because the applicant was partly responsible for
the truck
reversing into the hole. He found that the third respondent’s
evidence that the holes were supposed to be marked,
had no reflectors
or safety nets was not disputed. He further found that the applicant
did not properly quantify the expenses incurred
as a result of the
incident. An additional reason was that the applicant’s
disciplinary code did not prescribe the sanction
of dismissal when
the offence was committed for the second time while a final written
warning was still valid. As he had found
the dismissal substantively
unfair and harsh, he ordered the applicant to reinstate the third
respondent.
Grounds
for review
[4]
The applicant submitted that the commissioner committed gross
irregularities and/or exceeded his powers as an arbitrator and
failed
to act as a reasonable decision-maker in that he failed to appreciate
the law applicable to pre-existing and current final
written
warnings. The third respondent denied that the commissioner
misunderstood the law in this regard because an employee’s
dismissal is not automatically justified on commission of similar
misconduct pursuant to the issuing of a final written warning.
The
applicant further submitted that the finding that the applicant was
partly to blame for the third respondent’s misconduct
was not
based on the evidence before him. Opposing this ground for review,
the third respondent submitted that it was his evidence
at
arbitration that the applicant contributed to the accident by not
taking the necessary measures to warn him of the area where
the hole
was. The applicant submitted that the commissioner erred in finding
that the applicant’s failure to call a witness
to prove the
expenses incurred by the applicant as a result of the accident
justified a sanction less than dismissal. The third
respondent
submitted that the finding is justified and based on evidence of the
truck’s maintenance report which reflected
that most of the
repairs made were not related to fixing the clutch of the truck the
third respondent was alleged to have damaged.
Test
for review
[5]
The applicant submitted that the award is defective as envisaged in
section 145 (2) of the Labour Relations Act
[1]
and that the commissioner committed errors in the conduct of the
arbitration proceedings which resulted in him reaching an
unreasonable
decision. In argument, the applicant relied on authority
which is based on the following
dictum
in
Head
of the Department of Education v Mofokeng and others
[2]
“
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”.
[6]
In determining whether the applicant established grounds for review,
this court is enjoined to consider the evidence which served
before
the commissioner in its totality. The applicant submitted that the
commissioner erred in finding that it was partly responsible
for the
incident of 25 March 2014 and basing on that finding his decision
that the sanction of dismissal was inappropriate. The
applicant
argued that it was never the evidence of the third respondent or
anyone else that the holes were supposed to be marked.
The third
respondent submitted that it was his evidence at arbitration that he
did not see the holes because it was dark, the holes
were unmarked
and the reverse lights of the truck were not working. A reading of
the record supports the third respondent’s
version that he
testified at the arbitration that all the holes had no reflectors, no
danger nets and no danger plates. His evidence
was not challenged and
the applicant did not raise the issue that those safety measures
should not have been provided. The commissioner
can therefore not be
faulted for relying on the third respondent’s unchallenged
evidence
[7]
The applicant’s argument that the foundation of the finding
that it contributed to the incident of 25 March 2014 has no
merit as
it is not supported by evidence is unsustainable. Mr Alberts
(Alberts) who testified on behalf of the applicant did not
refute the
third respondent’s evidence that he reported the condition of
the reverse lights to the applicant’s mechanic.
[8]
The applicant further submitted that the commissioner erred in not
taking into account that the legal position in respect of
final
written warnings is that they constitute a warning that any future
transgression could lead to dismissal. The third respondent
argued
that the applicant’s reliance on the final written warning was
misplaced as the third respondent was charged and dismissed
for
reversing into holes on two occasions. The third respondent was
dismissed for reckless and negligent driving which resulted
in damage
to the applicant’s truck. The commissioner accepted the
applicant’s version that the third respondent was
on final
written warning for similar misconduct. In reaching his decision on
sanction, the commissioner found that the applicant’s
disciplinary code does not prescribe dismissal if the offence is
committed for the second time while a final written warning
subsisted.
This finding is consistent with Alberts’ evidence
that the applicant’s disciplinary code provides that an
employee
found guilty of negligent or reckless driving should first
be given a sanction of a final written warning. If the employee
commits
the same offence for the second time while the warning is
still valid, the employee should be subjected to a disciplinary
hearing
which may result in the imposition of a sanction of
dismissal. When the third respondent repeated the misconduct on 25
March, dismissal
was not an automatic sanction but one of the
sanctions that could be issued in terms of the disciplinary code.
[9]
Contrary to the applicant’s submissions, the commissioner did
not error in finding the third respondent’s dismissal
for the
incident of 25 March 2014 inappropriate. The commissioner used his
value judgment in reaching his decision on the fairness
of the third
respondent’s dismissal. He based his decision on the evidence
before him that the third respondent was charged
and dismissed for
similar misconduct he committed on two occasions although he had been
issued with a final written warning on
24 March 2014 for one of those
occasions. His finding that the applicant contributed to the incident
of 25 March 2014 cannot be
faulted. The applicant did not establish
valid grounds for this Court to interfere with the manner in which
the commissioner exercised
his value judgment. The award falls within
bounds of reasonableness.
[10]
I am not convinced that the applicant acted unreasonably in bringing
this application. In the circumstances a costs order against
the
applicant will not be appropriate.
[11]
In the premises, the following order is made:
Order:
1.
The application for review is dismissed.
Lallie
J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Mr
Kirchmann of Kirchmanns
Attorneys
For
the Third Respondent: Advocate Grogan
Instructed
by: Wesley
Pretorius & Association
[1]
66 of 1995 (the LRA)
[2]
[2015] 1 BLLR 50
(LAC)
para 33: