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[2018] ZALCJHB 58
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Khumalo v National Bargaining Council for the Road Freight Industry and Others (JR1394/16) [2018] ZALCJHB 58 (2 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 1394/16
In
the matter between
MENZI
SYDNEY KHUMALO
and
NATIONAL
BARGAINING COUNCIL FOR
THE
ROAD FREIGHT INDUSTRY
MXOLISI
MANTSHULE N.O.
DIGISTICS (PTY) LTD
Applicant
First
Respondent
Second
Respondent
Third
respondent
Heard:
31 January 2018
Judgment:
2 February 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent (the arbitrator) on
date
. In
his award, the arbitrator held that the applicant had been fairly
dismissed by the third respondent.
[2]
The factual background is not in dispute. The applicant was employed
by the third respondent as a driver. He was dismissed on
18 January
2016, pursuant to him being found guilty of gross misconduct by
failing to follow the drivers’ code of conduct
procedure and
the Road Traffic Act, in that he had been found to have exceeded the
applicable speed limit in the Belfast area.
The applicant contested
the fairness of his dismissal, a matter that was referred ultimately
to an arbitration hearing conducted
by the arbitrator. In the course
of his award, the arbitrator ruled that the applicant’s
dismissal was procedurally fair.
That finding is not contested in
these proceedings. In regard to substantive fairness, the arbitrator
came to the following conclusion:
In dealing with substantive fairness,
this hearing was faced with an employee who denied speeding,
challenged the very systems used
to monitor driver behaviour and
control of the vehicle. On the other hand there was an indirect
admission to speeding but blamed
on the vehicle and not the driver.
Turning to that substantive fairness the only issue for consideration
really is the appropriateness
of dismissal as a sanction. A denial of
clear information showing speeding does not put the Applicant in good
light. In fact his
denial was nothing but a bare denial; which on its
own is not evidence and should be treated with the disdain it
deserves. It is
common knowledge that this country does not have
human and other resources to police every metre of asphalt in order
to catch errant
drivers. For the applicant to claim that the absence
of a traffic infringement notice means he was not in breach of any
rules of
the rules (sic) is a sign of a man out of touch with
reality….
[3]
The arbitrator rejected the explanation proffered by the applicant
that he had exceeded the speed limit because the vehicle’s
alignment was faulty, one of the tyres was worn and that he was
driving downhill with a heavy load. The arbitrator observed that
all
of these factors ordinarily ought to have compelled the applicant to
drive more slowly. As the above quote from the award under
review
reflects, the arbitrator also noted the incongruence between the
applicant’s denial that he had exceeded the speed
limit on the
one hand, and his explanations for doing so on the other, all of
which sought to shift blame from himself.
[4]
In regard to the appropriateness of dismissal as a sanction, the
arbitrator took into account the applicant’s personal
circumstances, his length of service (just over three years) and
significantly, the fact that he had on record a valid final written
warning for speeding issued less than a month prior to the incident
that gave rise to his dismissal. In those circumstances, the
arbitrator upheld the sanction of dismissal.
[5]
The test to be applied in the present instance is well-established.
It is not sufficient for the applicant to contend that the
arbitrator
came to a decision that is incorrect, or that a different arbitrator
would have come to a different decision. This court
is empowered to
intervene by way of review if and only if the decision to which the
arbitrator came is so unreasonable that no
reasonable decision-maker
could have come to it on the available material. That is a
significant hurdle for any applicant to jump.
Further, the Labour
Appeal Court has cautioned against an approach that seeks to trawl
through the evidence with a fine toothcomb,
seeking misdirection on
the part of the arbitrator in his or her assessment of it. In
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), the LAC held that an arbitrator should afford the
parties a full opportunity to have their say in respect of the
dispute,
identify the dispute that he or she is required to
arbitrate, understand the nature of the dispute, deal with the
substantive merits
of the dispute and arrive at a decision that falls
within a band of decisions to which a reasonable decision-maker could
come on
the available evidence.
[6]
The applicant’s grounds for review are reflected in his
founding and supplementary affidavits. In essence, the applicant
contends that the arbitrator failed to consider and properly assess
evidence that he had proffered in the arbitration proceedings,
and
that the arbitrator was biased. The latter ground was not pursued at
the hearing of the application. In essence, the applicant’s
counsel made two primary submissions. The first was that the
applicant had not breached the driver’s handbook or the Road
Traffic Act and that he could not therefore be said to have committed
any offence. Secondly, the applicant submitted that dismissal
was too
harsh a sanction, in particular, having regard to his personal
circumstances.
[7]
In regard to the first ground for review, it was not seriously
disputed that the applicant had in fact exceeded the speed limit.
The
uncontested evidence disclosed that the applicant had been recorded
driving at 83 km/h in an 80 km/h zone. The respondent monitors
the
speeds at which its vehicles are driven on a continuous basis. The
applicant did not challenge the assertion that the third
respondent’s
recordal systems had established that he had driven in excess of the
applicable speed limit. Mr Mosime, who
appeared for the applicant,
submitted that the applicant was not guilty of any misconduct because
he had not been caught speeding
by the road traffic authorities, nor
had they issued any notice of infringement. What this defence amounts
to is one which would
permit an employee to commit acts of
misconduct, provided that he or she was not caught in the act. The
purpose of the rule applied
by the third respondent, and which the
applicant was found to have contravened, is ultimately to ensure the
safety of its drivers
and other users of the road. It simply cannot
be that the applicant was not guilty of any transgression of the
rules simply because
the traffic police did not trap him or issue any
notice of infringement.
[8]
In regard to the appropriateness of dismissal as a sanction, the
capacity for this court intervention was established by the
Constitutional Court in
Sidumo
. In that case, the court held
that, as I have mentioned above, this court by the review and set
aside an arbitrator is finding
only is the finding falls outside of
the band to which reasonable-decision makers could come on the
available material. The evidence
that served before the arbitrator
was that the applicant had infringed a workplace rule, that he had
been warned on three previous
occasions for the same offence and that
a final written warning was in place at the time that he committed
the offence for which
he was ultimately dismissed. I fail to
appreciate how it can be said that in those circumstances, the
arbitrator’s decision
to the effect that dismissal was an
appropriate sanction, can be said to be unreasonable. Other
commissioners may well have come
to different conclusions and given,
for example, the marginal degree by which the applicant had exceeded
the speed limit afforded
the applicant yet another opportunity to
redeem himself. But, as the authorities make clear, that is not the
applicable test.
[9]
In short, in my view, both in relation to the existence of misconduct
and the appropriateness of sanction, the applicant has
failed to
establish that the arbitrator’s award is so unreasonable that
it ought to be reviewed and set aside.
[10]
Finally, in regard to costs, the third respondent charitably does not
seek any order for costs given that the applicant is
an individual
employee and that his representatives act for him on a
pro bono
basis.
I
make the following order:
1. The application
is dismissed.
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. K Mosime, instructed by Moni Attorneys
For
the third respondent: Adv. L Malan, instructed by Hogan Lovells Inc.