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[2018] ZALCJHB 28
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HRR Schaefer Vervoer (Emds) Bpk v SATAWU obo Moleta and Others (JR1445/14) [2018] ZALCJHB 28 (6 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 1445-14
Not
Reportable
In
the matter between:
HRR
SCHAEFER VERVOER (EMDS) BPK
Applicant
and
SATAWU
obo MFANA MOLETA
First Respondent
NBCRFLI
Second Respondent
THABANG
T SERERO
N.O
Third Respondent
Heard:
6 February 2018
Delivered:
6 February 2018
EX TEMPORE
JUDGMENT
WHITCHER,
J:
[1]
This
is an unopposed application to review and set aside the arbitration
award dated 13 June 2014 issued by the third
respondent, in
which award he found that the first respondent’s dismissal was
substantively unfair and ordered the applicant
to retrospectively
reinstate the first respondent and pay him back-pay of eight (8)
months’ salary.
[2]
The
first respondent’s service was terminated on 13 September 2013,
after he was found guilty of negligent and/or
dangerous driving and
disobeying traffic ordinances.
[3]
It
is evident from the award that the arbitrator accepted that the
applicant had proved that the first respondent did attempt to
reverse
a 22-meter vehicle (consisting of a horse and trailer) in on-coming
traffic, on a blind rise and in misty weather conditions.
Evidence
was also led on the high value of the vehicle and its contents.
[4]
Further
thereto the arbitrator found that the employee conduct was serious
and had been potentially dangerous to life and property.
[5]
The
arbitrator, however, indicated that he could not find that the
employee’s conduct had destroyed the trust relationship,
as it
was the employee’s first offence. In the result, he found that
the sanction of dismissal was unfairly “harsh”.
In his
view, the employee should have been issued with a warning.
[6]
I
agree with the applicant that, in reasoning so, the arbitrator failed
to appreciate the following material factors:
(i)
The
employee had been employed in a position of trust. He was employed as
a professional code 14 driver, he was entrusted with valuable
company
property and clients’ loads and trusted to drive with the
necessary care without supervision.
(ii)
The
offence was a serious driving violation, and made more serious by the
potential damage to life and valuable property that could
have been
caused had there been a collision. The courts have held that where
the consequences of a single act or omission are particularly
serious
or where an employee holds a position of trust in which negligence on
a single occasion may have had disastrous consequences,
dismissal may
be justified on the first occasion.
[1]
(iii)
The
applicant led evidence to the effect that it could no longer trust
the employee as a driver, particularly with such a high end
vehicle.
(iv)
The employee conceded during cross examination that his offence was a
dismissal offence.
[7]
Had
the arbitrator appreciated these factors and case law on the subject,
he would have been constrained to find that the dismissal
was
substantively fair.
[8]
Further
to the above, it was not within the purview of the arbitrator to
decide what he would have done (for example, issue a warning).
The
only decision he had the power to decide was whether the applicant
acted fairly in dismissing the employee.
[9]
In
light of my findings, there is no need to consider whether the
back-pay awarded was unreasonably excessive.
[10]
The
applicant agreed not to pursue a cost order.
Order:
[11]
In the
premises, the following order is made:
1.
The
arbitration award issued by the third respondent under the auspices
of the second respondent is set aside on review and substituted
with
an award that the dismissal of the first respondent [M Moleta] was
substantively fair.
2.
The
application to make the award an order of court is dismissed.
___________________________
B Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant:
Ms S Bernhardt
Instructed
by:
Yusuf Nagdee Attorneys
For
the first respondent:
Mr B Mokoena,
union official
[1]
See for instance,
Somyo
v Ross Poultry Breeders (Pty) Ltd
(1997) 7 BLLR 862
(LAC)