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[2018] ZALCJHB 82
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Mitre Veneering CC v Commission for Conciliation, Mediation and Arbitration and Others (JR1440/14) [2018] ZALCJHB 82 (6 March 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: JR 1440/14
In
the matter between:
MITRE
VENEERING CC
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
DIDA MASENYE
(
N.O.
)
Second Respondent
ITU obo ALBERT DLAMINI
Third Respondent
Heard
:
22 February 2018
Delivered
:
06 March 2018
Summary:
(Review – reasonableness – misconstruing evidence –
failing to consider the weight of
untested evidence – failure
to consider overall probabilities in dealing with mutually
destructive versions)
JUDGMENT
LAGRANGE
J
Background
[1]
This is a review application of an arbitration award. The arbitrator
reinstated two employees after finding that they had not
been guilty
of attempted theft of boarding material belonging to a client.
[2]
The incident giving rise to the dismissal occurred when the two
employees had delivered approximately 60 boards to the client
(‘Da
Vinci’), and Da Vinci’s factory manager was alerted to
the presence of 4 other boards on the vehicle after
the delivery had
been unloaded. He identified those boards as belonging Da Vinci. His
un-contradicted testimony was that the applicant
company (‘Mitre’)
did not make that type of board. By implication, the four boards
could not have been boards loaded
on the van for a subsequent
delivery to another client. In addition to the four boards, there
were cover boards on the vehicle
which are boards used to protect the
stock and two other boards destined for delivery to Ukhuni, another
client of Mitre’s.
He returned to his office to call the sales
representative of the Mitre who was at the client’s office at
the time. He wanted
to show him the board’s which had been
loaded onto the truck, but when they returned to the vehicle, the
board’s had
been removed and the two employees denied having
offloaded anything from the truck apart from the 60 boards which they
delivered.
[3]
The arbitrator found that the employees were not guilty of the
attempted theft and ordered their reinstatement. The arbitrator
effectively concluded that the only reason Mitre had dismissed the
employees was because it feared losing the contract of Da Vinci
if it
was not seen to act decisively in dealing with the alleged
misconduct. As such, the arbitrator accepted that an improper
motive
was the real reason for the dismissal. In considering the evidence of
Da Vinci’s factory manager, she decided that
his evidence of
the four boards being on the vehicle had to be disbelieved as hearsay
because he had not seen the board’s
being loaded onto the
vehicle or offloaded.
Grounds
of review
[4]
Mitre takes the award on grounds of unreasonableness and on the basis
that the arbitrator misconstrued some of the evidence.
The key issue
to be considered in a review of this kind is whether the findings of
the arbitrator which the applicant challenges
are ones that could not
logically be sustained if the arbitrator had not made the supposed
errors identified.
First
ground:
[5]
The applicant contends that the Commissioner could not reasonably
have concluded that it dismissed its two employees because
the client
had asked it to do so under threat of losing the contract with the
client. In this regard, the applicant argues that
there was no reason
for da Vinci to fabricate the complaint against the employees as
there was nothing da Vinci stood to gain by
doing so. The arbitrator
ought to have realised that the applicant’s relationship with
the client was jeopardised by conduct
of the two employees and not
because the client was looking for some pretext to end the contract
and had trumped up the complaint
in order to provide the reason. It
further points out that the arbitrator ignored evidence that the
client also dismissed two of
its own employees relating to the
incident.
Second
Ground:
[6]
The arbitrator misconstrued the evidence of the factory manager in
saying that it was hearsay evidence because he did not see
the
loading or offloading of the boards in question. In so doing, the
arbitrator ignored the fact that the factory manager had
testified to
seeing boards of his company on the vehicle and that when he returned
from the office with Mitre’s sales manager
the four boards had
already been removed. The arbitrator also unreasonably discounted his
evidence that the two employees could
not provide him with an invoice
in support of their claim that the four boards were on the truck for
another client.
Third
ground:
[7]
The applicant argues, in the alternative that, even if the dismissal
was unfair, the Commissioner misconstrued the evidence
in finding
that there was no evidence indicating that the employment
relationship had broken down in deciding that reinstatement
was
appropriate. It contends that based on the outcome of the
disciplinary enquiry and the seriousness of the misconduct, the
arbitrators decision to reinstate the applicants could not be
justified. This ground is not really a competent ground of review
because the arbitrator decided that the employees were not guilty of
attempted theft. If she had found them guilty then a finding
of
untrustworthiness would have been implicit in the outcome, but in the
absence of that finding there was no other evidence on
which
untrustworthiness could have been established.
Evaluation:
First
Ground
[8]
In deciding that the charges against the two employees were brought
about because da Vinci had instructed Mitre to dismiss them,
or had
implied that it must do so, under threat of the contract being
terminated, the arbitrator referred at paragraph 5.3 of her
award to
the comment by the chairperson of the disciplinary enquiry to the
effect that neither company stood to gain anything by
fabricating the
charges, but that the applicant stood to lose its biggest client if
no action was taken against the two employees.
The arbitrator
also found that the fact that the client had also dismissed two of
its own employees in connection with the incident
placed undue
pressure on the applicant to dismiss its employees as well.
[9]
I accept that the arbitrator was entitled to draw an inference that
there might have been pressure on the applicant to take
disciplinary
steps, when the client had complained to it, but the arbitrator’s
job was to determine for herself whether or
not the evidence
supported the charges against the employees. What the arbitrator
appears to have done was to have concluded that
the applicant had a
motive to act which determined the outcome of the hearing. Even if
the arbitrator believed that to be true,
her job was to independently
assess if the evidence relating to the charges supported the case
against the employees
[10]
Moreover, it is not apparent that the comment by the chairperson of
the disciplinary enquiry was ever referred to in the arbitration
proceedings, and da Vinci’s factory manager’s evidence
was simply that his employer had requested Mitre to take the
matter
further but had not recommended dismissal as such. Da Vinci had also
independently laid charges of attempted theft against
the applicants
and its own employees who were implicated in the incident, so it took
its own steps against them irrespective of
what Mitre did. . In
passing it should also be mentioned that no evidence was advanced why
Da Vinci would have had any reason to
cancel the contract and why it
would have needed a pretext to do so.
[11]
In short, the arbitrator’s reliance on a conspiracy initiated
by Da Vinci cannot logically be supported by the evidence
before her
and the review succeeds on this ground alone.
Second
ground
[12]
The arbitrator’s analysis of the factory manager’s
evidence is set out in paragraph 5.6 of the award, supplemented
by
what is set out in paragraph 5.8.:
“
5.6
Mr Bosman’s evidence was based on hearsay. I am saying this
because he did not see the loading or offloading of the boards in
question. If he had indeed found the unauthorised boards
on the track the applicant was driving, or he had to do was to give
an instruction to one of his subordinates to call Ashwin [Mitre’s
sales manager] from his office so that he could come and witness or
see the evidence. Instead he walked away from the truck to
call
Ashwin and when they came back the boards in question could not be
found on the track. I find this version of Mr Bosman not
probable. It
was no evidence led which would have indicated that Mr Sunday or any
other employee of da Vinci decor saw the applicant
and his assistant
offloading back the boards in question to where they were originally.
5.8
The testimony of the applicant that there were cover boards
on the
truck was not challenged. Ashwin worked for the respondent and on
verification of the invoice of Ukhuni, he could have disputed
that
there was no such delivery. But there was no such dispute or
challenge. In fact he did not witness anything.”
[13]
The arbitrator correctly observed that Bosman did not actually
observe the loading of the boards on to the truck or their
offloading. He criticises the factory manager for not remaining on
the scene and sending someone else to call the applicant’s
sales manager to witness the boards on the truck. What the arbitrator
does not deal with is the direct evidence of Bosman that
he saw and
identified the boards on the truck as boards belonging to Da Vinci,
which could not have formed part of a delivery of
boards by Mitre
because Mitre did not make that specific type of board. Under
cross-examination, Bosman confirmed that four boards
he had seen on
the vehicle were double faced Sapele Veneer, which Mitre did not
make. He was never challenged on this assertion.
Bosman had also
testified that he had asked the employees if they had any other
deliveries to and they had said they did not and
could not provide
him with any invoices except for the boards which they had delivered
to his firm and two other boards which remained
on the vehicle, which
were destined for Ukhuni. It was put to him under cross-examination
that there was an invoice for the 4 boards
in question. It was common
cause on the evidence that there were two other boards to be
delivered to another client Ukhuni. The
arbitrator appears to have
confused these two boards with the four boards identified by the
Bosman, as indicated by her reasoning
in paragraph 5.8 of the award
from which it appears that she believed that Bosman and Ashwin were
doubtful about whether there
was a further delivery to be made to
Ukhuni.
[14]
In brief, Bosman’s version was that he had been summonsed by
another employee to inspect what was on the truck. He saw
the four
boards which he identified as belonging to Da Vinci. When he
questioned the two employees they had no paperwork for the
four
boards and that is when he decided to fetch the Mitre sales manager
to witness what was loaded on the van. When they returned
the four
boards had been offloaded. It is important to note that he was called
to witness what was on the vehicle after the 60
boards had been
delivered and was not involved in the receipt of the 60 boards, which
had been received by a Da Vinci employee
referred to only as
‘Sunday’. On his version the only reason he went to the
vehicle was because he had been told by
Sunday of the four boards
that had been loaded onto it. However, on the employees’
version, which was never put to Bosman
under cross-examination, he
had personally received and checked the delivery of the 60 boards and
no other Da Vinci employee was
involved. Mr Dlamini who testified
first, claimed that Bosman had queried the other boards on the
vehicle and he had told him that
they were to be delivered to Ukhuni.
Bosman asked him for the invoice which he gave to him and said he was
going to the office
to confirm that. Again, this too was never put to
Bosman under cross-examination. When Bosman returned with Ashwin,
Ashwin asked
him where the four boards were. Mhlongo did not mention
Bosman going to the office at all.
[15]
The versions are mutually exclusive in that the employees insisted
that the four boards identified by Bosman where never on
the van and
that Bosman was the person who received and checked the delivery. The
only thing the versions have in common, at least
if Dlamini’s
version is accepted as more comprehensive than Mhlongo’s is
that, at some point Bosman went to the office
and returned with
Ashwin. Yet, even on his version Ashwin had asked him about the four
boards not about the order for Ukhuni. Before
getting into the
credibility of the respective witnesses, the arbitrator had to
consider the inherent probabilities of the two
versions taking into
account that crucial parts the employee’s version had not been
put to Bosman.
[16]
The upshot of their version was that, Bosman after witnessing them
offloading the delivery for Da Vinci, arbitrarily queried
the boards
remaining on the vehicle and when given the invoice for Ukhuni went
to verify it at the office. If the only boards on
the vehicle were
the five cover boards and the two boards to be delivered to Ukhuni
and if the invoice for Ukhuni corresponded
with the two boards, there
would have been no reason for Bosman to have laid a complaint against
them, except some undisclosed
malicious motive. Their version also
should have been evaluated taking account of the fact that they never
confronted Bosman under
cross-examination with their claim that he
was present and witnessed the offloading of the order for Da Vinci
and that he had said
he was going to the office to check the invoice
for Ukhuni. Their version in those respects ought to have been
ignored because
they never tested it with him.
[17]
Moreover, the arbitrator failed to consider the inherent plausibility
of Bosman’s version that he had been summoned to
see for
himself what was on the vehicle by another employee who was working
in the receiving section and that ordinarily there
would be no reason
why Bosman himself would personally be receiving deliveries at the
factory. In other words, barring a most elaborate
ruse, it inherently
more likely that Bosman was called to inspect what the van was
carrying because there was cause for concern.
There was also no
reason for him to doubt the invoice for Ukhuni if it corresponded
with what was on the vehicle. Bosman never
disputed that there was an
invoice for two boards to be delivered to Ukhuni. It was the
employees’ inability to explain the
four boards which did not
form part of stock supplied by Mitre which caused him to return to
the office to fetch Mitre’s
sales manager.
[18]
No motive was suggested by the employees as to why Da Vinci would
dream up this elaborate scenario and dismiss two of its own
employees
as part of the conspiracy. It is true that if Mitre had not taken any
action that might have soured the relationship
between Da Vinci and
Mitre, but it does not follow that the complaint was trumped up in
the absence of any evidence of a motive
on the part of Da Vinci for
doing so.
[19]
The arbitrator’s own evaluation of the evidence is patchy and
shows that she failed to deal with the direct evidence
of Bosman as
to what he saw and weigh that up against all the other evidence. She
also appears to have misconstrued what was common
cause, namely that
there were cover boards on the vehicle and there were two other
boards on the van destined for Ukhuni. Had she
evaluated all this
evidence, without misconstruing Bosman’s evidence and what was
common cause and discounting parts of the
employee’s version
which had not been tested with Bosman, she would have been compelled
to conclude on a balance of probabilities
that the employees were
guilty of attempted theft of the four boards.
[20]
Given the nature of the misconduct, it stands to reason that an
employee found guilty of attempted theft has broken the trust
relationship with the employer and in the absence of any evidence to
the contrary, it is unlikely to be restored.
Order
[1]
The arbitration award dated 24 June 2014 issued by the second
respondent under case number
GAJB17708-13 is reviewed and set
aside.
[2]
Paragraph 6 of the award is substituted with a finding that the
dismissal of the applicant,
Mr A Dlamini, was substantively fair.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
B
L Roode instructed by Deon
de
Bruyn Attorneys
RESPONDENT:
S
Luthuli of Inqubelaphambili
Trade
Union or