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[2018] ZALCJHB 192
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G4S Cash Services SA (Pty) Ltd v NBCRFLI and Others (JR806/13, J2033/14) [2018] ZALCJHB 192 (1 June 2018)
REPUBLIC
OF SOUTH AFRICA
Not reportable
Of interest to other
judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 806/13
J
2033/14
In
the matter between:
G4S
CASH SERVICES SA (PTY) LTD
Applicant
and
NBCRFLI
First Respondent
COMMISSIONER
T NYATHELA
Second Respondent
HENDRY
CHILOANE
Third Respondent
Heard
:
31 May 2018
Delivered
:
1 June 2018
Summary:
Review – LRA s 145 – dismissal for misconduct –
award finding dismissal unfair and reinstating
employee. Award not
reviewable. Application dismissed with costs.
JUDGMENT
STEENKAMP
J
Introduction
[1]
Two
applications were heard simultaneously. Both arise from an
arbitration award by the second respondent, Ms T I Nyathela, a
panellist
of the first respondent, the National Bargaining Council
for the Road Freight and Logistics Industry. She found that the
applicant,
G4S, unfairly dismissed the third respondent, Mr Hendry
Chiloane. She ordered G4S to reinstate the employee. G4S seeks to
have
the award reviewed and set aside in terms of s 145 of the
LRA.
[1]
The employee seeks to
have the award made an order of court in terms of s 158(1)(c). Both
applications were opposed.
[2]
The Bargaining Council could not provide a recording of the
arbitration proceedings. The parties reconstructed the record with
the help of the commissioner and her handwritten notes. The parties
agreed that the reconstructed record was sufficient for the
Court to
decide on the review application.
Background
facts
[3]
Mr Chiloane was employed as a radio controller. The employer’s
main witness, Mr Isak Maartens, described the employee’s
duties
as entailing controlling vehicles that do cash pick-ups by cellphone
or radio. He must give instructions to cash in transit
vehicle
drivers to ensure that pick-ups are done.
[4]
When he was asked why the employee was disciplined, Maartens replied
that “there was an email requesting proof that the
client was
serviced. I [Maartens] went to the manager to report that that the
employee was not giving me proof that he picked up
from the client.”
[5]
The employee was notified to attend a disciplinary hearing to answer
to the following allegations of misconduct:
“
1.
Failing to comply with an instruction from management:
On
2010-12-29 you were issued with an instruction by management to
provide the outstanding receipts for casual services on 2010-12-30.
You failed to do so.
2.
Dereliction of duties:
In November 2010 you were instructed to
ensure that casual services were done as per the spreadsheet provided
and that when the
services were rendered to ensure that the copies of
the receipts were collected from the crews. You failed to adhere to
the instruction.
3.
Negligence:
As the controller you are responsible for the
controlling of operations and to ensure that all services requested
by clients are
done. You failed to do so and this resulted in a lot
of services not rendered.”
[6]
The chairperson of the disciplinary hearing, Mr William Monyela,
found the employee “guilty” on all three “charges”
and he was dismissed with immediate effect. The employee referred an
unfair dismissal dispute to the Bargaining Council.
The
arbitration award
[7]
Only two witnesses testified at arbitration: the employee and Mr
Maartens, the branch security officer for the employer.
[8]
Maartens testified that he had received an email requesting proof
that a customer had been serviced. He instructed the employee
to give
him the receipt for the pick-up. The employee refused and told him to
find it in the box room as it was not his responsibility.
He stated
that “the case against the employee is not about the receipts
but that he failed to ensure that the pick-ups were
done”. As a
result of pick-ups not being done, G4S had lost some R50 000, 00. He
conceded that receipts were kept in the
box room but stated that they
were first given to the controller. The receiving controller was Mike
Majutla.
[9]
The employee testified that he did not give Maartens the receipts as
it was not his responsibility. His responsibility was to
have
telephonic and radio discussions with crew and customers, not to keep
receipts from pick-ups. He conceded that he told Maartens
to go and
find the receipts in the box room.
[10]
The arbitrator started from the premise that the employer bore the
onus to show that the dismissal was fair. She accepted the
employee’s
consistent evidence that it was not his duty to handle receipts and
that they were kept in the box room. She noted
that the employer did
not provide the employee’s job description and that, under
cross examination, Maartens could not deny
that the receipts went
straight to the box room. She concluded that the employer had failed
to prove on a balance of probabilities
that it was the employee’s
responsibility to keep the receipts from pick-ups.
[11]
Regarding the complaint that the employee had missed pick-ups,
leading to a R50 000 loss, the arbitrator noted that the employer
had
not led any evidence to show how it had arrived at that figure. And
it called no witnesses to testify that pick-ups had not
been done.
The employee insisted that he had executed his duties. On a balance
of probabilities, the employer had not proven that
the employee had
failed to inform crew to do pick-ups.
[12]
The arbitrator also found that the employer had acted inconsistently
by not charging the other controller, Mike Matjula.
[13]
The arbitrator was not satisfied that the trust relationship had
broken down. She found that the dismissal was unfair and ordered
G4S
to reinstate the employee retrospectively.
Review
grounds
[14]
Mr
Crafford
raised some seven grounds of review:
14.1
The arbitrator did not consider the oral evidence of the employer’s
witness, Maartens.
14.2
The finding that the employer did not prove the loss of R50 000 was
“incorrect”.
14.3
The arbitrator’s negative inference regarding the failure to
call customers as witnesses was incorrect.
14.4
There was no inconsistency in not charging Mike Matjula.
14.5
The finding on the trust relationship was without adequate reasoning.
14.6
The arbitrator had an unbalanced approach in weighing up the
evidence.
14.7
The arbitrator did not consider the actions of the employer “were
indicative of its adherence to proper procedure
and fairness”.
Evaluation
/ Analysis
[15]
I will deal with each of the review grounds in turn, although Mr
Crafford
focused his oral argument on his contention that the
crux of the matter was that the employee had refused an instruction
to find
the receipts and that that in itself should have justified
his dismissal for insubordination.
[16]
The problem with that submission is that the employer’s sole
witness, Maartens, stated quite clearly that ““the
case
against the employee is not about the receipts but that he failed to
ensure that the pick-ups were done”. And the arbitrator
dealt
with both complaints.
Maartens’s
evidence
[17]
Mr
Crafford
submitted that, in concluding that it was not the
employee’s duty to keep the receipts, the arbitrator “failed
to consider
the oral evidence and the documentary evidence presented
by the applicant [G4S] during the arbitration”. He pointed in
this
regard Maartens’s evidence that the crew handed their
receipts to the controller before they went to the box room.
[18]
But, as the arbitrator records in her award, Maartens did not deny in
cross-examination that the receipts went straight to
the box room.
The arbitrator’s notes reflect this exchange:
“
Q:
You cannot say with certainty that the receipts from pick up do not
go via his [the employee’s] office but straight to
the box
room?
A:
Yes, I cannot deny…”
[19]
The arbitrator pertinently took that into account. Her conclusion on
a balance of probabilities, having considered and weighed
up the two
versions before her, is not so unreasonable that no other arbitrator
could have come to the same conclusion.
R50
000 loss?
[20]
Mr
Crafford
argued that the arbitrator incorrectly found that
the employer had not proven how it arrived at the loss of R50 000.
But Maartens
had testified that 63 customers had been missed. He
added:
“
An
amount is worked out for each pick up. I added amounts together and
arrived at 50 000 approximate – not sure. I cannot
disclose the
amount. I do not have evidence of that.”
[21]
From this exchange it is apparent that the arbitrator’s
conclusion was reasonable. As Maartens conceded, he did not have
evidence of how he had arrived at the amount of R50 000, 00. This
ground of review fails.
Negative
inference: failure to call witnesses
[22]
The arbitrator noted that G4S had not called any of its customers to
testify that pick-ups had not been done. Mr
Crafford
submitted
that the arbitrator incorrectly drew a negative inference from this
failure and that she misunderstood the process regarding
pick-ups.
She did not consider that the customers do not communicate directly
with the controller.
[23]
Although the arbitrator’s finding in this regard is no more
than a passing comment, it was not unreasonable to point
out that the
employer could have called witnesses to testify as to the missed
pick-ups. However, there is nothing in the award
to point to her
drawing a negative inference from this omission. She merely weighed
up the evidence of the employer against that
of the employee and came
to a reasonable conclusion on the balance of probabilities.
Inconsistency
[24]
The arbitrator found that the employer had acted inconsistently by
not charging the other controller, Mr Matjula. Mr Crafford
says in
his heads of argument that “evidence to this effect was never
lead” [
sic
] and that the arbitrator’s finding is
“without merit and irregular”.
[25]
It was common cause that both Messrs Chiloane and Matjula worked in
the control room. Both of them refused to provide receipts.
Yet, when
challenged, Mr Maartens could not say that Matjula had been charged.
Maartens stated that Mike (Matjula) was the relieving
controller and
that he “would not hold him responsible for the control room”.
[26]
The finding that the employer acted inconsistently by charging only
one of the two controllers is not so unreasonable that
no other
arbitrator could have made the same finding.
Trust
relationship
[27]
The employer states that the arbitrator’s opinion that the
parties could continue working together “is without
any
adequate reasoning”. But she does provide her reasoning, albeit
briefly. She found that the employee had not committed
the misconduct
complained of. In those circumstances, there was no good reason why
he should not be afforded the primary remedy
of reinstatement. Her
conclusion is not open to review, as opposed to appeal.
Unbalanced
approach?
[28]
Mr
Crafford
submitted that the arbitrator had an “unbalanced
approach” in weighing up the evidence, in that “certain
findings
regarding material issues are not sustainable and that she
in general failed to grant the employer a fair arbitration”.
[29]
This ground of review is vague and without substance. The parties had
a fair hearing. The review ground is without merit.
Failure
to consider employer’s actions
[30]
The final review ground is that the arbitrator “failed to
consider that the actions of the employer were indicative of
its
adherence to proper procedure and fairness”.
[31]
Again, Mr
Crafford
did not elaborate upon this vague and
unsubstantiated complaint. Procedural fairness was in any event not
in issue. This review
ground has no merit.
Conclusion
[32]
The conclusion reached by the arbitrator is not so unreasonable that
no other arbitrator could have come to the same conclusion
on the
same evidence. The award is not open to review, as opposed to appeal.
[33]
In those circumstances, there is no reason why the arbitration award
should not be made an order of court.
[34]
This Court
must take into account the requirements of the law and fairness when
deciding costs.
[2]
Taking into
account the first requirement, the unsuccessful party should pay the
costs. And in fairness, the employee – who
was dismissed eight
years ago – should be reimbursed for the legal costs he had to
incur to defend an award in his favour.
Order
[35]
I therefore make the following order:
35.1
In case number JR 806/13, the application for review is dismissed.
35.2
In case number J 2033/14, the arbitration award issued under NBCRFLI
case number LPRFBC 18418 dated 26 February
2013 by commissioner T I
Nyathela is made an order of court.
35.3
The applicant in case number JR 806/13 and respondent in case number
J 2033/14 (G4S Cash Services SA (Pty) Ltd)
is ordered to pay the
costs in both applications.
_______________________
Steenkamp
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
C
Crafford (attorney).
THIRD
RESPONDENT:
A
Goldberg (attorney).
[1]
Labour
Relations Act 66 of 1995
.
[2]
LRA
s 162.