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[2018] ZALCJHB 402
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Rinsa (Pty) Ltd t/a Ultra City Middleburg v National Union of Metalworkers of South Africa and Others (JR545/15) [2018] ZALCJHB 402 (5 December 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR545/15
In
the matter between
:
RINSA
(PTY) LTD t/a ULTRA CITY MIDDLEBURG Applicant
and
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA
First
Respondent
GIFT
MSIZA
Second
Respondent
STEPHEN
SHEMA MOLAPO
N.O
Third
Respondent
DISPUTE
RESOLUTION
CENTRE Fourth
respondent
Heard:
31 October 2018
Delivered:
05 December 2018
Summary:
Review application – employer’s decision to offer a plea
deal must not be motivated by bad faith.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
The
applicant, Rinsa (Pty) Ltd t/a Ultra City Middleburg (Rinsa), seeks
an order reviewing and setting aside the arbitration award
issued by
the third respondent (arbitrator) under case number MP18820, dated 30
January 2015. In the award, the commissioner found
that the dismissal
of second respondent, Mr Gift Msiza (Mr Msiza), a member of the first
respondent, National Union of Metalworkers
of South Africa (NUMSA),
was substantively unfair and ordered his reinstatement.
[2]
Rinsa’s
main impugn is that the commissioner patently misconceived the nature
of the enquiry and rendered an unreasonable
arbitration award. NUMSA
opposes the review application.
Review
test
[3]
The review
test is encapsulated in
Head
of the Department of Education v Mofokeng
,
[1]
and the following passages are relevant:
‘
[30]
The failure by an arbitrator to apply his or her mind to issue which
are material to the determination of a case will usually
be an
irregularity. However, the [SCA] in
Herholdt
… and this court in
Gold Fields
… have held that before such an irregularity will result in
the setting aside of the award, it must in addition reveal a
misconception of the true enquiry or result in the setting aside of
the award. It must in addition reveal a misconception of the
true
enquiry or result in an unreasonable outcome…
[31]
… Moreover, judges of the Labour Court should keep in mind
that it is not only the reasonableness of the outcome which
is
subject to scrutiny. As the SCA held in
Herholdt
,
the arbitrator must not
misconceive the inquiry or undertake the inquiry in a misconceived
manner. There must be a fair trial
of the issues
.’
(Emphasis
added)
Pertinent
facts and evaluation
[4]
Mr Msiza
was employed by Rinsa as a petrol attendant. He was charged and
dismissed for misconduct relating to involvement in a fraudulent
transaction which occurred on 20 September 2014. Mr Msiza was
implicated by Ms Mnguni, a fellow petrol attendant, as being part
of
the fraudulent transaction.
[5]
On the day
in question, there was a taxi and a truck that filled diesel from
pump 15 in one continuous transaction and were assisted
by Ms Mnguni.
The taxi driver paid in cash for the diesel but the whole transaction
was charged on the truck drivers bank card
belonging to the truck
owner. Ms Mnguni testified that the cash that she received from the
taxi driver was shared between Mr Msiza,
the truck driver and
herself. The evidence of a video footage showed Mr Msiza assisting Ms
Mnguni to pour diesel into the truck.
[6]
Mr
Froneman, Rinsa’s director, testified that he confronted both
Mr Msiza and Ms Mnguni about the incident. Ms Mnguni readily
admitted
her involvement but the applicant denied his part in the fraudulent
transaction. Mr Msiza testified that he was just assisting
Ms Mnguni
and that there was nothing sinister as petrol attendants do assist
each other, a fact conceded by Mr Froneman.
[7]
Ms Mnguni,
on the other hand, testified that she had planned the fraudulent
transaction with Mr Msiza. She was not dismissed solely
because she
had agreed to testify against Mr Msiza even though fraud is a
dismissible offence in terms of Rinsa’s disciplinary
code. In
fact, Rinsa’s representative categorically put it to Mr Msiza
in his cross examination that:
‘
We
knew that this case is going to land up in an arbitration and we knew
that you are involved in underhanded issues and therefore
she [Ms
Mnguni] was given… What would you call it? Call it amnesty if
you want. That is the reason why she was not dismissed.
Because if we
had come to this arbitration and we did not have her evidence we
would not be able to win this case.’
[2]
[8]
In
MEC:
Department of Health, ECP v PHSDSBC and Others,
[3]
this Court
endorsed
the concept of plea bargaining in the labour law context and held
that it
does
not constitute inconsistent application of discipline. However, the
Court was emphatic that the exercise of that discretion
should not be
informed by
mala
fides
and hinted that the decision to offer a plea deal were not fairly
exercised would include:
[4]
(a)
that the
evidence the witness gave was not reasonably necessary to secure a
guilty finding against the accused employees, including
because such
evidence was readily available from other sources;
(b)
an
imbalance in the relative degree of culpability of the witness and
the accused employees, such that the proverbial 'big fish'
was used
to secure a guilty finding against the 'little fish';
(c)
that the
decision to conclude a plea agreement was induced by an improper
motive such as obvious favouritism or capriciousness;
and/or
(d)
unfair
racial, gender or other discrimination in favour of the accomplice
witness or against the remaining accused employees.
[9]
In the
present case, there is a glaring imbalance in the comparative degree
of blameworthiness of Ms Mnguni, a 'big fish', and Mr
Msiza, a
'little fish'. The commissioner was, accordingly, on point in
treating Ms Mnguni’s evidence with caution.
[10]
Ms Mnguni
also testified that all her colleagues were involved in fraudulent
activities and her evidence in this regard went as
follows:
‘
And
then while I was trying to filling up the truck with the pump this
side then Gift [Mr Msiza] came approaching. That was not
a problem
because it was how we worked there. We are looking at each other. If
Gift maybe he has got a plan, if someone will go
there he will assist
him so that they can share the money. Like if maybe there is a need
for a receipt of R2000.00 and I do not
have it I will go to Gift
before I go to the console and “Gift do you have …a
receipt of diesel”. The he is
saying no and then I go someone
else. And the he will say no… Or someone else has got
it…receipt then I will give
the customer and then the customer
would give me my share and I would share with that person. It is how
we are working. We are
looking after each other.’
[5]
[11]
When teased
about this in cross examination, Ms Mnguni refused to divulge the
names of the other employees involved in fraudulent
transactions
because they were not caught. Strangely, she is the one who
implicated Mr Msiza but refused to assist Rinsa to deal
with other
fraudsters. The commissioner correctly found that Rinsa’s case
was solely hinged on Ms Mnguni’s evidence
as the video footage
did not show Mr Msiza participating in the fraudulent transaction.
Conversely, Ms Mnguni conceded in cross
examination that she is the
one who initiated and executed the fraudulent transaction. To the
extent that Mr Msiza was seen assisting
her, it would seem that it
was common practice that petrol attendants would assist each other.
[12]
The
commissioner’s credibility finding against Ms Mnguni cannot be
faltered. Ms Mnguni failed to open up to her employer and
the
arbitration on the identity of other employees involved in fraudulent
transactions. Her confession was clearly self-serving.
[13]
On the
issue of relief, there is no merit in Rinsa’s assertion that
reinstatement was not be appropriate because it no longer
trusts Mr
Msiza. Rinsa pardoned Ms Mnguni, a self-confessed ‘big fish’
fraudster, who implicated all its employees
in fraudulent activities.
Conclusion
[14]
In all the
circumstances, I am conceived that the award falls within the band of
reasonable outcomes and must stand. Parties did
not pursue costs and
I will not labour on this issue.
[15]
In the
premises, I make the following order:
Order
1.
The review
application is dismissed.
2.
There is no
order as to costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Ms S Lancaster
From: Lancaster
Kungoane Attorneys
For
the first respondent:
Mr Nkhangweni Masutha, NUMSA Official A
[1]
[2015] 1 BLLR 50
(LAC); see also
Herholdt v Nedbank Ltd
(Congress of South African Trade Unions as amicus curia)
[2013] 11 BLLR 1074
(SCA) and
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).
[2]
Transcript, p 96 lines 1-6.
[3]
[2016] ZALCPE 9;
[2016] 6 BLLR 621
(LC); (2016) 37 ILJ 1429 (LC) at paras 38 to 42.
[4]
Supra
at
para 41.
[5]
Transcript p 38 lines 18 -25 and p 39
lines 1-3.