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[2018] ZALCCT 28
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Unitrans Supply Chain Solutions (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) and Others (C89/2017) [2018] ZALCCT 28; (2018) 39 ILJ 2573 (LC) (15 August 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Case
no: C89/2017
In
the matter between:
UNITRANS
SUPPLY CHAIN SOLUTIONS (PTY) LTD
Applicant
and
THE
NATIONAL BARGAINING COUNCIL FOR THE ROAD FREIGHT AND LOGISTICS
INDUSTRY (NBCRFLI)
First
Respondent
COMMISSIONER
C M BENNETT (
NO
)
Second
Respondent
IVAN
JURIES
Third
Respondent
Heard
:
8 August 2018
Delivered
:
15 August 2018
Summary:
(Review – misdirections leading to irrationality.)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an opposed review application of an award in which the
arbitrator found that the third respondent, Mr I Juries
(‘Juries’), was dismissed by the applicant (‘Unitrans’)
unfairly because he did not deliberately falsify
payroll
information which caused a shop steward to receive remuneration he
was not entitled to. The arbitrator found at worst
that Juries did
not carry out his duties as he should have and that Unitrans should
have treated the matter as a case of poor performance
rather than
misconduct involving dishonesty. He also found that reinstatement was
an appropriate remedy.
[2]
I do not intend to summarise the evidence before the arbitrator or
his award. They form part of the record.
[3]
Unitrans essentially raised five grounds of review, some of which
bear more serious consideration than others. In summary, the
grounds
of review are:
3.1 The arbitrator committed a
material misdirection deciding that negligently providing information
which resulted in an overpayment
on more than one occasion to a shop
steward, Mr G Coetzee (‘Coetzee’), did not warrant
dismissal because the company
had considered and offered Juries
demotion from his position as a contract supervisor, as an
alternative to dismissal. The applicant
claims that the arbitrator
failed to appreciate that the proposed demotion was only acceptable
as an alternative because Juries
would not have been engaged in a
position which entailed the same degree of trust or responsibility as
a contract supervisor.
3.2 In a related ground of review, the
Unitrans contends that the arbitrator misdirected himself in deciding
that it should have
subjected Juries to further training in
circumstances where he had never raised a lack of proper training for
personal incapacity
as a reason for providing the incorrect
information which resulted in the overpayments. Moreover, Juries had
been performing the
duties of a contract supervisor for three and a
half years. Further, Juries had not acknowledged or admitted making
errors but
had initially claimed that the shop steward was entitled
to the payments. In addition, the evidence showed that Juries was
fully
familiar with the biometric clocking system and that it was
supposed to be used, but he placed little reliance on it. This was
not evidence of lack of training or expertise on Juries’ part,
but an unwillingness to use the system. There was no evidentiary
basis to conclude that, what he lacked was sufficient training.
3.3 The arbitrator had concluded that
because the overpayments were only discovered after investigating
whether the recipient of
the payments was engaged in conducting a
private business, it could not be inferred that the overpayments were
a result of intentional
misrepresentation on the part of the
employee, because if the investigation had been wider it might have
revealed that other misrepresentations
about hours worked by other
employees had been made, which would indicate that it was not
intentional.
3.4 Unitrans contends that in the
light of the evidence that Juries knew that the shop steward was
leaving work early in order to
collect his son from school, it is
inconceivable that he believed he was entitled to be paid for those
hours. Further, there was
no documentary evidence to support the
employee’s claim that the shop steward was indeed engaged in
legitimate union activity
for which he was entitled to be paid, and
Juries had conceded that such supporting documentation was required.
Moreover, the applicant
claims that the Juries’ justification
for authorising payment of the shop steward was inconsistent and
changed during the
course of the hearing. Further, Juries had
contended that he had only relied on trip/time sheets to calculate
the hours owed to
the shop steward without considering biometric
clocking records as he was required to, yet there were instances
where the shop
steward received payment even when those limited
records showed he was not at work, such as one occasion when the
timesheet showed
Coetzee was at work for an hour, but Juries credited
him with 9 hours at work. In the circumstances, had the arbitrator
taken this
into account, he could not have reasonably concluded that
Juries’ conduct was not intentional.
3.5 Coetzee appears not have been
charged with misconduct relating to the improper payment he received
and the arbitrator concluded
that this meant either that no
overpayment occurred or that Unitrans did not regard it as
sufficiently serious to warrant
action being taken against him.
Unitrans contends that it was improper of the arbitrator to have
regard to this when it was not
something that Juries made an issue of
in the arbitration and the arbitrator did not even ask it to address
him on this issue.
Evaluation
[4]
In relation to the first ground
of review, I agree with the applicant that, taken to its logical
conclusion, it would mean that
no employer who offered an employee
demotion as an alternative to dismissal would be allowed to defend
the subsequent dismissal
if the employee refused that alternative.
That is an untenable proposition. Because an employer cannot
contemplate retaining a
person in a certain position because of the
risks that would pose by them continuing to perform that function, it
does not mean
that it might not reasonably willing to retain
them in a post where those risks do not exist, or are minimal.
Likewise, if
they cannot place them in that alternative post, it does
not mean retaining them in their existing one becomes any more
feasible.
The arbitrator’s logic is fundamentally flawed
in seeing the offer of demotion as necessarily meaning that Juries’
dismissal from his post as contract supervisor was not justified.
See also
Public
Servants Association of South Africa obo Ntsime v Education Labour
Relations Council and Others
.
[1]
[5]
As to whether the arbitrator misdirected himself in deciding that
Juries conduct should have been handled as a performance matter,
there are two fundamental problems with that approach. The first is
that, an arbitrator deciding the fairness of a dismissal must
assess
the fairness thereof in relation to the reason given by the employer.
If the employer cannot justify the dismissal on that
basis, it will
fail. What an arbitrator should be very wary of is to consider
whether the employer ought to have dealt with the
employee’s
conduct on a completely different basis and then evaluate the
fairness of the dismissal with reference to the
test applicable to
that type of dismissal, when that was not the reason advanced by the
employer for the dismissal. If the arbitrator
is satisfied
incompetence rather than misconduct was the explanation for the
employee’ behaviour, then the employer will
not succeed in
justifying the fairness of the dismissal based on misconduct.
Secondly, in a case of misconduct when the employee
does not raise
incapacity of some kind as a defence, it is improper of an arbitrator
to make findings on this basis when the employee
themselves had not
raised it. That is tantamount to making out a case for a party and
gives rise to an inference of possible bias
on the part of the
arbitrator, apart from meaning that the arbitrator embarked on an
enquiry they were not supposed to. Accordingly,
the award must be
sustainable once all the arbitrator’s inferences and findings
based on this misdirection have been removed
from consideration. In
this instance, the main effect seems to have been that, it led the
arbitrator to take his ‘eye off
the ball’ so to speak,
and to focus on a defence for Juries’ of his own making,
instead of dispassionately assessing
the probabilities whether
Juries’ conduct most probably reflected negligence rather than
wilful misrepresentation of Coetzee’s
hours worked.
[6]
I agree that the arbitrator’s reasoning in concluding that
there might have been other ‘errors’ made in respect
of
hours credited to other staff by Juries, which simply weren’t
discovered because they were not investigated is highly
speculative
and irrelevant. It should have played no part in his reasoning.
However, I am not sure ultimately, it is a decisive
factor in the
arbitrator’s chain of reasoning. However, it also raises a
concern that if Juries intended to raise a defence
of incompetence or
lack of training, then it was for him to raise examples of other
‘errors’ he claimed to have made.
It was not for the
arbitrator to speculate about the outcome of a potential defence that
was never even advanced at the arbitration.
[7]
The fourth ground is perhaps the most telling. There simply was
insufficient evidence for the arbitrator to reach the conclusion
that
the overpayments were merely a result of negligence on Juries’
part, when there was significant evidence that cried
out for a
coherent explanation from Juries as to how it could simply have been
an error rather than deliberate. Thus, while the
arbitrator was
willing to speculate about errors that might have been made, the
arbitrator did not consider evidence of ‘errors’
made in
Coetzee’s favour, for which no explanation was provided, for
example when he was credited for being on union training
when he was
rostered to be on night shift and there was no supporting
documentation as evidence of any union training program.
It is here
that the arbitrator’s reasoning reveals itself as most wanting
because it goes to the heart of his decision that
intent on Juries’
part was absent. By construing the issue as being one of incapacity,
the arbitrator was able to skirt the
obvious deficiencies in Juries’
defence that his conduct was not intentional.
[8]
In relation to the fifth ground, it is true yet again that an issue
not raised by Juries was given some weight by the arbitrator,
though
it is difficult to see how significant this was in arriving at his
conclusions and whether it had a decisive distorting
effect on
his reasoning.
[9]
In conclusion, I am satisfied that the review should succeed on the
basis of the first, second and fourth grounds of review.
I am also
persuaded that the grounds identified showed that the arbitrator
adopted lines of reasoning which, at the very least,
distracted him
from the issues he had to determine and at worst led him to reach
conclusions which could not be justified on the
evidence. In
particular, these led him to find Juries not guilty of intentionally
misrepresenting the hours worked by Coetzee resulting
in him being
overpaid and in failing to appreciate the seriousness of retaining
Juries in the position of trust he occupied. In
relation to the
latter issue, it should be mentioned that at the arbitration, Juries
did not advance the argument that the alternative
position he was
offered entailed as much responsibility as his previous one and
therefore did not indicate a lack of trust on the
part of the
employer about his honesty.
[10]
Had the arbitrator not misdirected himself, I am persuaded he would
have been compelled to conclude that Juries dismissal for
misconduct
was substantively fair.
Order
[1]
The arbitration award issued on 11 January 2017 by the Second
Respondent under case number WCRFBC 40744 is reviewed and set
aside.
[2]
The Second Respondent’s effective finding that the Third
Respondent was not guilty of misconduct in the form of deliberately
supplying false information in that, during the period 1 August 2015
to 31 January 2016 he submitted hours for Gert Coetzee to
receive
payment, for which the latter was not entitled, is replaced with a
finding that he was guilty of that misconduct and dismissal
was an
appropriate sanction in the circumstances.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
N
Preston of Cliffe Dekker Hofmeyr Inc.
THIRD
RESPONDENT:
In
person
[1]
(JR2452/10) [2014] ZALCJHB 119 (3 April 2014) at para [33] in which
the alternative of demotion was construed as a benefit offered
to
the employee.