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[2018] ZALCCT 42
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Rainbow Farms (Pty) Ltd v NUFWBSAW obo Jordaan and Others (C667/2016) [2018] ZALCCT 42 (5 December 2018)
IN THE LABOUR COURT
OF SOUTH AFRICA
(CAPE
TOWN)
CASE
NUMBER
: C667/2016
DATE
: 5 DECEMBER 2018
In
the matter between:
RAINBOW
FARMS (PTY) LTD
Applicant
And
NUFWBSAW
obo E JORDAAN
First respondent
CCMA
Second respondent
Commissioner
I DE VLIEGER-SEYNHAVE
Third
respondent
JUDGMENT
STEENKAMP,
J
:
This
is an application to have an arbitration award by Commissioner De
Vlieger-Seynaeve of the CCMA reviewed and set aside. It arises
from
the dismissal of Mr E Jordaan who was a maintenance fitter at Rainbow
Farms (Pty) Limited. He was dismissed because he had
incorrectly
filled out his attendance register on two occasions, on the 19
th
and the 29
th
September 2012. Because of that he was charged with dishonesty. The
charges read as follows:
1.
“
You are hereby charged for alleged
dishonesty in that it is alleged that you recorded your clocking time
in excess of the actual
reported clocking as per payroll for the
period of 19 September 2012; and
2.
You are charged for alleged dishonesty in
that it is alleged that you recorded your clocking times in excess of
the actual reported
clocking as per payroll for the period of 29
September 2012.”
Before
dealing with the two specific incidents it is important to note the
ways in which working hours were or are recorded in Worcester
at
Rainbow Farms. It is common cause that there is an electronic system
called
Blick
as well as the manual attendance register. Mr
Geldenhuys
submitted that in her reward the arbitrator did not sufficiently
distinguish between these two ways of clocking and more specifically
the use of the physical attendance register in the maintenance
department where Mr Jordaan worked. He referred in that regard to
the
evidence as reconstructed and specifically the following extract
where Mr Jordaan says:
“
Die
daily attendance
Steve
[Le Roux] gebruik dit. Hy werk net volgens daai papier. Rainbow
prosedure sê hulle werk met Blick
.”
It
is then put to him:
“
Dit
word gebruik as kontrole dokument
.
Presies
.”
And
he responds:
“
As
backup.”
In
that regard the arbitrator notes that it is common cause that the
times were wrongly recorded on the 19
th
and 29
th
September 2012. She then says:
“
However,
a distinction must be made as to whether this document, referring to
the attendance register, is the original document
which is used to
base the payment of the salary on or if this document is used as a
control document. Through all the evidence
that was submitted it was
confirmed that the Blick system which records the time when an
employee is at a door is used to record
the attendance and to
calculate the salary. The attendance register on the other hand is
still used by certain supervisors to double-check
the attendance and
is also used when the Blick system is not working. If someone
therefore wishes to claim extra hours for which
he had not worked it
will be extremely difficult to do so via the attendance register.”
That
conclusion is entirely reasonable in the light of the evidence before
the arbitrator of which the portion that I have just
quoted forms one
part. The Court has also had regard to the full transcript of the
evidence at arbitration. It must also be noted
that it is common
cause that the Blick system was working on the 19
th
and the 29
th
September and that no extra overtime was paid to Mr Jordaan. This
conclusion of the arbitrator as I have said is reasonable and
is not
open to review.
I
then turn more specifically to the two incidents. As far as the 19
th
September is concerned the employee recorded on the 19
th
“skool toe 08:00 tot 10:15”. However, what is in specific
contention is that it appears from the face of the document
that the
hours worked were changed from 9 ½ to 11 ½. The
allegation was that it was Mr Jordaan who changed it. The
onus, as
the arbitrator quite correctly points out, is on the employer to
prove that. Given that there were two conflicting versions
and no
direct evidence, it is correct, as Mr
Le
Roux
pointed out, that an inference had
to be drawn. He referred in this regard to
FAWU
v Amalgamate Beverages Industries Limited
1994 (15)
ILJ
1057 (LAC) where the Labour Appeal Court held:
“
It
is a cardinal rule of logic when reasoning by inference that the
inference sought to be drawn must be consistent with all the
proved
facts.”
It
is in the light of that and the jurisprudence of this Court that the
arbitrator had to consider whether the only probable inference
was
that it was indeed Jordaan that changed the hours. She firstly
considered his evidence that he switched the times on 18 and
19
September, which she accepted, does make sense. With regard to the
specific change from 9 ½ to 11 ½ hours she
correctly
points out that it remained a mystery even after having heard the
evidence before her. She noted that even though it
was changed there
were no changes made to the overtime claimed. She had regard to the
fact that Mr Jordaan claimed that he had
not made the change,
otherwise he would have changed his overtime as well. That appears to
me to be a reasonable way of dealing
with the evidence before her and
the probabilities.
She
also noted again that the salary is calculated based on the Blick
system and that changing times in the attendance register
would most
likely not reflect into an overpayment. She also took into account
that it was common cause that the Blick system did
work on that day
so there was no chance that Mr Jordaan would be overpaid. Having
taken all those factors into account she found
that the employer had
not discharged the onus of proving that the employee was dishonest
with his time recordal on 19 September
2012. Whether this Court would
have made the same finding based on the inferences and the
probabilities is neither here nor there;
this is a review, not an
appeal.
The
test as set out in S
idumo v Rustenburg
Platinum Mines Limited
2007 (28)
ILJ
2405 (CC);
2008 (2) SA 24
(CC) is well-known. The question is whether
the conclusion reached by the arbitrator is so unreasonable that no
other arbitrator
could have come to the same conclusion. That is not
the case here. Another arbitrator could have come to the same
conclusion, even
if this Court may not have come to the same
conclusion. The conclusion in that regard is not reviewable.
That
brings me to the 29
th
September. In that case, where the time worked on the Saturday was
recorded as 8 hours, the arbitrator accepted Mr Jordaan’s
evidence that he had made a mistake. The fact that Jordaan actually
corrected the 8 hours on the following Monday to reflect it
as 5
hours is consistent with that evidence, i.e. that he had made a
mistake but that he corrected it subsequently. The arbitrator
also
quite reasonably took into account that in distinction to the common
practice that weekends are shaded out that was not the
case with
Saturday the 29
th
September.
The
evidence of Mr Jordaan that he was extremely tired at the time is
accepted or unchallenged, and it is also consistent with the
actual
times worked -- sometimes during that week to 02:30; 02:45 and even
four o’clock in the morning. The arbitrator accepted
in the
light of all this evidence that it was possible that the employee did
make a mistake and she accepted his evidence in that
regard. Again,
given that this is a review and not an appeal, that is a conclusion
that another arbitrator could have reached;
and whether or not this
Court may have reached the same conclusion is neither here nor there.
It is not a reviewable finding.
Lastly,
the arbitrator took into account the inconsistency between the
treatment of Mr Kearns and Mr Jordaan. It is common cause
that it was
found that Mr Jordaan had been dishonest in incorrectly reflecting
his times but that there was no allegation that
Kearns had been
dishonest, even though he had also incorrectly reflected times where
he claimed to have taken two tea times and
that he did not tick the
box that clearly appears on the attendance register where he could
simply tick the box “no lunch”.
The arbitrator’s
finding that there was inconsistent treatment between Messrs Kearns
and Jordaan is within a band of reasonable
findings that another
arbitrator could reach.
Lastly,
Mr
Geldenhuys
submitted that, despite all of this, the arbitrator should not have
ordered reinstatement. As he correctly pointed out, the question
of
relief is dealt with in section 193 of the LRA. It is trite that the
default position is reinstatement, as reiterated by the
Constitutional Court in
Equity
Aviation
[1]
.
In this case the exclusions that the section provides for, for
example that the dismissal was only procedurally unfair, or that
it
is not reasonably practicable to reinstate, do not apply. There was
no evidence that it would not be reasonably practicable
to reinstate
Mr Jordaan in a big company such as Rainbow Farms. The fact that
there is no love lost between Mr Jordaan and Mr Le
Roux is not
something that makes it not reasonably practicable to reinstate him.
In all of these circumstances the award is not
open to review.
That
leaves the issues of costs. Both parties asked for costs to follow
the result. I see no reason in law or fairness to disagree.
The
purpose of the Act is expedited dispute resolution. Arbitration
awards are meant to be final and binding. This is a matter
that
should have ended at arbitration. There is no reason why Mr Jordaan
or his trade union should be saddled with the costs of
this
application.
THE
APPLICATION FOR REVIEW IS DISMISSED WITH COSTS.
___________________________
STEENKAMP,
J
APPEARANCES
APPLICANT:
Elco
Geldenhuys of MacGregor Erasmus.
FIRST
RESPONDENT:
Dawie le Roux of Murray
Fourie & Le Roux Inc.
[1]
Equity
Aviation Services (Pty) Ltd v CCMA
[2008] ZACC 16
;
[2008] 12 BLLR 1129
(CC);
2009 (1) SA 390
(CC); (2008) 29
ILJ
2507 (CC);
2009 (2) BCLR 111
(CC).