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[2018] ZALCPE 7
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Vumendlini v Afri Operations Ltd and Others (PR224/14) [2018] ZALCPE 7 (19 January 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PR 224/14
In
the matter between:
MTHANDEKI
PETRUS VUMENDLINI
Applicant
and
AFRI
OPERATIONS LTD
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
COMMISSIONER
MARTINUS VAN AARDE
Third Respondent
Heard:
1 December 2016
Delivered:
19 January 2018
Summary:
An application for review may not succeed when the applicant has
failed to prove that the arbitration
award which is the subject of
the review falls outside the bounds of reasonableness.
JUDGMENT
LALLIE J
[1]
The applicant seeks an order reviewing and setting aside an
arbitration award of the third respondent who will be referred to
as
the commissioner in this judgment. The application is opposed by the
first respondent. The facts which gave rise to this application
are
that the applicant was employed by the first respondent as a grain
grader at its Earam silo in Harrismith where it sells large
quantities of grain. The first respondent suffered stock loss and
took a decision to investigate its cause. The investigation revealed
that on 31 January 2014, a truck which left the Harrismith silo (the
silo) with a full load had not been accounted for. The applicant
was
subsequently charged for allowing a vehicle to load yellow maize and
leave the silo without documentation resulting in financial
loss of
about R96 000 to the first respondent. A disciplinary enquiry was
held in the absence of the applicant. He was found guilty
and
dismissed. He referred an unfair dismissal dispute to the second
respondent (the CCMA) where the commissioner found his dismissal
procedurally unfair but substantively fair. The first respondent was
ordered to pay the applicant compensation for the procedural
unfairness of his dismissal. In this application, the applicant seeks
an order reviewing and setting aside the commissioner’s
decision on the substantive fairness of his dismissal.
[2]
The commissioner’s reasons for finding the applicant’s
dismissal substantively fair are that the applicant acknowledged
that
he accepted a truck/vehicle on 31 January 2014 at about 12h46. He
issued a loading instruction to a vehicle with registration
number
FTM 387 FS to the silo operator before trying to capture the
transaction on the system. He immediately cancelled the loading
instruction/dispatch letter when he noticed some irregularities with
the truck/driver. The irregularities the applicant referred
to
include the absence of the client making the request for maize to be
loaded in terms of the governing policy. The commissioner
rejected
the applicant’s version because it was clear from the video
footage/photos that the truck in question did not have
any number
plates/registration at all. The commissioner found that as the
applicant was in charge of the silo in the absence of
its manager, he
simply failed to take the necessary care to protect the employer’s
interest. He found that the gravity of
the misconduct the applicant
committed justified dismissal.
[3]
The applicant submitted that the award is defective, irregular and
reviewable because the commissioner committed a number of
errors
which include finding that evidence did not support the applicant’s
version. Further errors are that the commissioner
found that the
applicant cancelled the instruction later instead of immediately. He
rejected his version. He failed to apply his
mind to the facts
presented in his defence. His decision is not supported by evidence.
He also erred in finding that the applicant
failed to take the
necessary care to protect the first respondent’s interests. The
decision that the applicant’s dismissal
was substantively fair
is contrary to the commissioner’s finding of gross negligence
as opposed to the dishonesty with which
the applicant was charged.
The first respondent submitted that the grounds the applicant sought
to rely on had no substance and
expressed the view that the
arbitration award is correct and reasonable.
[4]
This court will review and set aside an arbitration award in terms of
section 145 of the Labour Relations Act
[1]
when the commissioner has misconceived the enquiry before him or her,
alternatively, when the commissioner has reached an unreasonable
decision.
[2]
It is not the
applicant’s case that the commissioner misconceived the enquiry
before him. The applicant sought to rely on
a number of errors which
in his view, the commissioner committed during the conduct of the
arbitration. Commission of errors by
a commissioner during the
conduct of an arbitration is not sufficient to render an award
reviewable. The error must lead the commissioner
to reach an
unreasonable decision.
[3]
In
determining the reasonableness of the award, the reviewing court has
to consider the totality of the evidence before the commissioner
and
not adopt a piecemeal approach.
[4]
.
Evidence has to be considered “in the round”.
[5]
[5]
The commissioner complied with section 138 of the LRA in that he
conducted the arbitration fairly and provided reasons for his
decision. The applicant’s allegation that the commissioner did
not apply his mind and failed to consider evidence in his
defence is
factually incorrect. In his award, the commissioner considered the
applicant’s version and gave substantial reasons
for rejecting
it. The applicant’s attack on the award based on the submission
that the commissioner erred in finding him
guilty of gross negligence
instead of the dishonesty he was charged with is unsustainable. The
commissioner expressed the view
that the applicant tried to
manipulate the records/system in a dishonest manner. In addition to
analysing the evidence before him
and making a finding that the
applicant had been dishonest, the commissioner considered the
argument on behalf of the applicant
that the applicant acted in a
negligent manner and/or committed dereliction of duty. In dealing
with the argument, the commissioner
expressly confirmed his finding
of dishonesty by stating that even if he was wrong in finding the
applicant’s conduct dishonest.
He analysed the argument and
facts on which it was based in detail and concluded that the gravity
of the applicant’s conduct
exceeded negligence or dereliction
of duty.
[6]
When the evidence before the commissioner is considered in its
totality it proves that on a day the applicant was in charge
of the
silo, in the absence of the silo manager, the applicant issued a
loading instruction, without a request from a client. He
handed the
loading instruction to a driver of a truck with no registration
number plates. He, however, recorded a registration
number. On his
version, the applicant had realised that there were irregularities
and cancelled the loading instruction from the
system but did not
demand the loading instruction from the driver of the
suspicious-looking vehicle. He neither instructed the
loaders not to
load maize to the value of R92 000 on the truck nor ensure that the
truck was not loaded. He took his lunch break
and left the first
respondent’s premises. The totality of the evidence supports
the commissioner’s decision that the
applicant acted
dishonestly and that the sanction of dismissal was appropriate in the
circumstances. The award therefore falls
within bounds of
reasonableness.
[7]
In the premises, the following order is made:
Order
1.
The
application is dismissed.
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES
:
FOR THE APPLICANT:
Mr Khang of NMphafi & Khang Inc
FOR THE FIRST
RESPONDENT:
Ms Grundlingh of Grundlingh Attorneys
[1]
66 of 1995 (the LRA)
[2]
Heroldt v Nedbank SA (Pty) Ltd
(Congress of SA Trade Unions as Amicus curiae
)
2013 (6) SA 224
(SCA)
[2]
[3]
Head of the
Department of Education v Mofokeng and Others
[2015]
1 BLLR 50
(LAC
).
[4]
Gold Fields Mining SA (Pty) Ltd
(Kloof Gold Mine) v CCMA and Others
[2014]
1 BLLR 20 (LAC).
[5]
Nedbank