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[2018] ZALCD 14
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Vezi v Toyota SA Motors (Pty) Ltd and Others (D955/14) [2018] ZALCD 14 (15 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D955/14
In
the matter between:
CECIL
FANANA
VEZI
Applicant
And
TOYOTA
SA MOTORS (PTY)
LTD
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second
Respondent
NONHLANHLA
DUBUZANE N
O
Third
Respondent
Heard:
6 June 2018
Delivered:
15 August 2018
Summary:
Review
JUDGMENT
GUSH. J
Introduction
[1]
The
applicant in this matter applies to review the arbitration award
handed down by the third respondent on 14 September 2014 in
which the
respondent concluded that the applicant’s dismissal was
substantively fair and dismissed his application.
Background
[2]
The
applicant was initially employed by the first respondent initially as
a production welder on 4 October 1994, and subsequently
as a team
leader. The applicant received a salary at the time of his dismissal
of R13 056-00.
[3]
Following
an incident that occurred on 1 July 2013, in which the applicant was
the driver of a tow motor, the applicant was charged
with misconduct
namely:
3.1
DISHONESTY:
in that you did not give a correct report of the incident when
questioned by management; and
3.2
GROSS
NEGLIGENCE: in that you did not follow company safety procedures
thereby endangering yourself and others and damaging company
property.
[4]
The
incident took place on 1 July 2013, the applicant was subsequently
suspended on 17 July 2013 The disciplinary proceedings commenced
on 9
October 2013 and were completed on 26 November 2013. At the
conclusion of the disciplinary enquiry the chairperson of the
enquiry
found the applicant guilty of misconduct with which he was charged
and imposed a sanction of dismissal.
[5]
The
applicant referred a dispute regarding his dismissal to the second
respondent on 27 January 2014 together with an application
for
condonation for the late referral. On 24 February 2014 the second
respondent condoned the late filing of the referral and conciliated
the dispute. As the dispute was not resolved a certificate of
non-resolution was issued.
[6]
The
applicant then referred the dispute to arbitration and after an
inspection
in
loco
was conducted at the first respondent’s premises on 16 May
2013, the arbitration took place on 20 June 2014 and 25 August
2014.
On 14 September 2014 the third respondent issued the award that is
the subject of this review.
[7]
At
the arbitration and during these proceedings the applicant challenged
only the substantive fairness of his dismissal.
[8]
On
the day of the incident the applicant was driving a “tow motor”
that was pulling three trolleys. The “tow motor”
is a
single seater vehicle designed to pull trolleys containing items for
delivery to the various sections of the factory.
[9]
It
is common cause that the applicant had driven the vehicle on a road
not designated for “tow motors”. In the course
of passing
an area where trucks offloaded their cargo, the third trolley being
pulled by the applicant collided with the left front
of one of the
trucks.
[10]
The
door of the trolley was damaged and the applicant removed the damaged
door place it inside the trolley and completed his deliveries.
The
applicant then returned to the depot where the “tow motors”
are parked.
[11]
Two
employees of the first respondent, one Chabilal: the central store
manager and one Govender: the manager of the central store
operation
and service parts operation, were standing chatting close to the area
where the “tow motors” are parked.
[12]
Having
parked the “tow motor” the applicant approached Chabilal
and Govender. At this point the versions of the applicant
on the one
hand and Chabilal and Govender differ. Chabilal and Govender’s
version is that when asked as to what had happened,
the applicant
simply advised them in response, that the door was weak and had
fallen off. Whereas the applicant maintained that
he had told
Chabilal and Govender about the incident with the truck and why he
had removed the door.
[13]
According
to Chabilal and Govender’s evidence when they saw the damage
they immediately approached the applicant and the “tow
motor”
to ascertain what had happened. Govender’s evidence was that he
had “
walked
around to get a better look at the trolley…”
[1]
.
He
then asked the applicant what had happened and the applicant had
replied that “
the
trolley doors are very weak and the trolley door fell off”.
[2]
He had then instructed Chabilal to investigate further.
[14]
Chabilal’s
evidence was that he had been instructed by Govender “
to
go with [the applicant] to the place of the incident.”
Chabilal, too, suggested that the applicant had claimed that the door
had simply fallen off. Under cross examination Chabilal,
however,
conceded that in his statement he had recorded that the
applicant “
parked
the tow motor, jumped off the tow motor and started explaining what
happened whilst he was doing a delivery”
[3]
[15]
The
applicant’s version was that he had on stopping the “tow
motor” he approached Chabilal and Govender and explained
to
them what had happened. His explanation was not that the door had
simply fallen off but that the trolley had collided with a
truck. In
reply, Govender had asked three questions: why is the door in the
trolley? ; was anyone hurt? ; and was the truck damaged?
[16]
The
applicant’s evidence was that his responses had been that he
had removed the door and placed it in the trolley as it was
hanging
from the trolley; that no one had been hurt; and that there were
scratches on the truck. Govender had then instructed Chabilal
to
accompany him to the place where the incident had occurred.
[17]
Apart
from these different versions as to what had transpired at the time
immediately following the applicant’s parking of
the w tow
motor, what happened thereafter is again largely common cause.
Specifically that Govender had instructed Chabilal to
accompany the
applicant to the scene of the collision to investigate it.
[18]
Chabilal’s
evidence was that
en
route
to the place where the accident had occurred he had not spoken to the
applicant nor had he discussed the incident with the applicant.
On
arrival at the scene the applicant had immediately made enquiries as
to the whereabouts of the truck and the driver. In his
evidence in
chief, Chabilal explained:
“
Firstly, as
I said before, we went to a truck location, where trucks move.
Secondly [the applicant] himself was looking for a damaged
truck and
a driver, a specific driver. At that point looking at the damaged
trolley and the way the door was badly damaged, you
could clearly see
that there was some collision between the trolley and the truck.”
[4]
[19]
Chabilal
and the applicant had at that time attempted to obtain CCTV footage
of the incident. Chabilal asked the applicant to make
a statement,
which he did immediately, and explained therein that a trolley he was
towing had collided with a truck.
Grounds of review
[20]
The
applicant pleaded and argued three grounds of review:
1.1
The
first ground relates to the conclusion by the third respondent that
the first respondent had established on a balance of probabilities
that the applicant was dishonest in reporting the accident:
“
DISHONESTY:
in that you did not give a correct report of the incident when
questioned by management
”
[5]
;
and
1.2
The
second ground is in respect of the third respondent’s
conclusion that the first respondent has established that the
applicant
was grossly negligent: “
GROSS
NEGLIGENCE: in that you did not follow company safety procedures
thereby endangering yourself and others and damaging company
property.”
[6]
;
and
1.3
Thirdly
that the third respondent’s conclusions that the applicant’s
conduct breached the trust relationship and that
dismissal in the
circumstances was an appropriate sanction was unreasonable.
[21]
Dealing
firstly with the charge of “gross negligence” there is
nothing in the evidence that suggests that the applicant’s
conduct amounted to gross negligence. The third respondent’s
finding as to what constituted “gross” negligence
is
particularly illuminating:
“
With
regards to the second charge, namely, gross negligence in that the
applicant did not follow company safety procedures therefore
endangering himself, others and damaging company property, I’m
satisfied with the respondent’s evidence that the applicant
did
not stop the tow motor when the truck was reversing into the dock as
it is the rule of the company to do so
.
It
is the evidence that no-one must drive past the truck when it is
reversing. I have no reason to reject the respondent’s
evidence
that the trolley was badly damaged… It is the evidence that
the respondent suffered financial loss as a result
of the applicant’s
conduct. In the circumstances that led to conclude that the
respondent’s version of the applicant
committed gross
negligence is more probable than that of the applicant that he did
not.”
[7]
[22]
This
assessment of the applicant’s conduct does not suggest gross
negligence nor does it accord with details of the charge.
Neither the
evidence of Govender nor Chabilal establishes that the applicant was
grossly negligent. There can be no doubt that
the applicant was
negligent with regard to the driving of the “tow motor”
as is evidenced by the fact of the collision.
It is also so that the
applicant should not have driven on that route. Neither fact
however justifies the conclusion that
the applicant was
grossly
negligent. The third respondent’s conclusion in regard to this
charge is not one that a reasonable arbitrator could come
to on the
evidence presented at the arbitration.
[23]
It
is clear from the third respondent’s award that the third
respondent was satisfied on the evidence that the applicant was
dishonest. The applicant challenges the reasonableness of this
conclusion; namely that on a balance of probabilities that the
applicant was dishonest.
[24]
To
summarise the evidence relating to the alleged dishonesty:
24.1
Chabilal
and Govender suggested that the applicant told them no more than the
door was weak and had simply fell off;
24.2
In
response Govender instructed Chabilal to accompany the applicant to
the scene of the incident;
24.3
Chabilal’s
evidence was he then accompanied the applicant to the scene of the
incident without discussing anything with the
applicant;
24.4
It
is common course that Chabilal and the applicant went directly to the
scene of the incident where the applicant immediately commenced
looking for the damaged truck;
24.5
They
both attempted to obtain CCTV footage of the area;
24.6
Shortly
after arriving at the scene Chabilal instructed the applicant to
prepare a statement which he did. The statement prepared
by the
applicant deals with the collision with the truck and makes no
mention of the door having fallen off of its own accord.
[25]
A
careful reading of the evidence of Govender, Chabilal and the
applicant does not in any way support their conclusion that the
applicant was in any way dishonest. Neither Govender nor Chabilal
attempt to explain why the applicant, if he had in fact given
them
the explanation that the door simply fell off, without any
instruction or discussion led Chabilal directly to the scene and
immediately started looking for the driver and the truck with which
he had collided.
[26]
Apart
from the dispute as to what explanation the applicant offered, a
simple assessment of the probabilities suggests that any
attempt by
the applicant to mislead Govender and Chabilal would have been
futile. The applicant’s evidence was that as soon
as he had
parked the tow motor he approached Govender and Chabilal. This
explanation is corroborated by Chabilal under cross examination
when
he was referred to his statement. The evidence clearly established
that on being instructed to accompany Chabilal to the scene,
the
applicant without further ado took Chabilal directly to the scene of
the collision to find the truck and the driver.
[27]
The
sequence of events suggests that at best for Govender and Chabilal
they misunderstood the extent of the applicant’s explanation.
It is also apparent from the record of the arbitration that the
applicant gave evidence through an interpreter.
[28]
I
am not persuaded that on the evidence and material placed before the
third respondent that the conclusion that the applicant was
dishonest
is a conclusion to which a reasonable arbitrator could come.
[29]
The
addition, the “conclusions” in the charge sheet
characterising the misconduct as “DISHONESTY” and “GROSS
NEGLIGENCE” when describing the nature of the misconduct with
which the applicant was charged appear to be nothing more than
an
attempt to render the charges more serious than they actually were.
The issue in question for decision by the arbitrator was
to decide
whether the evidence established that the misconduct constituted
dishonesty or gross negligence. The arbitrator simply
and
unreasonably concluded that the applicant was guilty of the
misconduct and that therefor he was dishonest and grossly negligent.
[30]
Likewise,
it was incumbent upon the third respondent to consider whether the
evidence of Govender and Chabilal, regarding their
allegation that
the trust relationship had broken down, was probable in light of the
evidence surrounding the misconduct. Given
that the dispute regarding
the applicant’s explanation of the damage to the trolley and
the evidence regarding the so-called
gross negligence, it is
difficult to conclude on a balance of probabilities, that the trust
relationship between the first respondent
and the applicant had
broken down.
[31]
I
am satisfied in concluding that, the third respondent reached a
decision that another decision-maker could not reasonably have
arrived at based on the evidence before him.
[32]
As
far as the sanction is concerned it is clear that the sanction of
dismissal was based on the suggestion that the applicant’s
misconduct was firstly dishonest and secondly, amounted to gross
negligence. The third respondent in fact discounts the applicants
nineteen years service and clean disciplinary record on the strength
of the conclusion that the applicant was dishonest and grossly
negligent.
[33]
Applying
the test on review as set out in the
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[8]
, I am satisfied that the
award of the third respondent dismissing the applicants application
and concluding that the dismissal
was fair is reviewable and should
be set aside. The applicant is therefore entitled to be reinstated.
[34]
It
is clear from the surrounding facts of this matter that the applicant
was indeed guilty of negligence surrounding the conclusion
between
the trolley he was towing and the truck. It is also so that the first
respondent suffered damages.
[35]
Given
the age of the matter and the fact that neither party addressed what
would be an appropriate sanction should the sanction
of dismissal be
found to be unfair, it is necessary that this court imposes an
appropriate sanction.
[36]
As
far as costs are concerned I am of the view that in the interests of
fairness no order should be made.
[37]
The
applicant having filed his review 4 days late applied for condonation
for the late filing of his application. The application
for
condonation was not opposed. Condonation is granted.
[38]
Taking
all the circumstances into account the following order is made:
Order
1.
The
award of the third respondent under case number KNDB 1140/14 dated 14
September 2014 is reviewed and set aside and substituted
with an
order that the applicant was unfairly dismissed;
2.
The
first respondent is ordered to reinstate the applicant on the same
terms and conditions as he enjoyed at the time of his dismissal
but
that such reinstatement is limited is to take effect from the date of
the arbitration award namely 14 September 2014;
3.
The
applicant is to return to work within fourteen days of the date of
this award;
4.
There
is no order as to costs.
________________________
D. H. Gush
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant: Adv. C
van Reenen
Instructed by: N M
Sithole & Associates
For the Respondent: B.
McGregor of McGregor and Erasmus Inc.
[1]
Record page 37
[2]
Record page 37.
[3]
Record page 16.
[4]
Record page 7 and 8.
[5]
CCMA record Respondent’s bundle
page 13.
[6]
CCMA record Respondent’s bundle
page 13.
[7]
Arbitration award para 5.5pages 30/1.
[8]
(2014) 35 ILJ 943 (LAC) at para 20.