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[2018] ZALCD 21
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Imperial Group (Pty) Ltd t/a Europcar v South African Transport & Allied Workers Union obo Maphumulo and Others (D758/16) [2018] ZALCD 21 (8 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D758/16
In
the matter between
:
IMPERIAL
GROUP (PTY) LTD T/A EUROPCAR Applicant
and
SOUTH
AFRICAN TRANSPORT & ALLIED
WORKERS
UNION OBO N MAPHUMULO First
Respondent
THE
COMMISSION FOR MEDIATION,
CONCILIATION
ARBITRATION
Second Respondent
COMMISSIONER
M KHUBONE
Third
Respondent
Heard:
31 October 2018
Delivered:
8 November 2018
Summary:
Review application – nature of a business is a serious
consideration when determining the appropriateness of the
sanction –
remorse not helpful where trust is broken.
JUDGMENT
NKUTHA
- NKONTWANA. J
Introduction
[1]
The
applicant (Europcar) seeks an order reviewing and setting aside the
arbitration award issued by the third respondent (commissioner)
under
case number KNDB2667-16, dated 30 June 2016. The commissioner found
that the dismissal of Ms Nokukhanya Maphumulo (Ms Maphumulo),
a
member of the first respondent (SATAWU), was procedurally and
substantively unfair.
[2]
Europcar’s
main impugn is that the commissioner patently misconceived the nature
of the enquiry and rendered an unreasonable
arbitration award. SATAWU
is defending the award.
Review
test
[3]
In
Shoprite
Checkers v Commission for Conciliation, Mediation And Arbitration and
Others,
[1]
the court succinctly affirmed the review test as follows:
‘
[8]
Following the SCA’s judgment in
Herholdt
and the LAC’s judgment in
Gold
Fields
, the LAC handed down
a very important judgment in
Mofokeng
.
In this judgment, Murphy AJA provided the following (with respect,
typically insightful) exposition of the review test:
“
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the inquiry.
In the final analysis, it
will depend on the materiality of the error or irregularity and its
relation to the result. Whether the
irregularity or error is material
must be assessed and determined with reference to the distorting
effect it may or may not have
had upon the arbitrator’s
conception of the inquiry, the delimitation of the issues to be
determined and the ultimate outcome.
If but for an error or
irregularity a different outcome would have resulted, it will ex
hypothesi be material to the determination
of the dispute
.
A material error of this
order would point to at least a prima facie unreasonable result.
The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant factors informing
the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable equilibrium
has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the arbitrator,
a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the issues, with the
result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted from the correct
path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.” (Emphasis
added.)
[9]
This dictum in
Mofoken
g says many important things about the
review test. But for present purposes, consideration need only be
given to the guidance that
it provides for determining when the
failure by a commissioner to consider facts will be reviewable. The
dictum provides for the
following mode of analysis:
a.
the first enquiry is whether the facts ignored were material, which
will be the case if a consideration of them would (on the
probabilities) have caused the commissioner to come to a different
result;
b.
if this is established, the (objectively wrong) result arrived at by
the commissioner is prima facie unreasonable;
c.
a second enquiry must then be embarked upon – it being whether
there exists a basis in the evidence overall to displace
the prima
facie case of unreasonableness; and
d.
if the answer to this enquiry is in the negative, then the award
stands to be set aside on review on the grounds of unreasonableness
(and vice versa).
[10]
The shorthand for all of this is the following: where a commissioner
misdirects him or herself by ignoring material facts,
the award will
be reviewable if the distorting effect of this misdirection was to
render the result of the award unreasonable.’
Pertinent
facts and evaluation
[4]
The facts
in the present case are mostly common cause. Europcar is in the
vehicle rental business. The vehicles are revenue generating
assets
for its business. Given the exposure to risk when every vehicle is
driven on the roads, Europcar’s core business tenet
is that
drivers must be authorised. This rule is applicable to employees as
well.
[5]
The
employees are allowed from time to time to use the vehicles that are
not rented out to customers to generate revenue known as
‘non-revenue’ vehicles. However, the usage of non-revenue
vehicles is subject to approval by a manager.
[6]
Ms
Maphumulo was employed as a sales agent at King Shaka Airport. She
was charged and dismissed for using a non-revenue vehicle
without
authorisation. The incident took place on 4 February 2016.
[7]
Ms
Maphumulo conceded that she knew the rule. However, it was her case
that the practice at that time was that employees were allowed
to
book non-revenue vehicles without authorisation when there was no
public transport for them to use. On the day of the incident,
she had
knocked off at 22:30 and went to the bus stop to wait for the 23:00
bus. She found a number of commuters as the 21:00 bus
that did not
arrive. At about 23:10, some commuters called the diver of the 23:00
bus and he informed them that the bus had a tyre
puncture. Seeing
that the bus would not come, Ms Maphumulo decided to use the
non-revenue vehicle. She did not inform her manager
but she did make
an entry on the system that she took the non-revenue vehicle home.
[8]
Europcar
was adamant that the rule that employees must seek permission before
using the non-revenue vehicles was crucial for effective
and
efficient running of its business. The vehicles are its revenue
generating assets. On the day in question they were fully booked
and
could have used the non-revenue vehicle to generate income.
[9]
Strangely
the commissioner found that Ms Maphumulo was not guilty as charged
simply because when she logged the vehicle on the system
she
partially compiled with the rule. Ms Rene Anderson, the branch
manager, testified that the rule was peremptory and even herself
was
bound. She could not use a non-revenue vehicle without authority.
However, there are employees who drive the non-revenue vehicles
without seeking prior authorisation because that is covered in their
contracts of employment.
[10]
Ms
Maphumulo’s main defence was that it was a practice to book out
non-revenue vehicles without authority. Ms Nobuhle
Mtemu,
SATAWU’s witness, corroborated this evidence. She testified
that under ‘compelling circumstances of transport
shortages’
employee used the non-revenue vehicles without authorisation. Ms
Anderson denied that there was such a practice.
However, she conceded
that it was not easy to pick up unauthorised use of non-revenue
vehicles from the system, hence she had to
confront the applicant in
this instance. Counsel for Europcar submitted that Europcar depend on
the
bona
fides
of its employees to manage its fleet of vehicles. Ms Maphumulo
did not present any evidence to show that Ms Anderson was
aware of
the usage of non-revenue vehicles without authorisation and that she
condoned the contravention, notwithstanding.
[11]
On
procedure, the commissioner correctly dismissed SATAWU’s
challenge that Ms Maphumulo was a shop-steward and that her
representative
was not allowed to act for her during the disciplinary
hearing. The essence of a disciplinary hearing is to afford the
employee
an opportunity to challenge the case of the employer in
her/his defence. In this instance, Ms Maphumulo was indeed afforded
an
opportunity to be heard.
[12]
Where the
commissioner missed the point is in relation to the mitigating
circumstances. Even if the chairperson did not apply his
mind to the
mitigating circumstances as alleged, that misdirection could not have
supported a finding of procedural unfairness.
Counsel for Eurpcar
correctly submitted that conduct of the
chairperson in ignoring the mitigating
circumstances goes to the
appropriateness of the sanction, if at all.
[13]
The
mitigating circumstances could not have helped Ms Maphumulo in this
regard as the nature of the offence goes to the trust relationship.
Even though she showed remorse and offered to compensate Eurpcar for
the loss suffered, she breached the trust to deal reliably
with the
assets of Eurpcar. She clearly took a risk of driving the
non-revenue vehicle home without authorisation when it
could have
taken her a single call to get same.
Conclusion
[14]
In all the
circumstances, I am conceived that the commissioner committed a
reviewable irregularity in that he embarked on the inquiry
in a
misconceived manner. Clearly, the distorting effect of the
commissioner’s failure to consider the material evidence
before
him was of such a nature as to cause an unreasonable award.
Relief
[15]
It would be
imprudent to remit the matter back to the second respondent, the
Commission for Conciliation, Mediation and Arbitration
(CCMA) given
the prejudice to the parties as a result of further delay in
finalising the matter. In any evet, it is practice in
this Court to
deal with the matter to finality, where possible, as is the case in
this instance.
[16]
Since it is
common cause that the applicant breached of the rule, the issues for
determination are whether the rule was consistently
applied and
whether the sanction of dismissal is appropriate. Ms Anderson
was adamant that there was no practice that the
non-revenue vehicles
could be booked without authorisation, as stated above. Ms Maphumulo
failed to adduce any evidence to prove
that management was aware of
the practice and condoned it. Also, it is mind boggling that Ms
Maphumulo was willing to compensate
Europcar for the losses it
suffered when she was allegedly acting in accordance with practice.
Put differently, her defence that
there was a practice that was
inconsistent with the rule negates her remorse.
[17]
Nonetheless,
on the issue of
the breakdown in the trust relationship occasioned by an employee's
dishonest misconduct, the LAC in
Impala
Platinum Ltd v Jansen and Others,
[2]
referring to
G4S
Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others
with
approval, stated:
‘
[19] …an ‘
employment
relationship by its nature obliges an employee to act honestly, in
good faith and to protect the interests of the employer.
The high
premium placed on honesty in the workplace has led our courts
repeatedly to find that the presence of dishonesty makes
the
restoration of trust, which is at the core of the employment
relationship, unlikely
.
Dismissal for dishonest conduct has been found to be fair where
continued employment is intolerable and dismissal is “a
sensible operational response to risk management”’.
(Emphasis added)
[18]
Pertinently,
with regard to remorse, the LAC also endorsed the judgment of
Schwartz
v Sasol Polymers & Others
,
[3]
where it was stated:
‘
While I agree … that the
lack of remorse shown by appellant is relevant,
even
if genuine remorse had been shown by him, this would only have been a
factor to be considered in his favour in determining
sanction and
would not have barred his dismissal, remorseful or not, having regard
to the seriousness of the misconduct committed
.’
(Emphasis added)
[19]
In the
premises, I am convinced that the dismissal of Ms Maphumulo was both
procedurally and substantively fair.
Costs
[20]
I am
disinclined to award costs against SATAWU as the parties have a
persisting relationship.
[21]
In the
premises, I make the following order:
Order
1.
The
arbitration award issued by the third respondent under case number
KNDB2667-16, dated 30 June 2016 is reviewed and set aside.
2.
The
arbitration award is replaced with the following order:
‘
The
dismissal of Ms Maphumulo is substantively and procedurally fair’
3.
There is no
order as to costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Ms Kellie Hennessy from Farrell Inc Attorneys
For
the first respondent:
Mr France Dubula, SATAWU legal officer
[1]
[2015] ZALCJHB 229;
[2015] 10 BLLR
1052
(LC); (2015) 36 ILJ 2908 (LC) at paras 8 - 10.
[2]
(2017) 38 ILJ 896 (LAC) at para 19.
[3]
Supra
,
reported at (2017) 38 ILJ 915 (LAC).