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[2019] ZALCJHB 100
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G4S Cash Solutions (Pty) Ltd v SATAWU obo Sibeko and Others (JR1374/16) [2019] ZALCJHB 100 (14 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 1374/16
In the matter between:
G4S CASH SOLUTIONS
(PTY) LTD
Applicant
And
SATAWU obo SIBUSISO
SIBEKO
First Respondent
S.S MOLAPA
N.
O
Second
Respondent
NATIONAL BARGAINING
COUNCIL
FOR THE ROAD FREIGHT
AND LOGISTICS INDUSTRY Third Respondent
Heard: 7 November 2018
Delivered:
14 May 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
With this application, the Applicant (G4S) seeks an order reviewing
and
setting aside the arbitration award dated 6 June 2016
issued by the Second Respondent (the Arbitrator) under the auspices
of the Third Respondent, the National Bargaining Council for the Road
Freight and Logistics Industry (NBCFLI). In his arbitration
award,
the Arbitrator found that the dismissal of the Mr Sibusiso Sibeko
(Sibeko) on the grounds of
inter alia
negligence and breach of
trust
was procedurally fair but substantively
unfair
. Sibeko as assisted by SATAWU opposed the review
application.
Condonation:
[2]
The review
application was filed outside of the statutory time limits and G4S
seeks condonation in that regard. Under the provisions
of section
145(1A) of the Labour Relations Act (LRA)
[1]
,
this Court enjoys a discretion to condone the non-compliance with the
timeframes set-out section 145(1) of the LRA on
good
cause shown
.
[3]
The
requirement of
good
cause
entails a consideration of whether it is in the interests of justice
to grant condonation, having had regard to the extent of the
delay,
the explanation thereof, whether there are reasonable prospects of
success in the review application, and the prejudice
that the parties
will suffer should condonation be granted or refused.
[2]
[4]
The arbitration award is dated 6 June 2016 and the review
application
was filed on 8 November 2016. The delay is some
two months and two weeks, which in my view is excessive
albeit
not in the extreme.
[5]
I have had regard to the founding affidavit deposed to by Nicolette
Cronje,
the G4S’s Head of Human Resource Department, and
the explanation proffered for the delay. I have also had regard to
the issues of prejudice raised by Cronje and G4S’s prospects of
success. Having considered these and Sibeko’s opposition
thereto, I am satisfied that on the whole, good cause was shown and
ultimately, the considerations of the interests of justice
dictate
that condonation be granted.
The
background to the dispute:
[6]
Sibeko was
employed by G4S on 1 June 2011 as a Crewman. G4S is in the
business of
inter
alia
,
collecting, delivering and generally transporting cash between
clients and banks. On 16 April 2015, Sibeko was
issued with a notice to attend a disciplinary hearing to answer
to allegations of misconduct preferred against him.
[3]
The allegations of pertained to gross negligence, the alleged failure
to follow proper procedures when collecting money from a
client, and
breach of trust.
[7]
The nub of G4S’s case against Sibeko is that in the performance
of his duties as a Crewman, he manually collected bags of money from
a Pick ‘n Pay branch in the Carlton Centre, Johannesburg
instead of using the required normal HHT Scanner. As a result, only
two bags were delivered to what is called the Box room Marshall
instead of three bags that were collected. In the process, a bag
containing R19 000.00 could not be accounted for.
[8]
Following a disciplinary enquiry, Sibeko was found guilty of the
charges
and dismissed on 4 May 2015. SATAWU acting on his
behalf then referred an unfair dismissal dispute to the NBCRFL. When
attempts at conciliation failed, the dispute came before the
Arbitrator for determination.
Arbitration
proceedings
:
[9]
The evidence of G4S’s Technical Support Officer, Mr Pieter
Rustoff
(Rustoff) was that:
9.1.
G4S uses an electronic system called eViper system for collecting and
delivering cash consignment
to and from the designated clients. The
Crewmen are equipped with a handheld HHT scanner to record each
moneybag collected from
clients. If a Crewman had problems with the
HHT scanner or a client’s consignment was not uploaded on the
scanner, a duty
was on the Crewman to report the problem to the G4S’
Control room.
9.2.
Once scanned, the moneybags were then to be removed from the client’s
premises by
the Crewman into the armed vehicle, wherein the bags
would be scanned into the eViper system, using a scanner mounted in
the armed
vehicle.
9.3.
Once the Crewmen had made all the scheduled collections, it would be
expected of them to
go to the depot to deliver all cash consignments
to the Box-room Marshall who must in turn reconcile the delivered
consignment
against the eViper system, and further scan and tick
every moneybags delivered to the Box-room.
9.4.
According to Rustoff, on 14 October 2014, Sibeko had in the
performance of his
duties as a Crewman, collected three moneybags
from Pick ‘n Pay. Sibeko however failed to utilise the HHT
scanner when collecting
the money bags, and instead used a manual
receipt book. As a result, only two moneybags were accounted for when
they were delivered
to the Box room Marshall at the depot, resulting
in a loss of a moneybag containing R19 000.00, which was money
destined for
ABSA bank.
9.5.
Sibeko had according to Rustoff, also submitted his bulk book to the
Box room containing
the list of consignments collected on the day in
question, but the missing bag was not listed therein despite the
manual receipt
showing that three bags were collected from the
client. In the end, the eViper system recorded that only two bags
were delivered,
and the one bag could not be accounted for.
[10]
Under cross-examination, Rustoff testified that;
10.1
ABSA being a client had suffered a loss and had claimed from
G4S. He could not however
produce documents in that regard nor could
he produce proof that G4S repaid ABSA the missing amounts. He alleged
that he had those
documents somewhere in his office or the Head
Office.
10.2
He further testified that in instances where the Box-room Marshall
had identified disparities
in the consignment collected and delivered
against the records of the quality and value of the consignment, he
had the responsibility
to balance the consignment against each item
on the Crewman’s receipt book, whether the HHT and /or the
manual receipt was
used which should correspond with the
consignments.
10.3
Once the Box-room Marshall had identified disparities, it was his
duty to inform the Crewman
concerned of the shortage. Once the
problem was identified, the Technical Support Officer (TSO) would
then actively assist in the
search of the armed vehicle for any
missing consignment, and the Crewman would be prevented from leaving
the premises until investigations
were completed with a view of
finding the missing consignment. In the event that the disparity was
not remedied, the TSO would
then have the matter reported to the
SAPS. If however the records and the consignments balanced, there
would be no need to keep
the Crewman.
10.4
Rustoff further testified that the Box-room
Marshall had his own receipt book (
In
List
), which he utilised to record all
the items that were delivered to the Box-room. The
In
List
is a computer printout generated
by the consignments scanned into the Box-room. In circumstances where
the consignments were collected
manually, the moneybags would be
physically handed over to the Box-room Marshall and checked against
the entry on the manual receipt
book of the Crewman by affixing a
tick next to the serial number. He confirmed that the Box room
Marshall, Mathenjwa, did not tick
any of the other two consignments
and did not follow procedures.
10.5
On being asked whether all the consignments collected for the day
were scanned, his response
was that none were scanned for the day,
and all were manually picked up. He however could not provide proof
in respect of the other
consignments that were allegedly manually
picked.
10.6
He confirmed that despite the missing bag, no standard procedures
were put in place to initiate
an investigation on the same day and/or
the immediate morning, and that there was no indication that
Mathenjwa had brought the
disparities in the number of consignments
to Sibeko’s attention.
He further confirmed
that
no criminal case was opened with the SAPS in respect of
the loss in compliance with standard procedures.
10.7
He confirmed that Mathenjwa was disciplined and dismissed from
the employ of G4S on charges
of misconduct related to the theft of
R95 000.00, which offence was unrelated to the present case.
[11]
Sibeko’s evidence was as follows;
11.1
On 18 October 2014, he was scheduled to collect
consignments from seven different clients.
He had with him his HHT
scanner, a receipt book and a ‘Bulk book’.
11.2
In circumstances where the client was not uploaded onto the HHT
scanner such as Pick ‘n
Pay, the procedure was that the Crewman
should complete the collection by using a manual receipt book.
Having manually recorded
the consignment, he would then transfer that
information to the Bulk book, which is only used for bags that were
manually collected.
11.3
He confirmed having collected three consignments from Pick ‘n
Pay, which he had then handed
over to Mathenjwa, together with others
collected from other clients, and the Bulk book. Each bag used by G4S
had a bar code, and
Mathenjwa was then supposed to count and scan all
the bags as they were taken out of the armoured vehicle.
11.4
After scanning and counting the bags, he (Sibeko) was supposed to be
given a receipt from the
Bulk book and for him and Mathenjwa to sign
confirmation of the number of consignment delivered. All that
information would then
be passed on to Rustoff or TSO for his
records.
11.5
He confirmed that once a moneybag was collected from a client, the
Crewman was obliged to scan
it onto the on-board scanner in the armed
vehicle, which meant that there would be a record of a list of all
the moneybags that
were loaded onto the vehicle, even if they were
not scanned with HHT when picked up.
11.6
Once at the depot, it was then for Mathenjwa to use the on-board
printout and manual receipt
book, to verify that the numbers
balanced. Mathenjwa was further required to physically count the
moneybags collected using the
manual receipt book and also ticking
them on his receipt book. Once the reconciliation was done, both he
and Mathenjwa would co-sign
the
In List
to verify the number
of consignments, and that list remained in the custody of Mathenjwa.
11.7
He confirmed the procedures to be followed in circumstances where
disparities were discovered,
and contended that none of those were
followed. He only became aware of the missing moneybag on
9 March 2015 approximately
five months after the incident
took place, when the procedure required that he be notified on the
same day of any disparities in
his deliveries. Since the bag went
missing on a Friday, at most, G4S was required to have informed him
of the disparities on the
same day or the following Monday.
The
Arbitration award:
[12]
During the arbitration proceedings, and at the completion of the
testimony of Rustoff,
the representative of G4S had sought a
postponement on the basis of the unavailability of its witness. G4S
sought to lead the evidence
of Ms Nomvula Nkosi of Pick ‘n Pay
Carlton Centre, Mr Ndwandwe of SATAWU, and its Mr Monyela to testify
in regards to the
procedural fairness of the dismissal.
[13]
Sibeko’s representative had opposed the request for a
postponement, pointing out
that the arbitration proceedings had been
ongoing for a period of one year, and had been postponed in the past
on no less than
three occasions at the instance of G4S.
[14]
The Arbitrator had refused the request for a postponement and agreed
that the arbitration
proceedings were indeed previously postponed
three times at the instance of G4S, and that overall, the proceedings
had been delayed
in direct conflict with the purport and spirit of
expeditious dispute resolutions demanded by the LRA.
[15]
In respect of the merits of the dispute, the Arbitrator having
considered the evidence
of Sibeko and of Rustoff, concluded that the
evidence of Sibeko was more credible taking into account that
Rustoff’s evidence
constituted of hearsay. According to the
Commissioner, there was no evidence from G4S to rebut Sibeko’s
version that he had
delivered three moneybags to the Box-room
Marshall. In this regard, the Arbitrator’s findings on the
allegations of misconduct
were that:
15.1.
Sibeko’s version was that Pick ‘n Pay Carlton Centre was
not loaded onto the eViper systems,
thus making the collection with
the HHT scanner impossible.
15.2.
Rustoff’s version that the HHT scanner was fully operational
was insufficient to rebut Sibeko’s
version on the basis that
Rustoff was not present during the difficulties experienced with the
scanner at Pick ‘n Pay when
the bags were collected.
15.3.
There was no further evidence to indicate that the HHT scanner was
inspected prior to Sibeko commencing
with his duties on the
18 October 2014, to ascertain whether Pick ‘n Pay
Carlton Centre was loaded onto the eViper
system.
15.4.
Sibeko’s version that the scanner could not be used at Pick ‘n
Pay ought to be accepted, taking
into account that there was indeed
documentary evidence to prove that indeed he had collected the three
moneybags utilising the
manual receipt book.
15.5.
Sibeko’s version remained that he had delivered the three
moneybags to Mathenjwa, whilst Rustoff’s
version contained mere
denials. There was therefore no evidence to prove that Sibeko had not
delivered the three moneybags to the
Box-room on 18 October 2014,
particularly since Rustoff was not present when the delivery of the
consignments was made,
and could thus not rebut Sibeko’s
version.
15.6.
The Arbitrator observed that the procedures in instances where there
was a disparity were not observed,
including informing Sibeko of
those disparities, or escalating the matter to the TSO. In this
regard, the probabilities favoured
Sibeko’s version that all
the moneybags were delivered to the Box-room, hence the relevant
procedures were never activated.
Grounds
of review:
[16]
G4S contends that the Arbitrator committed a reviewable irregularity
by failing to take
into consideration all the material evidence
placed before him and further for not applying his mind to that
evidence, and thus
arrived at an unreasonable outcome. In this
regard, it was submitted that:
16.1.
The Arbitrator committed a reviewable irregularity in refusing the
application for postponement, and that
he failed to apply the
standard test in considering such a request.
16.2.
The Arbitrator failed to take into account the evidence and that the
charges preferred against Sibeko were
serious and rendered the
employment relationship intolerable.
16.3.
Its rules and procedure required that the moneybags be collected
using the HHT equipment and further that
Pick ‘n Pay had been
loaded onto the HHT equipment.
16.4.
Sibeko never reported that there were problems with the HHT scanner,
and it must therefore be presumed that
there were no problems with
it, and consequently, there was no reason why the moneybags were
collected using a manual receipt book.
The evidence in any event
revealed that three moneybags were collected from Pick ‘n Pay
but only two were delivered to the
Box-room.
Evaluation:
[17]
Prior to dealing with the Arbitrator’s findings on the merits,
the issue that needs
to be disposed of is whether his refusal to
postpone the arbitration proceedings was reasonable or not. This is
so in that if it
is found that the Arbitrator misdirected himself in
refusing the request, it would not be necessary to deal in detail
with other
grounds of review.
[18]
In
Carephone
(Pty) Ltd v Marcus NO and Others
[4]
,
Froneman DJP (as he then was) reiterated that an application for
postponement was not a matter of right. It is an indulgence granted
by the court to a litigant in the exercise of a judicial discretion.
With regards to proceedings before the CCMA, Froneman DJP
further
held that:
“
There
are at least three reasons why the approach to applications for
postponements in arbitration proceedings under the auspices
of the
commission under the LRA is not necessarily on a par with that in
courts of law. The first is that arbitration proceedings
must be
structured to deal with a dispute fairly and quickly (s 138(1)).
Secondly, it must be done with 'the minimum of legal formalities'
(s
138(1)). And thirdly, the possibility of making costs orders to
counter prejudice in good faith postponement applications is
severely
restricted. . . ”
[5]
[19]
An application for a postponement ordinarily involves a consideration
of various factors
including but not limited to;
i.
whether it was in the interest of justice and fairness that the
postponement be granted
or refused;
ii.
the prejudice likely to be suffered by either party should the
postponement be granted
or refused;
iii.
whether any prejudice could be cured by an appropriate costs order;
iv.
whether the
application was made timeously, was
bona
fide
or
is a merely tactical manoeuvre to delay the finalisation of
proceedings
[6]
.
[20]
From the
above, it can be accepted that when considering a request for a
postponement, arbitrators ordinarily exercise a discretion
which this
Court in review proceedings should not readily interfere with unless
a compelling case has been made, including that
the decision
was influenced by wrong principles or misdirection on the facts, or
that the discretion was exercised
capriciously
or
considered upon wrong principles.
[7]
[21]
A
postponement was sought on the basis that G4S wanted to subpoena a
witness, Ndwandwe, and also call Ms Nomvula Nkosi from Pick
‘n
Pay. G4S also wanted to call the chairperson of the enquiry, Mr
Monyela, who was then allegedly sitting in an urgent management
meeting in Krugersdorp.
[8]
Sibeko’s representative had immediately objected, pointing out
that there was no need to call Nkosi in the light of Rustoff’s
evidence that Pick ‘n Pay did not suffer any loss as a result
of the missing moneybag. Sibeko’s representative had
also
pointed out that the matter was postponed thrice in the past, and
that in the last sitting, the parties had narrowed down
the issues,
and G4S knew which witnesses to bring. He had contended that Sibeko
had been prejudiced by the delays in the matter.
[22]
Having had regard to the reasons advanced by the Arbitrator, I am
satisfied that he acted
reasonably in refusing the postponement, and
that there is no basis to interfere with his discretion for the
following reasons.
22.1
In refusing to grant the postponement, the Arbitrator clearly
considered the reasons advanced
for the request on basis that G4S had
adequate opportunity to secure the evidence of its witnesses in view
of the fact that it
was aware of the case it was required to meet,
particularly in respect of the procedural fairness of the dismissal.
22.2
The Arbitrator correctly rejected the explanation in respect of the
absence of Monyela, who it
was alleged was detained in an urgent
management meeting on basis that he (Monyela) had “prioritised”
that meeting
over arbitration proceedings, which were serious in
nature and particularly since those proceedings were pending for an
inordinate
period.
22.3
In my view, the argument advanced on behalf of G4S that Monyela was
obliged to attend the urgent
management meeting due to financial
losses G4S had experienced could not have been a primary
consideration over the interests of
Sibeko to have his unfair dispute
expeditiously finalised.
22.4
The Arbitrator correctly accepted that further delays were in
conflict with the purport of the
expeditious dispute resolution and
thus it was not in the interest of justice to postpone the
arbitration proceedings.
22.5
The arguments advanced in these proceedings on behalf of G4S that it
was under the impression
that Sibeko would call Nkosi and Ndwandwe
are hardly convincing. In the light of the notice of set down, G4S
clearly could have
enquired from Sibeko or his representatives
whether he intended to call those witnesses or not, and to make the
necessary arrangement
for their presence if necessary.
22.6
In seeking a postponement, G4S’s representative had tendered
costs, and it was argued on
its behalf that this could have mitigated
any prejudice to Sibeko. It is my view however that a tender costs in
arbitration proceedings
that were previously postponed on three
occasions at the request of G4S in the circumstances could not have
mitigated the prejudice
to Sibeko.
22.7
In arbitration proceedings, and in instances where the employee is
represented by a union official,
one cannot speak of ‘costs’
in the ordinary sense as legal costs. Any ‘costs’
referred to in such instances
can only be disbursements, which in the
end, are not sufficient to mitigate the self- evident prejudice
to a dismissed employee,
who had been waiting for a year to have his
matter finalised. To this end, there is no basis to interfere with
the Arbitrator’s
discretion to refuse a postponement.
[23]
The test on
review is settled. As was stated in
Goldfields
,
the review court must ascertain whether the arbitrator considered the
principal issue before him/her, evaluated the facts presented
at the
hearing, and came to a conclusion which was reasonable to justify the
decisions he or she arrived at
[9]
.
[24]
To the
extent that G4S’s case is that the Arbitrator failed to apply
his mind to the evidence and/or committed a misdirection
in the
assessment of evidence, the Supreme Court of Appeal in
Herholdt
v Nedbank Ltd and Another
[10]
held
that:
“
In
summary, the position regarding the review of CCMA award is this: A
review of a CCMA award is permissible if the defect in the
proceedings fall within one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount
to a gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the inquiry or
arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to the particular facts, are not
in and of themselves sufficient for an award to be set aside, but are
only of consequence if their
effect is to render the outcome
unreasonable.”
[25]
In this case, it can be accepted that on the face of it, the charges
preferred against
Sibeko were serious, as they entailed allegations
of gross negligence in the handling of cash from clients; an alleged
failure
to follow proper procedures in the handling of moneybags, and
breach of trust. The mere fact however that the charges are serious,
does not imply that it is given that a dismissal should follow, as
the onus remained on G4S to prove those charges and the fairness
of a
dismissal on a balance of probabilities.
[26]
On the common cause facts, it is apparent from the evidence of
Rustoff that all the G4S’
procedures regarding the handling of
the consignment upon delivery at the depot and in the Box room were
not followed. In this
regard, it is apparent that any disparities in
respect of the consignments collected and delivered on
18 October 2014
were only brought to the attention of
Sibeko some five months after the fact. It is not clear from the
record and the evidence
as to the reason that there was this delay.
Be that as it may, it is common cause that none of the procedures
related to any disparities
as confirmed by Rustoff and Sibeko were
followed on the day in question. There was further no evidence
presented that a criminal
case was lodged with the police, or that
ABSA had lodged a claim in respect of the missing money, or that any
payment was made
by G4S to ABSA in respect of the missing money.
[27]
The fact remains however whether Sibeko’s dismissal was for a
fair reason. It was
not in dispute that three moneybags were
collected from the client Pick ‘n Pay by Sibeko. As I
understood G4S’s case,
the one bag went missing as a result of
the non-use of the HHT scanner when collecting the bags, leading to
the allegations in regards to gross negligence and
failure to follow procedures
. At the same time however, it was
Rustoff’s testimony that on 18 October 2014, the HHT
scanner was not used in
respect of all the moneybags collected from
the seven clients on that day. Nevertheless, Rustoff could not
produce documentary
evidence in regards to the other moneybags that
were manually picked up, and the issue is why would Sibeko not be
charged in respect
of all the other consignments picked up for the
day if the HHT scanner was not used on them at all.
[28]
An even more concerning feature of this case is that Mathenjwa broke
every rule book when
receiving the consignments. He had not ticked
the moneybags as he received them nor did he pick up any
discrepancies after his
own verification exercise. He had according
to Sibeko, signed acknowledgement of receipt of all consignments and
it is not clear
what role he had played leading to the missing bag.
[29]
During the evidence of Rustoff, it was indicated by G4S’s
representative that it
intended to subpoena Mathenjwa, but this was
not to be so. Even when a request for a postponement was made,
Mathenjwa was not given
as a reason why a postponement was sought.
[30]
It is apparent that to the extent that Sibeko had utilised a manual
system in picking up
the moneybags from Pick ‘n Pay, and
further to the extent that Rustoff had testified that all moneybags,
whether picked up
through the HHT scanner or manually recorded in the
receipt book, had to be scanned when received by Mathenjwa, it can be
accepted
that there was nothing wrong in picking up the moneybags
manually from Pick ‘n Pay, and furthermore, the manual receipt
book
appears to have been designed for instances where bags could not
be scanned through the HHT scanner. The submission therefore made
in
these proceedings that Sibeko had to obtain permission from the
Control room before using the manual system has no merit.
[31]
Equally so, it is correct as stated on behalf of G4S that Sibeko had
custody of the moneybags
and had to account for it. In the
Arbitrator’s view, and with which I agree with, Sibeko had
given an account of what happened
to all the moneybags on the day in
question. He had followed the rules and procedures required of him as
a crewman by manually
picking up the moneybag from Pick ‘n Pay,
by completing the receipt and bulk books, and by signing the onboard
receipt, which
he had handed over to Mathenjwa. Upon Mathenjwa’s
own verification both signed to confirm that all the bags were
accounted
for.
[32]
For reasons best known to G4S, it had refused to discover at the
arbitration proceedings
despite a request by Sibeko’s
representative, certain documentary evidence including the bulk book
receipt containing the
list of consignments collected from Pick ‘n
Pay, which would have demonstrated that all the bags were collected
and delivered
to the Box room. It also refused to discover the
onboard printout, which would have demonstrated that all the
moneybags were captured
in the armoured vehicle. G4S cannot simply
rely on documentary evidence that is designed to bolster its case,
and yet at the same
time refuse to discover documents, which would
have assisted Sibeko with his case, or the Arbitrator in arriving at
an informed
decision.
[33]
Ultimately, the question that needs to be posed is if indeed there
were disparities on
the day in question, why were they not picked up
then in the light of the water-tight procedures put in place, and/or
why did Rustoff,
as the TSO fail to pick up those disparities on the
day in question, and why were all known procedures in regards to
disparities
not followed immediately on the day that they allegedly
arose.
[34]
Having had regard to the record, the submissions
made on behalf of the parties and the award, I am satisfied that the
Arbitrator
considered the principal issue before him, afforded the
parties a fair opportunity to state their respective cases, properly
evaluated
the facts presented at the hearing, and came to a
conclusion which was reasonable to justify the decisions he arrived
at. It follows
that all of the grounds of review relied upon by G4S
were unsustainable, and that there is no basis to interfere with the
Arbitrator’s
award.
Costs
:
[35]
G4S’
grounds of review and the accompanying averments to sustain the
review adopted a piecemeal approach. It sought to criticise
the
manner in which the Arbitrator considered the evidence and his
purported misdirection without sufficiently revealing the basis
upon
which the outcome reached on the evidence was unreasonable. That
approach was specifically warned against in
Goldfields
[11]
.
Having had regard to the requirements of law and fairness, it is my
view that G4S should therefore be burdened with the costs
of this
application.
[36]
In the premises, the following order is made;
Order:
1. The late filing
of the review application is condoned.
2. The application
to review and set aside the arbitration award issued by the Second
Respondent dated 6 June 2016
under case number GPRFBC 35086
is dismissed with costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
C
Crafford of Crafford Attorneys
For
the First Respondent: G.Z
Maphanga, instructed
by Dike Attorneys
[1]
Act 66 of 1995 (as amended)
[2]
Brummer
v Gorfil Brothers Investments
(Pty)
Ltd
[2000] ZACC 3
;
2000 (5) BCLR 465
;
2000 (2) SA 837
(CC) at para 3;
See
also
Ndlovu
v S
2017
(10) BCLR 1286
(CC);
2017 (2) SACR 305
(CC) (15 June 2017) at paras
22 – 23
;
Van
Wyk
v
Unitas Hospital (Open Democratic Advice Centre as amicus curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC)
at
477A-B;
SA
Post Office Ltd v CCMA
[2012]
1 BLLR 30
(LAC) at para [23], where it was stated that;
‘
In
my view, each condonation application must be decided on its own
facts bearing in mind the general criteria. While the rules
are
there to be applied, they are not inflexible but the flexibility is
directly linked to and apportioned in accordance with
the interests
of justice; prejudice; prospects of success; and finally, degree of
delay and the explanation thereof. The issue
of delay must be viewed
in relation to the expedition with which the law expects the
principal matter to be resolve
[3]
…Kindly take note that you are to attend a disciplinary
hearing to answer the following charges:
·
Gross Negligence: In that you fail[ed] to hand in bag 30214568200 to
the box room marshal Mr Mathenjwa when you hand[ed] in your
consignment to the box room on the 18/10/2014.
·
Misconduct: In that, you fail[ed] to follow the proper reception
procedure
by collecting three bags at the client with a manual
receipt while the HHT did not have a problem. When you deliver[ed]
your
consignment only two bags of Pick ‘N Pay Carlton Centre
appear on the E-Viper but the bag in question does not appear.
Therefore your behaviour was inappropriate.
·
Breach of Trust: In that the trust between [the] employer and
employee
has been perished and also the name of the company has been
in disrepute and therefore the company suffer a loss of R19 000.
[4]
1999 (3) SA 304
(LAC) at para 54.
[5]
at para 55
[6]
See
Petzer
v Independent Broadcasting Authority
(2000) 5 LLD 409 (LC) at 410;
Fundi
Projects & Distributors (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
(2006) 27 ILJ 1136 (LC) at para 10;
Masstores
(Pty) Ltd t/a Builders Warehouse v CCMA & others
[2006]
6 BLLR 577
(LC) at para 41
;
Insurance
& Banking Staff Association & others v SA Mutual Life
Assurance Society
(2000) 21 ILJ 386 (LC) at para 44.
[7]
See
Ex
Parte Neethling and Others
1951 (4) SA 331
(A);
S
v Kearney
1964 (2) SA 495
(A);
Camdons
Reality (Pty) Ltd and Another v Hart
(1993) 14 ILJ 1008 (LAC);
NUMSA
v Fibre Flair cc t/a Kango Canopies
(2000) 21 ILJ 1079 (LAC)
[8]
Transcribed
record at page 68 Lines 6 - 10
[9]
Gold
Field Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration & Others
ZALAC
28
[2007] ZALC 66
; ;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para 16
[10]
2013 (6) SA 224
(SCA)
[11]
At
para 18, where it was held that;
“
In
a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with
each of those factors and then determine whether a failure by
the
arbitrator to deal with one or some of the factors amounts to
process-related irregularity sufficient to set aside the award.
This
piecemeal approach of dealing with the arbitrator’s award is
improper as the review court must necessarily consider
the totality
of the evidence and then decide whether the decision made by the
arbitrator is one that a reasonable decision-maker
could make.”