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[2019] ZALCJHB 165
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Premium Trucking CC v NBCRFLI and Others (JR1207/17) [2019] ZALCJHB 165 (28 June 2019)
t
he
labour court of South Africa, JOHANNESBURG
Not
Reportable
case
no:
JR
1207/17
In
the matter between:
PREMIUM TRUCKING
CC Applicant
and
NBCRFLI First
Respondent
MR
P. D SEOPELA N.
O Second
Respondent
TASWU
OBO PETROS BALOYI Third
Respondents
Heard
:
26 June 2019
Delivered
:
28 June 2019
Summary:
An opposed review application – The outcome is one that a
reasonable decision maker can arrive at. Held (1): The application
is
dismissed. (2): Each party to pay its own costs.
JUDGMENT
MOSHOANA, J
Introduction
[1]
This is an
application seeking to review and set aside an award issued by the
second respondent in terms of which, it was found
that the dismissal
of Mr Petros Baloyi (Baloyi) was substantively unfair. The second
respondent further ordered the reinstatement
of Petros Baloyi and
payment of six months’ salary backpay. The applicant contends
that the award is tainted with defects
and thus reviewable under the
provisions of section 145 of the Labour Relations Act
[1]
(LRA). The application is opposed by the third respondent.
Background
facts
[2]
The applicant is a transport and logistic
business operating out of the town of Tzaneen in the Limpopo
province. Baloyi was employed
as a truck driver effective September
2009. He drove a refrigeration truck (known as a “reefer
truck”). On or about
19 October 2016, Baloyi was instructed to
offload a client’s merchandise at Morgan Cargo, situated at OR
Tambo Airport in
Gauteng province. On his arrival at OR Tambo
Airport, it was raining. In order to offload in those conditions,
Baloyi reversed
the truck towards the offloading point.
[3]
To offload the merchandise, a forklift was
used. The offloading was conducted by the manager of Morgan Cargo and
Baloyi remained
in the cab of the truck. During the offloading
process, the forklift damaged the rear end door of the truck. Baloyi
was summoned
by the manager of Morgan Cargo and shown the damage.
Owing to the damage, the truck was decommissioned for a period of
three days
when repairs were conducted to the damaged door.
[4]
On 25 October 2016, Baloyi was issued with
a notice to attend a disciplinary hearing in order to face
allegations of gross negligence
and insubordination. On the
negligence aspect, it was alleged that he caused the damage which
saddled the applicant with R70 000
worth of financial loss. On
the insubordination aspect, it was alleged that he failed to report
for duty on 24 October 2016 as
instructed. A disciplinary hearing was
held on 28 October 2016. Allegedly, Baloyi pleaded guilty to the
negligence charge and not
guilty to the insubordination charge.
[5]
Baloyi was found guilty of the other charge
and was dismissed. Aggrieved by his dismissal, he, through the trade
union referred
a dispute alleging unfair dismissal. At arbitration,
the charge of insubordination was abandoned. There was no challenge
on the
procedural fairness of the dismissal. After hearing evidence,
on 5 May 2017, the second respondent issued the impugned award.
Aggrieved
by the award, the applicant launched the present
application.
Grounds
of Review
[6]
The applicant alleges that the second respondent
exceeded his powers, alternatively committed a gross irregularity,
alternatively
misconduct. He misdirected himself and/or completely
misunderstood the facts of the case. It was contended that but for
the negligence
of Baloyi by failing to fully open and secure the rear
end doors of the trailer, the damage to the rear door would not have
happened.
The second respondent ignored the evidence of the
applicant’s witnesses.
Evaluation
[7]
By
now it is trite what the test for review in this court is. It is that
the decision must be one that a reasonable decision maker
may arrive
at
[2]
. Proper consideration of
the applicant’s grounds reveals that the applicant is seeking
to appeal, which powers this Court
does not have over an arbitration
award. The nub of charge 1 is that the negligence of Baloyi caused
damage. On the evidence before
the second respondent, Baloyi did not
break the seal for the doors to open. The damage was caused by the
forklift on the 23
rd
pallet’s offloading.
[8]
Regard
had to the charge and the lack of eye testimony, it cannot be
gainsaid that Baloyi did not damage the rear door as alleged.
The
finding that the dismissal of Baloyi was substantively unfair cannot
be faulted. This Court disagrees with a contention that
the second
respondent misunderstood the facts of this case. Mr Kirsten for the
applicant submitted that the dispute was about the
failure to secure
the doors. In other words, had the Baloyi secured the doors as it was
his duty to do so, the damage would not
have happened. This
submission ignores the fact that Baloyi was charged for having
damaged the doors and that was the reason he
was dismissed. An
employer cannot justify a dismissal on allegations that did not lead
to a dismissal.
[3]
[9]
On the evidence presented to the second
respondent, the report compiled by Du Toit reflected the following:
“
When
they were busy to remove the last pallet, the airbags of the freezer
suddenly lost pressure. The fridge lowered and the doors
jammed on
the loading bay.”
[10]
The above, accounts for how the damage happened.
That being the case, Baloyi did not cause the damage to the doors.
The evidence
of Ms Heckroodt in fact testified to the following
effect:
“
MS
NELSON
:
On page 31 the allegation was made that the airbags suddenly
lost
pressure and on page 32 the Applicant indicated that he proceeded to
inflate the airbags. Can you respond thereto?
MS
HECKROODT
: If there
was a problem with the airbags for like he stated it lost pressure,
it could have been…It burst
normally…”
[11]
Reading of the second respondent’s entire
award does not reflect any misunderstanding. The decision he arrived
at is one that
a reasonable decision maker can arrive at faced with
similar evidence. He did not commit any misconduct or an
irregularity. In
order to prove the charge against Baloyi, the
applicant needed to prove on the balance of probabilities that Baloyi
caused the
damage. This “
but for”
test that the applicant seeks to employ in this matter is unhelpful.
The second respondent was, in my view, correct when he concluded
that: “
The issue is not about the
improper opening of doors as the doors were opened hence the Forklift
Driver offloaded 22 pallets without
damaging the hinges of the doors
and only damaged them on the last pallet. It cannot therefore be said
that the damage was occasioned
by the negligence of the applicant”.
[12]
This finding fits with the evidence presented like
a glove. There can be no suggestion that this finding is inconsistent
with the
evidence presented before him. Thus, this application is
bound to fail.
[13]
In summary, the second respondent did not commit
any irregularity nor misconduct. His findings fall within the bounds
of reasonableness.
The award is free of any defect thus not
reviewable in law.
[14]
Regarding costs, I am of a view that an
appropriate order to make is for each party to bear its own costs.
[15]
In the results I make the following order:
Order
1.
The
application is dismissed.
2.
Each Party to pay its own costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant: Advocate
P H Kirstein
Instructed
by: Thomas
& Swanepoel Inc, Tzaneen.
For
the 3
rd
Respondent: Mr C Bensch of Higgs Attorneys,
Johannesburg.
[1]
Act 66 of 1995, as amended.
[2]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2008)
27 ILJ 2405 (CC).
[3]
ABSA Brokers (Pty) Ltd v Moshoana N.O and others
[2005] 10 BLLR 939
(LAC).