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[2019] ZALCJHB 175
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Hestony Transport (Pty) Limited v Venter NO and Others (JR2537/17) [2019] ZALCJHB 175 (12 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no.: JR 2537/17
In
the matter between:
HESTONY TRANSPORT
(PTY) LIMITED
Applicant
and
VENTER
PN
N.O.
First Respondent
NATIONAL
BARGAINING COUNCIL FOR THE ROAD FREIGHT AND LOGISTICS INDUSTRY
Second Respondent
FASO,
BUTINYANA DICK
Third Respondent
Heard:
11 January
2019
Delivered:
12 July 2019
Summary:
Review application. Employee dismissed as a result of
irregularities in respect of diesel consumption. The
issue of
procedure was in contention. Manner in which arbitrator
considered evidence in respect of alleged procedural irregularity
inadequate. Review application accordingly granted.
JUDGMENT
SNIDER,
AJ
Background
facts
[1]
This is an unopposed review application. There was a notice of
intention
to oppose filed by the Third Respondent on 24 November
2017, but it does not appear from the papers before me that the Third
Respondent
took any further steps to oppose the matter.
[2]
The Third Respondent was employed by the Applicant as a driver and
was
dismissed from its employment, after approximately eight years of
service, on 30 December 2016, pursuant to a disciplinary enquiry.
[3]
The matter was arbitrated before the First Respondent on 31 August
2017
and 30 September 2017. As far as the substantive aspects of the
matter are concerned the arbitrator found in favour of the Applicant
that the dismissal was substantively fair.
[4]
In respect
of the procedural aspects of the dismissal the First Respondent found
that the dismissal was procedurally unfair and
made an award in
favour of the Third Respondent, that the Applicant compensates the
Third Respondent in an amount equivalent to
two months’ salary,
being the aggregate sum of R17 304.00.
[1]
The
evidence of Martin Nell
[5]
In essence this matter concerns the manner in which the First
Respondent
considered and treated the evidence of the Applicant,
particularly the evidence of Martin Nell (“Nell”), who
presided
over the disciplinary hearing.
[6]
The case
for the Third Respondent was that he was unable to speak English, and
required that the disciplinary enquiry be conducted
in Afrikaans.
Nell gave evidence in relation to the language issue as follows
[2]
-
6.1
the records reflect that Afrikaans was spoken at the disciplinary
enquiry as that was the
preference of the Third Respondent;
[3]
6.2
the only parts of the hearing that were in English were words like
“consumption”
or “Diesel”. Such words
were “
used to explain it in English
” and then
translated back to Afrikaans;
6.3
the Third Respondent did on occasion say that “
hy’t
nie verstaan nie
”. Nell would then try to elaborate
on the relevant concepts in English and then explain them in
Afrikaans;
6.4
certain English terms were used but no actual conversation took place
in English;
[4]
6.5
Nell denied that the Applicant tried to stop the hearing and denied
that he would ever refuse
someone an interpreter;
6.6
it was abundantly clear that the Third Respondent could not
understand English;
[5]
and
6.7
whereas some of Nell’s notes may have been in English, this is
not a reflection of
language in which the enquiry itself took
place.
Grounds
of review
[7]
The Applicant’s main ground of review is that the First
Respondent
failed to deal with the evidence, specifically the
evidence of Nell, on a proper basis, and never gave any reasoning for
why he
preferred the evidence of the Third Respondent over that of
Nell.
[8]
In support of this ground of review the Applicant also mentions the
following:
8.1
Nell’s evidence was corroborated by one Phillip Jones
(“Jones”);
8.2
the testimony was corroborated by the documentary evidence, and
8.3
the First Respondent never told Nell that he was unable to follow
what was happening in
the hearing (although a version was put to Nell
that the Third Respondent asked for the hearing to be halted because
he did not
understand).
[9]
There were a number of other issues raised by the Applicant such as:
9.1
there was no basis for the First Respondent not to have preferred the
testimony
of Nell and Jones;
9.2
the evidence of each of the Applicant’s witnesses was
corroborated by the others,
and was similarly corroborated by the
documentary evidence. The failure of the Third Respondent, at
any stage, to have asked
for an interpreter, points to him having
understood or having been able to understand “small parts”
[6]
of the hearing that were in English and which were, on Nell’s
version, translated for the Third Respondent;
9.3
the Third Respondent never told Nell, even on his own version, that
he was not able to follow
the hearing;
9.4
the First Respondent appeared to be motivated by considerations of
sympathy;
9.5
the First Respondent failed to comply with the provisions of the
Labour Relations Act
[7]
(LRA)
pertaining to the conducting of fair and proper arbitration
proceedings in terms of the LRA;
9.6
factual findings made by the First Respondent did not correspond with
the evidence and documents
placed before him;
9.7
the First Respondent exceeded his powers in terms of the LRA;
9.8
the First Respondent did not properly, rationally and justifiably
apply his mind to the
facts or the law in this instance;
9.9
the First Respondent failed to afford the Applicant a fair and proper
hearing in the circumstances
and failed to properly conduct the
arbitration proceedings, and
9.10
the award made by the First Respondent is not justifiable in relation
to the reasons given for
it. The award is not rational on its
merits or outcome and is not an award a reasonable decision maker
could arrive at.
The
award as it refers to the issues in dispute
[10]
The First
Respondent dealt with the issue of procedural fairness inasmuch as it
related to the question of whether the matter was
heard in English or
Afrikaans, and whether this impacted on the Third Respondent’s
understanding of the proceedings in three
paragraphs which bear
repeating at this stage
[8]
-
“
[34] The
Applicant raised no issue that the hearing was conducted in Afrikaans
and it is his case that parts were concluded
in English and that he
therefore failed to understand the entire hearing. It was not
disputed that certain parts (albeit
small parts) were conducted in
English without an interpreter assisting the Applicant.
[35]
There exists no reason why the Chairperson did not obtain the
services of an Interpreter and
he deviated from the preferred
language despite the fact that the right to understand proceedings is
a cornerstone of the LRA.
The Applicant was in fact deprived of
a very basic right.
[36]
The internal hearing was not conducted in a fair manner and the
process was unfair. It
therefore follows that the dismissal was
procedurally unfair.”
Analysis
[11]
The First Respondent in this matter was confronted by a dispute of
fact which was material
and central to his determination of the
procedural fairness of the disciplinary enquiry.
[12]
On the one hand he had the version of Nell, as corroborated by Jones,
that to the extent
that any English terminology, and it only referred
to terminology, was used during the conduct of the disciplinary
enquiry, the
meaning of same was conveyed to the Third Respondent.
On Nell’s version, corroborated as aforesaid, these were the
only instances in respect of which English was used.
[13]
In
cross-examination by the Third Respondent’s representative it
was put to Nell that parts of the hearing were conducted
in English.
Again Nell maintained that certain terms were used but no actual
conversations took place in English.
[9]
It was also put to Nell that the Third Respondent tried to stop the
hearing and asked for an interpreter.
[14]
The First Respondent was duty bound to resolve these factual
disputes, yet did nothing
more than state, as set out above that
“
there exists no reason why the Chairperson did not obtain
the services of an Interpreter when he deviated from the preferred
language
…
” and on that basis found that the
dismissal was procedurally unfair. What he failed to resolve
was whether, indeed,
Nell had been fully cognisant of the Third
Respondent’s inability to converse in English, and had made
sure that any English
terminology was understood by the Third
Respondent.
[15]
The Labour
Court, for example in
Lukhanji
Municipality v Nonxuba N.O. and Others and Assmang Limited (Assmang
Chrome Dwarsriver Mine) v CCMA and Others
[10]
as well as the Labour Appeal Court, see for example,
House
of Flowers and Others v Radebe and Others and NUM and Another v
Rustenburg Platinum Mine and Others
[11]
have found that the technique described in
Stellenbosch
Famers Winery Group Limited Another v Martel et Cie and Others
[12]
applies equally to Commissioners.
“
The technique
generally employed by courts in resolving factual disputes of this
nature may conveniently be summarised as follows.
To come to a
conclusion on the disputed issues a court makes findings on –
a) the
credibility of the various factual witnesses;
b)
their reliability; and
c) the
probabilities.
As to (a) the courts
findings on the credibility of a particular witness will depend on
its impression about the veracity of the
witness. That in turn
will depend on a variety of subsidiary factors, not necessarily in
order of importance, such as
i.
the witness’s candour and demeanour in the witness box,
ii.
his bias, latent and blatant;
iii.
internal contradictions in his evidence;
iv.
external contradictions with what was pleaded or put on his behalf,
or with established
fact or with his own extra-curricular statements
or actions;
v.
the probability or improbability of particular aspects of his
versions;
vi.
the calibre and cogency of his performance compared to that of other
witnesses testifying
about the same incidents or events.
As
to (b), witnesses reliability will depend, apart from the factors
mentioned under (a)(ii), (iv) and (v) above
i.
the opportunities he had to experience and observe the event in
question; and
ii.
the quality, integrity and independence of recall thereof.
As
to (c) this necessitates an analysis and evaluation of the
probability and improbability of each party’s version of each
of the disputed issues. In the light of its assessment of (a),
(b) and (c) the court will then, as a final step, determine
whether
the party burdened with the onus of proof succeeded in discharging
it. The hard case, which will doubtless be the
rare one, occurs
when the courts credibility findings compel it in one direction and a
valuation of the general probabilities in
another. The more
convincing the former the less convincing will be the latter.
But when all factors are equipoised
probabilities prevail.”
[16]
There are
various degrees to which a commissioner may be held to follow the
approach set out above.
[13]
The First Respondent in this instance seemed to have done nothing at
all to resolve the evidentiary issue. It seems
as if he was not
aware of the task that he was required to perform in order to resolve
the evidentiary questions that lay before
him.
[17]
It is however still necessary to view the manner in which the First
Respondent treated
the evidence through the lens of the review test,
and determine whether his conduct renders the award reviewable.
[18]
Regard must
be had to the test for review as set out in
Sidumo
and Another v Rustenburg Platinum Mine Limited and Others
[14]
:
“…
whether
the decision that the arbitrator arrived at is one that falls in a
band of decision to which a reasonable decision maker
could come on
the available material.”
[19]
In my view the conduct of the First Respondent falls short of the
test in Sidumo and his
conduct renders the award reviewable.
Accordingly in my view the award falls to be set aside.
[20]
All that remains for me to consider is whether the award should be
set aside and replaced
with an award that the Third Respondent’s
dismissal was procedurally fair or, alternatively, whether the
procedural issue
should be remitted back to the Second Respondent to
be heard afresh by a Commissioner other than the First Respondent.
[21]
Because this matter involves an issue of credibility, and having not
heard the witnesses,
I am unable to substitute my finding for that of
the First Respondent on the issue of the procedural fairness of the
dismissal.
I am simply not in as good a position as the First
Respondent to decide the matter.
[22]
I do not intend to make any order as to costs given that the matter
was not opposed.
[23]
Having considered this issue I make the following order:
Order
1. The award of the First
Respondent, only to the extent that he found the dismissal of the
Third Respondent procedurally unfair,
is reviewed and set aside;
2.The issue of the
procedural fairness of the dismissal is referred to the Second
Respondent to be heard by a Commissioner other
than the First
Respondent, and
3.There is no order as to
costs.
___________________________
Snider,
A J
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: A J Posthuma of Snymans Inc.
Attorneys
[1]
Pleadings bundle page 22
[2]
The evidence of Nell appears from page 22 to 33 of the bundle
entitled [INDEX TO RECORD]
[3]
Page 24
[4]
Page 30
[5]
Page 32
[6]
Page 21 of the pleadings paragraph 34 of the award
[7]
Act 66 of 1995, as amended.
[8]
Pleadings page 21 paragraphs 34 to 36
[9]
Page 30 of the Index to Record
[10]
[2007]
2 BLLR 130
(LC) para [27]
and
[2015]
6 BLLR 589
(LC) para [42]
[11]
[2014]
4 BLLR 366
(LAC) para [15]
and
(2015)
1 BLLR 77
(LAC) para [43]
[12]
2003(1) SA 11 SCA para [5]
[13]
See for example:
Solidarity
on behalf of van Zyl v KPMG Services (Pty) Limited and Others
2014 35 ILC 1656 (LC) para [16] to [17], [16] In summary, complaints
about errors made in the treatment and assessment of evidence
by an
arbitrator will normally be bound I up in an attack on the overall
reasonableness of the result, andwill not in themselves
constitute
separate grounds of review to be determined independently from the
result (as they did under the 'latent irregularity'
or 'dialectical
unreasonableness' approach).
[17]
While arbitrators should always aspire to meet the exacting standard
A set by the Supreme Court of Appeal in
Stellenbosch Farmers'
Winery
for the proper assessment of conflicting versions by a
finder of fact, an arbitration award that does not live up to this
standard
will not automatically be subject to review. Arbitrators
are empowered to deal with the dispute with a minimum of legal
formalities,
their decisions B are immune from appeal, and the
legislature has set a high bar for reviewing arbitration awards.
Errors committed
by an arbitrator in the assessment thereof will not
necessarily vitiate an award.
[14]
[2007] 12 BLLR 1097
CC