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[2019] ZALCJHB 178
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Ngululu Bulk Carriers (Pty) Limited v Mokhawane and Others (JR2459/17) [2019] ZALCJHB 178 (12 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no.: JR 2459/17
In
the matter between:
NGULULU BULK CARRIERS
(PTY) LIMITED
Applicant
and
KAMOGELO
FREDDY MOKHAWANE
First Respondent
COMMISSIONER
THOMAS NTIMBANA
N.O.
Second Respondent
NATIONAL
BARGAINING COUNCIL FOR THE ROAD FREIGHT INDUSTRY
Third Respondent
Heard:
9 January 2019
Delivered:
12 July 2019
Summary:
Application for the review of the decision of the Second Respondent
to reinstate a dismissed employee. Review application
centres
on decision of Second Respondent approach to the issue of sanction.
Principles relating to reviews of this nature
considered, restated
and applied.
JUDGMENT
SNIDER
AJ
[1]
This is an application for the review of an arbitration award made by
the Second Respondent (the Commissioner) pursuant to an arbitration
between the Applicant (the Employer) on the one hand, and the
First
Respondent (the employee) on the other, under the auspices of the
Third Respondent. The arbitration was heard on 1
September 2017
and 18 October 2017. The award is dated 22 October 2017.
Background
[2]
Briefly, the background to this matter is as follows. The
employer
operates in the logistics industry and particularly, it
appears from a conspectus of the evidence in the matter as a whole,
and
for the purposes of this judgment, in the bulk long distance
transporting of various products, including products produced in the
mining industry.
[3]
The Employee was employed by the Employer as a fleet controller from
September
2007 until his dismissal on 20 June 2017.
[4]
A major aspect of the Employee’s duties was to monitor the
activities
of trucks which were operated by the Employer for the
purposes of its business. In order to monitor the activities of
the
trucks the Employer utilises what appears from the evidence to be
a sophisticated tracking system which provides the fleet controllers
with a variety of real time and historical information.
[5]
The
allegations against the Employee
[1]
are –
“
a.
serious misconduct in that on 4 May 2017 and 5 May 2017 you did not
perform your duties
as employed for. H2111 (HHN728MP) loaded at
Lion on 4 May 2017 and stand at Lydenburg until the 5 May 2017 17H08
at not picked
on the tracking or let management know about it;
b.
on 5 May 2017 – did pick-up truck H2111 (HHN728MP) off-route
but did not let management know about it;
c.
did not pick-up that H2111 (HHN728MP) off-loaded a load
of Glencore
Lion close to Kwena Dam at plus / minus 18H54 on 5 May 2017; and
d.
lost to
company through your negligence.”
[2]
[6]
The issue which the Commissioner was required to decide was whether
the
Employee’s dismissal was substantively fair. The
Employee sought reinstatement. The procedural challenge to the
dismissal
was abandoned during the course of the arbitration.
[7]
Extensive evidence was led by the Employer in relation to the
functioning
of its business
vis a vis
the tracking and fleet
controlling aspect and it was made clear that a key, if not vital,
part of a fleet controller’s role
is to communicate with his
managers if he observes anything untoward on the tracking system.
[8]
Evidence was given that the tracking system operates on the basis of
what
is called a “Geofence”. The Geofence is an
area electronically demarcated by the computer system within which
certain trucks are entitled to operate, offload etc. The system
provides data to the fleet controllers in respect of all
of the
trucks relevant activities.
[9]
It will indicate when a truck stops, speeds, goes off its designated
route,
or tips its load. When a truck is operated normally, the
colour green is indicated on the system. If the truck is
speeding
it is indicated by brown, when the truck is standing it is
indicated by blue, when it is red it is either tipping outside the
Geofence
or there is a hijacking in progress.
[10]
If a truck departs from the demarcated Geofence space, the system
gives an alert that the
driver is off route.
[11]
It is also possible, not only to view the activities of a truck as
they are happening,
but also to view the activities of the truck
historically.
[12]
The trucks also have a hijack panic button which gives an alert to
the fleet controller
on the tracking system when operated by a
driver.
[13]
It was
emphasised in the evidence of Mr David Wessels (“Mr Wessels”)
on behalf of the Employer that there is “
one
golden rule, communication and communication, if you see something
wrong you immediately report it to your superiors
”.
[3]
This was not disputed. There was no attempt by the Employee to
establish criteria in terms of which certain failures
to communicate
events were acceptable.
[14]
Mr Wessels
gave evidence that the Employee had sent a bulk SMS to all drivers
“
not
to use the Bambi road, so all the drivers knows
.”
[4]
This was the evidence of the Employee in his statement as read by Mr
Wessels at the arbitration.
[5]
This statement was not challenged in evidence and further, the
last two lines states “
I
know it is my job to check history but only check movement”
[6]
was similarly not challenged.
[15]
Mr Wessels
further stated that a condition such as this, where there are four
trucks off road is an event which constitutes “
a
big red light”
and
“
big
trouble
”.
[7]
Further evidence was given by Mr Wessels that there are a number of
members of management who the Employee could have contacted
under the
circumstances.
[16]
The Employee gave evidence and, with respect, even without the
benefit of having seen the
demeanour of the witness it is quite
apparent that he was being less than candid with the Commissioner.
[17]
The versions which he gave in his evidence was far removed from what
had been stated by
the Employer’s witnesses, yet none of these
versions were put to the Employer’s witnesses. This is
not only highly
irregular but it seriously calls into question the
veracity of the Employee’s case as a whole.
[18]
For
example, the Employee says that there was another fleet controller
who ought to have reported the vehicles being off-road as
well. He
also said that the tracking system shows the route, but if the truck
took a wrong route it cannot indicate it.
[8]
[19]
This is not
only completely at odds with the evidence of the Employer’s
witness, but manifestly highly improbable.
[9]
He also says that only the senior controller has access to this
system which shows the actual movement of the truck.
Again this
is highly contradictory and improbable.
[20]
The
Employee then says that his failure to observe could have happened
because of so many trucks he was involved in, one or two
could have
been missed, unnoticed. Again this flies in the face of his
previous evidence.
[10]
[21]
The Employee also says that it was he who stopped the “Bambi
road” route and
he did it through a WhatsApp message, but some
of the driver’s don’t have WhatsApp on their phones so
they wouldn’t
have known of the change. It will be borne
in mind that in his statement he refers to messages not WhatsApps.
Again,
the prospect that the cancellation of the route would have
been done by the employee without it being effective, to the
knowledge
of the Employee, or where the Employee should have known,
is highly improbable.
[22]
In cross
examination, notwithstanding his presence throughout the arbitration,
the Employee denies having heard what the witnesses
said about the
truck tipping. Again this is simply unsupportable.
[11]
His representative and his failure to put the Employee’s
version to the witnesses casts a deep shadow over his case.
[23]
In this
regard the Labour Court in
Masilela
v Leonard Dingler (Pty) Ltd
[12]
held
that:
“
[28] …It is
trite that if a party wishes to lead evidence to contradict an
opposing witness, he should first cross-examine
him upon the facts
that he intends to prove in contradiction, to give the witness an
opportunity for explanation. Similarly if
the court is to be asked to
disbelieve a witness, he should be cross-examined upon the matters
that it will be alleged make his
evidence unworthy of credit. In
Small v Smith
1954 (3) SA 434
(SWA) Claassen J said at 438 –
…
It is grossly
unfair and improper to let a witness's evidence go unchallenged in
cross-examination and afterwards argue that he
must be disbelieved.'
[24]
In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[13]
the Constitutional Court held that –
“
[61]… If a
point in dispute is left unchallenged in cross-examination, the party
calling the witness is entitled to assume
that the unchallenged
witness's testimony is accepted as correct. This rule was enunciated
by the House of Lords in Browne v Dunn
and has been adopted and
consistently followed by our courts.
[25]
The
Employee further gave evidence that “
if
during the time when the truck was offloading I was in the office I
should have seen it, because (inaudible) the latest stage
when the
truck was approaching N4. I asked them why they are using that
route. They said that they do not know whether
that route is
still being used or not, because their phone does not have WhatsApp
so they missed the information
.”
[14]
[26]
This is
entirely contradictory to the Employee’s earlier evidence.
Earlier he says that he cannot see when trucks go
off road and he
cannot tell when trucks are tipping. Again this is simply not
credible evidence. Effectively the Employee
denies the
“history” function of the system in respect of which
unchallenged evidence was given by the Employer, and
then admits that
the tipping would have been visible in the history function of the
system.
[15]
The
material parts of the award
[27]
In essence
there is only one paragraph of the award which is relevant for the
purposes of determining this review application.
[16]
“
In this case, I
seriously doubt if the applicant’s defence on constancy
(consistency)
[17]
will find
any application. The only critical question to be determined in
this case is whether the applicant’s failure
to report to his
superiors about the four trucks that was using unauthorised route
justifies immediate dismissal. In digesting
this question, I
took into account the reason why the applicant failed to report, his
effort in contacting the four drivers in
question, the fact that such
route had just been cancelled a week before, his inability to noticed
that the load was already tipped
illegally and the fact that the
driver in question ran way til to date.”
The
grounds for the review application
[28]
The following grounds of review were advanced on behalf of the
Employer:
28.1
the Commissioner didn’t properly apply his mind to the evidence
that the Employee saw four
trucks going off the route; and
28.2 he
failed to apply his mind to the evidence that the Employee did not
report the authorised use.
[29]
If regard is had to the passage referred to above it is indeed the
case that the Commissioner
did not properly consider this evidence
that was before him. He says that he took into account the
reason why the Employee
failed to report, yet there was no
satisfactory reason given. The Employee simply stated that he phoned
the relevant drivers and
that he had informed them by WhatsApp and
some of them did not have WhatsApp on their cellphones. Neither
these, nor the
other feeble reasons allegedly given by the drivers,
are reasons for the Employee to not report the trucks going off
route.
Nor is the fact that the instruction had only been given
a week before. The Commissioner entirely fails to analyse this
factual
matrix.
[30]
These
events must be viewed in the context of clear and unchallenged
evidence of the Employer to the effect that communication is
key in
situations of this nature. Mr Wessels was emphatic in this
regard and stated that “
in
transport there is one golden rule you call it communication and
communication. If you see something wrong you immediately
report it to your superiors.”
[18]
[31]
The Commissioner also took into account, in this regard the
Employee’s inability
to notice that the load was already tipped
illegally. Even on the Employee’s own evidence he would have
been able to determine
the tipping by looking at the history of the
relevant truck’s movement. Even to the extent that there
might be contradictions
in this regard, the Commissioner failed to
resolve them in any manner whatsoever.
[32]
The fact that the driver in question ran away is neither here nor
there for the purposes
of a proper analysis of the evidence by the
Commissioner.
[33]
The Commissioner did not apply his mind to the evidence that the
financial loss cause to
the Employer was approximately R700 000,
which illustrates the seriousness of the Employee’s conduct and
the importance
of the tracking and reporting responsibilities which
are at the heart of his duties.
[34]
The
Commissioner also takes the view that even if the Employee had
informed his superiors, same would not have prevented such theft
by
the driver since the load was already tipped off when he contacted
the drivers.
[19]
[35]
There is no
evidence to this effect. On the contrary, Mr Wessels gives
evidence that people could have been rushed to the
scene and that
they have people close by
[20]
.
For all the Commissioner knew at the time, swift action by the
Employee in detecting and reporting the unlawful tipping
of the load
could have led to the theft being prevented or possibly even the
thieves being intercepted.
[36]
The Commissioner, by finding as he did, is saying that not reporting
is in order.
Not only is this a contradiction to the
Commissioner’s findings that Employees ought to act in good
faith towards their employees,
but, in addition thereto, it
completely undermines the Employers’ rules and functioning in
relation to the control of its
fleet. This is not a proper
analysis.
[37]
The
Employee did not show remorse
[21]
nor did he plead guilty. He denied the misconduct. Nevertheless
in these circumstances, where the Commissioner effectively
finds him
guilty of the offence, he was reinstated with R65 200 in back
pay.
[38]
The Commissioner failed to take into account that the Employee
disingenuously, and without
having put the relevant parts of his
version to the Employer’s witnesses, clung on to a crumbling
defence throughout his
testimony at the arbitration. This is a
factor that the Commissioner should have taken into account against
the Employee.
[39]
Another
aspect of the Commissioner not taking into account the seriousness of
the Employee’s conduct is that not only did
he not report the
four trucks having left the route, but he also did not report that
the relevant truck had been stationary in
Lydenburg for a period of
19 hours.
[22]
It
is indeed the case that the Commissioner took no account of these
aggravating factors relative to sanction which
he should have
properly considered.
[40]
Juluka Johnathan Kubayi, a senior fleet controller in the employ of
the Employer gave evidence
and emphasised the importance of
communication, which the Commissioner simply failed to take proper
account of.
[41]
The Commissioner did not undertake a balanced assessment of the
fairness of the sanction
of dismissal comparing properly and
analytically between the interests of the Employee and the Employer.
He considered the
Employee’s situation virtually exclusively.
[42]
In the
premises and with regard to the seminal dictum in S
idumo
and Another v Rustenburg Platinum Limited and Others
[23]
I am of the view that the Commissioner come to a conclusion on
sanction that a reasonable Commissioner could not have come
to.
[43]
Notwithstanding that the question of fairness does involve a value
judgment on the part
of each individual commissioner, and that there
are a range of outcomes which can be regarded as reasonable, the
facts of this
matter indicate that the Employee conducted himself in
a manner which was entirely contrary to his obligations in terms of
his
employment contract and that this had serious consequences for
the Employer. Not only this, but if the Commissioner’s
award stands it will create for the Employer a grey and
uncontrollable area in a key part of its business, where other fleet
controllers
would be able to escape the consequences of their
misconduct on the thinnest of excuses.
[44]
The Employee’s conduct in not having his version put to the
Employers’ witnesses
and then advancing a version which is
clearly not plausible or reasonably believable must be held against
him. The Commissioner
simply failed to have any regard to the
manner in which the Employee conducted his case in this regard.
[45]
Bearing in
mind that I have all of the relevant material in this matter before
me, and that many of the facts are common cause,
I am of the view
that it would be a forgone conclusion if this matter were returned to
the Bargaining Council to reconsider the
decision.
[24]
[46]
The
remission of this matter to go back to the Bargaining would simply
cause further delays and I am in as good a position as the
Commissioner was to decide the matter.
[25]
[47]
Accordingly I make the following order –
Order
1.The
award is set aside;
2.
the award is substituted with a finding that the dismissal of the
Employee was substantively fair;
3.there
is no order as to costs.
___________________________
Snider,
A J
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Naseen
J-bhay – Yusuf
Nagdee Attorneys
For
the Respondent: No
appearance.
[1]
Bundle of documents page 5.
[2]
The charges are quoted verbatim.
[3]
Transcript page 14 lines 10 to 14
[4]
Transcript page 23 lines 20 to 24, cited verbatim
[5]
Page 10 fourth last line
[6]
Page 23 line 25 to page 24
[7]
Page 25 and 26.
[8]
Page 102 .
[9]
Page 102.
[10]
Page 108 of the transcript lines 13 to 15.
[11]
Page 128 of the transcript.
[12]
(2004) 25 ILJ 544 (LC).
[13]
2000 (1) SA 1 (CC).
[14]
Page 135 of the transcript, this passage is quoted verbatim.
[15]
Page 139 lines 5 to 9 of the transcript.
[16]
Paragraph [24] page 17 of the bundle.
[17]
My insert, save for this insert the passage is quoted verbatim.
[18]
Page 14 of the transcript lines 11 to 14.
[19]
Page 18 paragraph [25].
[20]
Transcript page 18 lines 15 ff.
[21]
County
Fair Foods (Pty) Ltd v CCMA and Others
[1999] 11 BLLR 1117
(LAC) paras [17] to [18].
[22]
Page 7 lines 22 to 23 of the transcript
[23]
[2007] 12 BLLR 1097
(CC)
[24]
CSO
Valuation (Pty) Limited v CCMA and Others
[1998] 12 BLLR 1271 (LC).
[25]
Ibid at [19];
Tedco
Plastics (Pty) Limited v NUMSA and Others
(2000) 21 ILJ 2710 (LC).