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[2019] ZALCJHB 234
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Ram Transport (South Africa) (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR2655/14) [2019] ZALCJHB 234 (1 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: JR 2655/14
In the matter between:
RAM
TRANSPORT (SOUTH AFRICA) (PTY) LTD
Applicant
and
THE NATIONAL
BARGAINING COUNCIL FOR THE
ROAD
FREIGHT AND LOGISTICS INDUSTRY
First
Respondent
COMMISSIONER
W.N. NKGOENG N.O.
Second
Respondent
TEBOGO
SIMON MAGODI
Third Respondent
Heard:
31 July 2019
Judgment
delivered: 1 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second
respondent (the arbitrator). In his award, the
arbitrator found that the third respondent had been unfairly
dismissed by the applicant
and ordered his reinstatement with
retrospective effect.
[2]
The material facts are recorded in the award and I do not intend to
repeat them here.
It is sufficient for present purposes to record
that the third respondent was employed by the applicant as a driver
and that he
was dismissed on 1 July 2014 after having been found
guilty on charges of grossly negligent and reckless driving, and
bringing
the applicant’s name into disrepute. The third
respondent challenged the fairness of his dismissal and the matter
was ultimately
referred to an arbitration hearing before the
arbitrator. The charges brought against the third respondent were the
consequence
of a report received by the applicant from a member of
the public complained that a vehicle bearing the applicant’s
branding
was observed on the N1 overtaking string of vehicles on the
wrong side of the road, clearly marked double line prohibiting
vehicles
overtaking from either side of the road.
[3]
At the arbitration hearing, Mahlangu testified, as did the third
respondent. There
was initially a dispute about the identity of the
vehicle that had been the subject of the complaint. The complainant
had identified
a vehicle with registration number BY 45 SW GP. The
vehicle owned by the applicant and driven by the third respondent on
the route
to Musina on the day in question bore the registration
number BY 45 SN GP. This was the basis on which the third respondent
contended
at the arbitration hearing that he had never driven a
vehicle with registration number identified by the complainant and
that there
was another vehicle travelling the same route on the same
day with that registration number. In his analysis of the evidence,
the
arbitrator came to the following conclusion:
33.
However, the prompt abilities are that the vehicle on page 13 was the
same vehicle allocated
to the applicant and his crew. My conclusion
is supported by the content of page 16 of the bundle of documents. It
is in this context
that I had no reason to accept the version of Mr
Abel Mahlangu to be more probable that the vehicle seen by Carel
Breytenbach [the
complainant] speeding and overtaking from the wrong
side of the road was the company vehicle registration number BY 45 SN
GP that
was allocated to the applicant and crew.
34.
I find the applicant’s argument based on one letter of the
number plate not convincing
at all. The author of the email even
though he was not called to testified (sic), his testimony would not
have made any difference.
He would still not be able to tell what was
the correct number plate and further as to who was driving when the
incident happened.
[4]
This conclusion is not disputed. What is in dispute and what lies at
the core of the
present application of the following two paragraphs
of the award:
35.
The next question to be answered is whether the applicant was a
driver at the time of incident
or not? It appears not to be in
dispute that the two drivers would alternate. Despite our cautionary
rule on evidence of a single
witness, I do not know why the
respondent decided not to call Thabo [Mamosebo] to give evidence as
the only person who was the
applicant at the time. It is therefore my
finding on a balance of probability that the respondent has failed to
substantiate evidence
that the applicant was guilty of the said
offence.
36.
I have no reason not to accept the un-controverted version of the
applicant that he had
signed vehicle control sheet as confirmation
that he handed back a petrol card and pole slips. It thus follows
that the dismissal
of the applicant by the respondent was
substantively unfair.
[5]
The context to this conclusion is evidence by the third respondent
that he and his
co-courier (Thabo Mamosebo) shared responsibility for
the driving of the vehicle and that he (the third respondent) was not
the
driver at the time at which the incident took place.
[6]
The applicant contends that the arbitrator’s conclusion is
reviewable on the
basis that he failed properly to have regard to the
evidence and that in consequence, the outcome of the arbitration
proceedings
(in the form of the arbitrator’s award) falls
outside of a band of decisions to which a reasonable decision-maker
could come
on the available evidence. In particular, the applicant
contends that the arbitrator was faced by a material dispute of fact
and
that he failed properly to adopt the proper approach to determine
which of the two irreconcilable versions before him was the more
probable.
[7]
The test to be adopted in proceedings such as the present are
established and does
not warrant repetition. In short, the court
powers to intervene on review require the applicant to establish that
the arbitrator
committed a reviewable irregularity and that the
irregularity had the result of an award that is unreasonable, in the
sense that
no reasonable decision-maker could come to the decision to
which the arbitrator came on the available evidence. (The applicant
does not contend that the arbitrator misconceived the nature of the
enquiry, the other basis for review in terms of s 145 of the
LRA.)
[8]
In my view, the present application stands to succeed. The arbitrator
dismissed the
applicant’s version only on the basis that its
representatives at the arbitration hearing failed to call Thabo
Mamosebo as
a witness and, it would seem, that the third respondent
had signed a vehicle control sheet on his return from Musina only for
the
purpose of handing back a petrol card and toll slips.
[9]
Had the arbitrator embarked on an assessment of the third
respondent’s credibility,
he would have found that the third
respondent had put up a patently false version when he claimed that
the vehicle that was the
subject of the complainant’s report
had not been driven by him. The version that the vehicle concerned
had not been allocated
to him and Thabo and that it was a vehicle
owned by the same employer which happened to be on the same road on
the same morning
was nothing less than fanciful. When evidence was
led that the complainant had stated that the registration number of
the vehicle
that he had observed being driven recklessly ‘appeared
to be’ or ‘looked like’ BY 45 SN GP, the third
respondent
nonetheless persisted with his version. The arbitrator’s
finding that the third respondent had in fact put up a false version
in his defence ought to have alerted him to the third respondent’s
credibility, all, more accurately, the lack of it. Further,
the
evidence clearly discloses that the defence that he was not driving
at the relevant time is a defence that was never raised
at the third
respondent’s disciplinary hearing. This much was confirmed by
Mahlangu in his evidence. The first time that
the third respondent
alleged that he would state that he was not the driver of the car was
in the arbitration hearing when Mahlangu
was cross- examined by the
third respondent’s representative. In response to what appeared
to be no more than a musing by
the third respondent’s
representative that given the fact that there were two drivers ‘
I
will be able to say whether uh maybe it was the other driver was
driving at 16:00 although it is this one who handed in at 18:00
but
earlier the other driver was the one
’, the arbitrator
intervened. The following exchange took place:
COMMISSIONER: is it, is
it going to be your, your case that it was not the applicant was
driving the car, instead, instead it was
Thabo who, who was driving
the car?
APPLICANT
REPRESENTATIVE: Uh, yes Commissioner.
COMMISSIONER:
Put, put it to him.
APPLICANT
REPRESENTATIVE: That…
COMMISSIONER:
And remember, and remember that one who alleges must in truth, put it
to him.
APPLICANT
REPRESENTATIVE: the applicant is going to tell the
commission that at 16H00 hours uh 16H10 he was not
the one driving,
although he was the one who handed him the motor vehicle. What would
you say?
MR ABEL MAHALANGU: He is
the one that was driving.
[10]
The evidence discloses further that Mahlangu interviewed the third
respondent in respect of the
incident after the applicant’s
receipt of the complaint and that the third respondent stated he knew
nothing about the incident.
In his examination in chief, the third
respondent testified that because he was new to the specific branch
and was learning the
route, Mamosebo was responsible for the vehicle
and that he (third respondent) was the co-driver. He testified
further that at
the time when he and Mamasebo left the hub, Mamosebo
was driving. They proceeded to a shop nearby in order to buy food,
after which
the third respondent drove to Musina, and that Mamasebo
drove on the return trip. When it was put to the third respondent
under
cross-examination that when he was initially questioned about
the incident, he stated that he could not recall who drove the
vehicle
at the time. The third respondent offered an explanation to
the effect that at the time of the disciplinary enquiry, he was not
certain who drove the vehicle when the incident occurred, but that
after the disciplinary enquiry he had perused documents in respect
of
the deliveries and determined who drove the vehicle. When asked why
these documents had not been presented at the arbitration
hearing,
the third respondent stated that they were the property of the
applicant and that it would be illegal for him to have
removed them.
When he was asked how he gained access to the documents given that he
had been dismissed on 1 July 2014, the third
respondent stated that
he went back to their last customer where they delivered parcels and
perused the documents there. The third
respondent again changed his
version when he said:
I never said I went to,
to the shop and, I said I went to documents that I’ve
delivered. I didn’t say went to the company
and asked for the
papers. I said I went to the papers that I’ve delivered, it’s
what I have said, the invoices that
I have delivered, it’s what
I said.
[11]
This version, to the effect that the third respondent drove to Musina
to attend at the client’s
store to clarify whether or not he
was the driver of the vehicle for the purposes of an appeal hearing
is far-fetched. There was
no need for the third respondent to drive
all the way to Musina to recollect when it was that he drove the
vehicle. Further, it
was never a version that was put to the
applicant’s witness when he testified. More fundamentally, one
might have expected
the third respondent, if his defence was that he
was not the driver of the vehicle, to have said so in no uncertain
terms from
the outset. The fact that he instead contested the
identity of the vehicle as a primary defence and that his
representative late
in cross-examination suggested that since there
were two drivers, the third respondent
may
not have been
driving at the relevant time, calls the third respondent’s
version into question.
[12]
Further, the third respondent failed satisfactorily to explain why it
was that his name and signature
appeared on the incoming drivers
sheet on the relevant date, when the vehicle returned to the hub. The
third respondent had signed
as the driver of the vehicle and signed
the incoming drivers sheet. Under cross-examination, he proffered a
version that on returning
to the hub, he and Mamosebo remained seated
in the vehicle and that the security guard approached him, as the
passenger, to fill
out the incoming drivers sheet. He stated that he
did so to effect the return of petrol cards and toll slips, although
there is
no indication on the form that this was the purpose of
signature. Again, this is not a version that was put to the
applicant’s
witness and stands in stark contradiction to the
evidence by the applicant’s witness that drivers return to the
hub and sign
the register to signify their return to base.
[13]
In short, had the arbitrator scrutinised the evidence, he would have
found that the third respondent
was an unreliable witness and that in
particular, his initial reliance on a false version of events, only
to be replaced with an
entirely different version put to the
applicant’s witness only at the end of his cross-examination
and then only on the arbitrator’s
prompting, had the
consequence that the third respondent’s version fell to be
rejected. It is not open to arbitrator’s
simply to resort to
the onus without a proper evaluation of the evidence and
determination of the probabilities. I would venture
to say that a
resort to the onus of proof may be employed only when the
probabilities are evenly balanced – it is not a mechanism
to
avoid the proper determination of a factual dispute. The arbitrator
ought properly to have found, on the available evidence,
that it was
more probable than not that the third respondent was the driver of
the vehicle at the time of the incident and that
he had driven the
vehicle recklessly and brought the company into disrepute. The
arbitrator’s award that stands to be reviewed
and set aside.
[14]
Little purpose would be served to remit the matter to the bargaining
council for rehearing. The incident
complained of took place more
than five years ago, and the court is a full record of the
proceedings under review. Insofar as it
is necessary for the court to
consider an appropriate sanction for the misconduct that the third
respondent committed, there is
no dispute that the third respondent’s
conduct was serious, and that he endangered his own life, and those
of his co-driver
and other road users. Given further the capacity in
which the third respondent is employed, they can be no question that
dismissal
is an appropriate sanction.
[15]
The applicant’s representative charitably did not pursue the
issue of costs, and in the
circumstances and on the exercise of the
court’s discretion in terms of s 160 of the LRA the interests
of the law and fairness
are best served by each party bearing its own
costs.
I make the following
order:
1.
The arbitration award issued by the second
respondent under case number LPRFBC 31207 dated 30 October 2014 is
reviewed and set aside.
2.
The second respondent’s decision is
substituted by the following:
‘
The
applicant’s dismissal was substantively and procedurally fair’.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr J Du Randt, DDP Attorneys
For the respondent: Ms NN
Zulu, Ismail & Dhaya Attorneys