About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 192
|
|
SATAWU obo Mpoko and Another v National Bargaining Council for the Road and Freight and Logistics Industry and Others (JR2039/16) [2019] ZALCJHB 192 (15 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2039/16
In
the matter between:
SATAWU
obo PETRUS MPOKO AND 1 OTHER
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR THE ROAD
AND
FREIGHT AND LOGISTICS INDUSTRY
First Respondent
COMMISSIONER
N A MNISI NO
Second
Respondent
FREIGHTMAX
(PTY) LTD
Third Respondent
Heard:
11 July 2018
Delivered:
15 August 2019
JUDGMENT
MOSEBO,
AJ
Introduction
[1]
This is an
application for review brought in terms of s 145 of the Labour
Relations Act
[1]
(the LRA). The
applicants seek an order reviewing and setting aside the arbitration
award issued by the second respondent (the
arbitrator) on 10 August
2016 under case number GPRFBC38674.
[2]
In her arbitration award, the arbitrator found that the dismissal of
the
individual applicants was substantively fair and that the
individual applicants were not entitled to any relief. The applicants
have launched the instant application for review as they are not
satisfied with the conclusions reached by the arbitrator.
Background
Facts
[3]
The individual applicants, Mr Petros Mpoko (Mpoko) and Mr Samuel
Maleka
(Maleka) were employed by the third respondent (Freightmax) as
driver and assistant driver respectively. On 19 October 2015, the
individual applicants were instructed by their superiors to deliver
54 drums of oil at Arnot Power Station (Eskom) in Mpumalanga.
The
instruction was given by the controllers, Patrick Maswanganyi and one
Gavi.
[4]
After the instruction has been issued, the individual applicants were
required to report themselves at the security and the driver was
required to produce his driving licence and the assistant his ID
and
these would be recorded by the security and the driver would be
issued with an invoice. The individual applicants were then
required
to approach the store manager with the invoice and the store manager
would show them the relevant truck already loaded
by a different
group of employees called pickers and already checked by another set
of employees called checkers. The individual
applicant's
responsibility was simply to verify the contents of the load by
comparing same with the invoice and the security would
also do the
same.
[5]
The individual applicants would leave the premises once they and the
security
had satisfied themselves that there were no discrepancies.
The individual applicants testified that the procedure set out above
was duly followed on 19 October 2015 and that they left the premises
of Freightmax with 54 drums of oil as indicated in the invoice.
It is
apparent from the procedure set out above that the chances of the
individual applicants loading additional 5 drums of oil
at Freightmax
are almost close to zero.
[6]
The individual applicants testified that upon their arrival at Eskom,
they produced the invoice and were required to write down their
personal details on the security booklet and were thereafter
permitted
to enter the premises. They proceeded to an area called
drum-yard where they found a forklift driver by the name of Solomon
Mahlangu
(Mahlangu) who told them that he could not offload the drums
with a forklift because they were not loaded on the pallets. As a
result, the individual applicants had to offload the drums using
their hands and by rolling the drums into a tail lift or skyjack.
[7]
Thereafter, the individual applicants and Mahlangu counted the number
of the drums that have been offloaded and they all proceeded to the
store manager, Mr Lucas Chiloane (Chiloane) who confirmed with
Mahlangu and them that the number of the drums written on the invoice
correlated with the number of the drums offloaded at the
drum-yard
and this was duly confirmed by the individual applicants and
Mahlangu.
[8]
Chiloane
signed and stamped the invoice
[2]
and then released the individual applicants. It is apparent from the
facts set out above that Chiloane relied on the information
received
from the individual applicants and Mahlangu without any verification
of his own.
[9]
It turned
out that one employee Johannes Masemola (Masemola)
[3]
got suspicious of the interaction between individual applicants and
Mahlangu at the drum-yard as according to evidence, Mahlangu
is known
for his ill-behaviour. The said employee tipped off the investing
officer, Mr Dick Mochitele (Mochitele) and Mochitele
instructed
security officer, Mr Botati Sekharume (Sekharume) to thoroughly
search the applicant's truck when it returned from the
drum-yard.
[10]
As the individual applicants drove back to the gate, it is common
cause that before exiting
the gate, Sekharume pulled the truck off
the road and informed the individual applicants that he had received
instructions to search
the truck. Sekharume was later joined by his
superior, Mochitele. It is also common cause that the individual
applicants were made
to wait by the gate for about 50 minutes.
[11]
However, there was a dispute that the arbitrator had to determine at
the arbitration. This
related to exactly what was found in the truck
when it was searched. At the arbitration, Sekharume and Mochitele
testified that
they found five drums of different colours loaded in
the truck. Upon enquiry, the individual applicants told them that
they were
going to deliver the drums to a client at Anglo Gold
Limited in Evander.
[12]
Sekharume
and Mochitele testified that the individual applicants produced
Freightmax waybill as a proof
[4]
to support their claim. At that time, Mpoko was on the phone with
someone. Mpoko gave the phone to Mochitele and said he should
speak
to their controller from Freightmax. The 'controller' enquired from
Mochitele as to why he was delaying these people as the
client was
waiting for the drums at Evander. Upon enquiry, the 'controller' was
able to name all five drums according to their
brands as set out in
the waybill. As a result of this call, Mochitele released the truck
together with its consignment and the
individual applicants left
Eskom premises accordingly.
[13]
Despite admitting that they were delayed for about 50 minutes by the
security personnel
at Eskom, the individual applicants denied that
the security found anything in the truck. Mochitele's version was
that even after
releasing the truck he still had doubts as to the
authenticity of the waybill because it was handwritten while the
invoice for
the delivery of the initial 54 drums was computerised. He
then called Freightmax offices and spoke to the transport manager, Mr
Dave Bailey (Bailey) who asked him to fax the waybill to him.
[14]
Bailey informed Mochitele that the truck was supposed to leave Eskom
premises empty and
therefore, the individual applicants must have
stolen the 5 drums from Eskom. In other words, Freightmax had no
consignment scheduled
to be delivered to Evander. He told Mochitele
that the waybill was fraudulent but he also told him to leave the
matter with him
and he would conduct the investigations going
forward. This information was confirmed by the controller, Mr Patrick
Maswanganyi
(Maswanganyi) who testified at the arbitration.
[15]
It is also common cause that after the truck was released by the
security personnel and
after it had left Eskom's premises, it stopped
at Holfontein road for about 11 minutes and 10 seconds. There is
again a dispute
as to exactly what happened when the truck had
stopped. That also is a dispute that the arbitrator had to determine.
[16]
The applicant's case at the arbitration was that Maleka had a
stomach-ache and the driver
stopped on the side of the road, N12, for
Maleka to relieve himself while the driver remained in the vehicle
and thereafter they
drove off to their destination.
[17]
Freightmax
called Mr Tullio Alteri (Alteri) from Altech Netstar who testified
that according to the GPS signal from the satellites,
the vehicle
stopped at the corner of Pansy and Holfontein Road and it was idling
for 11 minutes and 10 seconds.
[5]
[18]
Freightmax also called Mr Willington Mkhize (Mkhize) who testified
that as he was outside
his house, at the squatter camp situated along
N12 national road, on 19 October 2015, he saw a white half truck
stopping there.
Around 30 minutes later, a green truck arrived and
two people stepped out of the green truck and off loaded a green drum
into the
white half truck and thereafter the trucks drove away in
different directions.
[19]
It is also common cause that upon arrival at Freightmax, on 19
October 2015, the individual
applicants were confronted by the
transport manager, Bailey, about the Freightmax waybill that had been
telefaxed to him by Eskom
security. The individual applicants denied
any knowledge of the waybill. They were instructed to furnish written
statements about
the events of that day and they were placed on
suspension the following day.
[20]
Thereafter the following charges were levelled against the individual
applicants:
“
1.
Gross misconduct/Gross dishonesty in that on the 19
th
of
October 2015 you deliberately and unlawfully removed the client's
products from the customer's premises, Eskom Arnot Power Station,
namely, 1 x 210L Delo Gold +5W40, 1x 210L Spirax 86090, 1x 210L Omela
320 and 2 x 210L Perfecto TH246 and presented a fraudulent
waybill to
the customer's security personnel in an effort to mislead them to
allow you to leave with the said products, and/or
2.
Gross misconduct in that on the 19
th
of October 2015 at
around 17:40 whilst driving vehicle fleet 35098, registration number
ND108336 which was assigned to you and
under your control, you
diverted from your designated route and made an unscheduled and
unauthorised stop at an identified location
in Holfontein Road,
Welgedacht for approximately 11 minutes and 10 seconds, and act that
did not only placed the company property
at risk but also your life
and that of your co-worker's life at risk; and/or
3. Gross misconduct in
that you failed to act in the best interest of the company brought
the company's name into disrepute and
placed the contract between the
company and its client in jeopardy when you involved yourself in
above stated unacceptable and
elicit activities.”
[21]
At the end of the disciplinary hearing the individual applicants were
found guilty as charged
and were dismissed. They referred the dispute
to the first respondent for conciliation and arbitration. The
arbitration was scheduled
for hearing before the arbitrator on 20
April and 27 July 2016. The arbitrator delivered her arbitration
award on 10 August 2016
wherein she found that the dismissal of the
individual applicants was substantively fair and that they were not
entitled to any
relief.
[22]
The individual applicants are not satisfied with the outcome of the
award and have launched the
instant application to review and set
aside the award.
Grounds
for review
[23]
The arbitration award is attacked on various grounds. The first
ground is that the arbitrator should
have found that Eskom security
personnel should have called South African Police Services for the
alleged theft or they should
have called the relevant official, Mr
Chiloane, from Eskom, who would have been able to give clarity about
the alleged drums.
[24]
In response, Mr Mabaso who appeared on behalf of Freightmax submitted
that the individual applicants
are challenging the correctness of the
award as they suggest that the arbitrator should have found in a
certain way, but they are
not disputing the evidence that was
presented before the arbitrator. I agree with this submission.
[25]
In her award, the arbitrator stated that the evidence that criminal
proceedings have been instituted
against them remains uncontested in
spite of their contention that the matter was not reported to the
police.
[6]
This indicates that the arbitrator considered whether or not the
matter was reported to the police. Further, I am of the
view that
this ground of review has no merit in that it is trite in our law
that criminal proceedings constitute separate process
from the
internal disciplinary hearings.
[7]
[26]
In addition, this ground of review fails to take into account that
Mochitele released the individual
applicants after the telephone call
with 'the controller' who later turned out to have been a fake. In
other words, Mochitele was
reasonably convinced after speaking to
'the controller' that the individual applicants had a legitimate
reason for having the consignment
and that they had to deliver same
to a client in Evander in accordance with the waybill. It was only
after his discussion with
Bailey that Mochitele realised that he had
been misled. At that time the individual applicants had already left
the premises with
the consignment. Therefore, this ground of review
must fail.
[27]
The second ground of review is that the arbitration award is
contradictory in that the commissioner
indicated that she had serious
doubts about the respondent's case in that Mochitele's allegation
that the drums had been removed
from Eskom was not supported by any
relevant facts as Eskom never reported any form of theft or shrinkage
but at the same time
the arbitrator found that there was documentary
evidence supportive of Mochitele's testimony concerning the
fraudulent waybill.
[28]
It was further submitted that the commissioner found that the third
respondent had failed to prove
that the individual applicants had
removed the drums from Eskom but she found their dismissal fair based
on the evidence of Mkhize
which was found to have discrepancies and
based on the individual applicants' testimony which were found to be
deceptive and unreliable.
[29]
In order to address this submissions properly, it may be appropriate
to refer to paragraph 18 of the
award, where the arbitrator stated
the following:
"The
circumstantial and documentary evidence tendered by the Respondent to
substantiate its case goes no further than to establish
the
probability that the Applicants had been found in possession of the
consignment and that they diverted from the designated
route. The
difficulty with Mr Mochitele's allegation that the drums had been
removed from Eskom is that it was not supported by
relevant facts. It
remains a mystery as to where the consignment cane from or how it
landed onto the Applicant's vehicle in the
first place. What is also
apparent from the facts is that no corrective measures were taken
against Mr Mahlangu who was implicated
as an accomplice in that
regard, which raises some doubts as to whether the drums had indeed
been unlawfully removed from the client's
property. The Respondent
also confirmed that the client did not report any form of theft or
shrinkage of any kind. Clearly some
overt explanation is required
than a mere suspicion to substantiate these allegations. The
Respondent also led insufficient evidence
to validate its claim that
the waybill document had been fraudulently attained."
[8]
[30]
It is apparent from the preceding paragraph that the arbitrator found
that there was no conclusive
evidence presented at the arbitration to
establish that the drums had been removed from Eskom and she
concluded that it remained
a mere suspicion because even Mahlangu who
was implicated as an accomplice was not disciplined by Eskom and no
theft or shrinkage
of any kind was reported by Eskom to Freightmax. I
may add that I also find it inexplicable as to why no statement was
taken from
Chiloane and/or why was Chiloane not called to testify in
his capacity as the store manager and to shed light on this aspect.
But,
that is not the end of the matter.
[31]
At paragraph 19 of the award, the arbitrator continued and stated
that despite the missing pieces of
relevant factors in the
respondent's case, the events giving rise to the suspicion are
demonstrative of the fact that something
amiss indeed occurred on the
particular day because it was common cause that the individual
applicants were only authorised to
deliver 54 drums at Arnot, Eskom.
[32]
The arbitrator found that the fact that their vehicle was searched
more than once and that they were
even prohibited from leaving the
client's premises negated the individual applicant's claim that
nothing was found in their vehicle.
She also found that the
individual applicants were delayed by the security officials for an
inordinate amount of time and were
only released after a cell phone
conversation with the mysterious controller.
[33]
At paragraph 21 of the award, the arbitrator took into account the
irreconcilable versions between
Maleka and Mpoko wherein in his
written statement
[9]
,
Maleka corroborated the respondent's version that they made a call to
the controller when, on the other hand, Mpoko denied this
fact. The
arbitrator further found that there was documentary evidence
supporting Mochitele's testimony that the alleged fraudulent
waybill
was indeed transmitted to the respondent for verification, via fax at
15h08, at which point the individual applicants had
been waiting to
be released. I find no contradiction in this conclusion.
[34]
At paragraph 22, the arbitrator found that although the respondent's
evidence was inconclusive to prove
allegations of fraud and unlawful
removal of Eskom's products, they presented coherent and sufficient
evidence to justify a reasonable
suspicion that the individual
applicants were dishonest about the actual events forming the basis
of their dismissal.
[35]
In other words, the fact that there is no conclusive proof to
establish that the consignment was removed
from Eskom premises does
not excuse the individual applicants from providing an exculpatory
explanation of where they got the drums
and how they ended up with
the 5 drums in their vehicle including a fraudulent waybill which
incidentally had Maleka's signature
affixed on it. The arbitrator
found that the individual applicants proffered elusive,
irreconcilable and contradictory versions
in this regard.
[36]
Mr Mabaso who appeared on behalf of Freightmax referred this Court to
the decision in
Woolworths
(Pty) Ltd v CCMA and Others
[10]
a case where the Labour Appeal Court (LAC) held that a DVD footage
presented as evidence, where the employee was seen placing some
of
her employer's merchandise under her breast, established a
prima
facie
case of 'concealment' and, therefore, an element of dishonest
intention on the part of the employee, which then shifted the
evidentiary
burden to her to present such evidence as would exonerate
her from blame in that regard. The LAC had relied in that regard on
the
decision in
Federal
Cold Storage
Co Ltd v
Angehrn C amp Piel
[11]
where the court had stated the following:
“
But the burden of
proving to be honest what admittedly on its face looked dishonest
rested upon the respondents themselves, not
upon the appellants. Once
the appellants had proved a prima facie case of misconduct on the
part of the respondents in taking,
in violation of their duty, a
secret profit of the kind described, the dismissal stood prima facie
justified, the burden of proof
was shifted, and it lay upon the
respondents, as it does upon all agents in a fiduciary position who
deal with their principals,
to prove the righteousness of the
transaction. If they failed to discharge that burden satisfactorily,
then the prima facie case
against them must prevail and their guilt,
justifying dismissal, must be taken to be established. With all
respect to the learned
Judges of the Supreme Court, they seem to
their lordships to have failed to keep steadily before their minds
this shifting of the
burden of proof, and to have erred in
consequence. They seem to have thought that the respondents were
entitled to the benefit
of any doubt, as to the convincing nature of
the explanation and justification of their own action.”
[37]
It was submitted on behalf of Freightmax that as the individual
applicants were found in possession
of drums of oil that they should
not have been in possession of, then, Freightmax had established a
prima facie
case of misconduct on the part of the individual
applicants and therefore the evidentiary burden had shifted to them
and they were
therefore expected to present such evidence as would
exonerate them from blame, in particular, the individual applicants
were expected
to provide an exculpatory explanation as to where they
got the drums of oil and what ultimately happened to them. If they
failed
to discharge that burden satisfactorily, then the
prima
facie
case against them must prevail and their guilt, justifying
dismissal, must be taken to have been established.
[38]
I agree with these submissions and it follows from the authorities
referred to above that the
conclusions reached by the arbitrator in
this matter are reasonable in that she found the individual
applicant's testimony to be
deceptive and unreliable in particular
concerning both the consignment, the mysterious controller and the
fraudulent waybill. She
found that they proffered elusive,
irreconcilable and contradictory versions.
[39]
In other words, the individual applicants have failed to discharge
the evidentiary burden that
has shifted to them, then, the
prima
facie
case against them must prevail and must be taken to have been
established
[12]
.
In addition, there was no accusation made by the individual
applicants that the security personnel at Eskom had a reason to
falsely
implicate them. In my view, the arbitrator's conclusions in
this regard cannot be faulted.
[40]
The other ground of review is that Mochitele gave testimony that the
eye witnesses (which were
not even present at the arbitration hearing
and as such the evidence should have been classified as hearsay) saw
Mahlangu, the
forklift driver of Eskom, placing five drums in the
individual applicants' truck. It was then submitted that the
statement was
contradictory and that the arbitrator should have
disregarded that evidence as hearsay.
[41]
I have perused the record and found no area where Mochitele gave the
evidence that is being ascribed
to him as set out in the preceding
paragraph. I also perused the arbitration award and could not find an
area where the arbitrator
referred to this evidence that is being
ascribed to Mochitele in her award. I find this ground of review to
have no merit.
[42]
The final ground of review is that the arbitrator failed to consider
that the testimony of Mkhize
may have been manufactured in that the
incident occurred on 19 October 2015 and the arbitration hearing sat
on 27 July 2016 approximately
9 months after the incident which is a
long period for a person to produce conclusive and trustworthy
evidence about one particular
vehicle and incident when he resides
five minutes away from a national road where thousands of vehicles
pass every day and every
time.
[43]
I have again perused the record and I have found no area where Mkhize
was cross-examined about
him having manufactured his evidence nor was
he cross-examined about his memory. On record,
[13]
the arbitrator asked Mkhize whether he still remembered the date on
which he was approached by the investigators and he responded
by
saying that he did not remember the date very well. In my view, that
was an opportune moment to cross-examine Mkhize about the
issues
raised in this ground of review but instead the individual
applicants' representative referred Mkhize to his written
statement
[14]
and rested his case without testing his memory.
[44]
It appears that Mkhize made his statement on 08 December 2015. This
was two months after the
incident, not nine months referred to in
this ground of review. It is apparent therefore that the individual
applicants did not
challenge Mkhize's evidence, at the arbitration,
on the basis of the issues raised in this ground of review. In other
words, the
issues raised in this ground of review were not pursued by
the individual applicants at the arbitration. In
Fidelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and Others
[15]
the LAC stated the following:
"…
Whether
or not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively with
due
regard to all the evidence that was before the commissioner and what
the issues were that were before him or her. .
."
[45]
In my judgment, the issues that have been raised in this ground of
review were not properly made
available before the arbitrator at the
hearing for her determination. Therefore, it is inappropriate for the
individual applicants
to challenge this award based on these issues
that were not properly presented at the arbitration. Despite the
above, in paragraph
20 of her award, the arbitrator stated the
following:
"Irrespective of the
discrepancies in Mr Mkhize's testimony in terms of the details, which
are immaterial in my view, all the
key factors coupled with the
unauthorised diversion links the applicants to the suspicious
behaviour and supports the finding of
misappropriation."
[46]
This indicates that the arbitrator was alive to the discrepancies in
Mkhize's testimony but she
considered them as immaterial because
there was other corroborating evidence presented by Alteri that the
vehicle stopped at the
area identified by Mkhize on the particular
date and that evidence was not disputed by the individual applicants.
The individual
applicants actually confirmed that their vehicle
stopped at the area identified by Mkhize though according their
evidence, it was
for Maleka to relieve himself. Mkhize was just a
by-stander and had no reason to falsely implicate the individual
applicants. In
my view, the arbitrator's conclusions in this regard
are reasonable. Therefore, this ground of review must fail as well.
[47]
On the issue of costs, this Court has a discretion in terms of
section 162 of the LRA, to award
costs having regard to the
requirements of law and fairness. I am of the view that no order as
to costs should be made.
[48]
In the premises, I make the following order:
Order
[20]
The application for review is dismissed.
[21]
There is no order as to costs.
__________________
PM
Mosebo
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicants:
Union official
For
the third respondent:
Mr S Mabaso of Mabaso Attorneys
[1]
Act
66 of 1995 as amended.
[2]
Record
at p 130.
[3]
Record
at p53, l 10-20
[4]
Record
at p112.
[5]
Record
p114.
[6]
Record,
p68 para 19 of the arbitration award.
[7]
See:
Moshela
v CCMA and Others
(2011) 32 ILJ 2692 (LC) paras 29-32:
[8]
Record at p67 para 18.
[9]
Record
at p118.
[10]
(2011)
32 ILJ 2455 (LAC).
[11]
1910
TS 1347.
[12]
See:
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC) paras 31-33
[13]
Record
part B at p28 ll 10-20.
[14]
Record
at p126-128
[15]
(2008)
29 ILJ 964 (LAC) at para 103.