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[2019] ZALCJHB 211
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Mkwaam (Pty) Ltd t/a Engen Barbeque Downs v Dispute Resolution Centre for the Motor Industry Bargaining Council and Others (JR1840/18) [2019] ZALCJHB 211 (29 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 1840/18
In the matter between:
MKWAAM (PTY) LTD t/a
ENGEN BARBEQUE
DOWNS
Applicant
And
DISPUTE RESOLUTION
CENTRE FOR THE MOTOR
INDUSTRY BARGAINING
COUNCIL
First
Respondent
N RAFFEE
N.
O
Second
Respondent
MNGWATO SAM LEKGAU
Third
Respondent
Order:
28 May 2019
Reasons for
Order:
29 August 2019
REASONS FOR ORDER
TLHOTLHALEMAJE,
J
[1]
On
28 May 2019, this Court issued an order reviewing and
setting aside the arbitration award issued by the Second Respondent
(the Arbitrator) acting under the auspices of the First Respondent
(MIBCO). The arbitration award was substituted with an order
in terms
of which the dismissal of the Third Respondent (Mr Lekgau) by the
Applicant was found to be substantively fair.
[1]
[2] Despite
the review application being unopposed since it was initially filed
and delivered in September 2018, Lekgau appeared in person at
the hearing of the application. Following submissions made by
Mr
Crawford on behalf of the Applicant, the Court was satisfied that
indeed the review application was properly served on Lekgau.
The
Court further found no basis upon which the proceedings could be
postponed to enable Lekgau to file his answering affidavit.
[3] The
facts leading to the dismissal of Lekgau are fairly common cause as
summarised as follows;
3.1
Lekgau commenced his employment with the Applicant on
10 September 2012
as a Petrol Attendant.
3.2
He was dismissed on 22 March 2018 on account of allegations of
misconduct related
to his failure to obey an instruction to attend a
fuel placement training, which had been rescheduled on at least three
occasions
over a period of three months.
3.3
The facts leading to the dismissal arose in December 2017, when
Lekgau
in the performance of his duties erroneously filled incorrect
fuel into the vehicle of a customer. The error resulted in damages
to
the customer’s vehicle, necessitating repairs which were borne
by the Applicant in the amount of R2 250.00.
3.4
Rather than subjecting Lekgau to discipline, the Applicant gave him
an election
in December 2017 to either be disciplined and
dismissed, or to pay the costs of the repairs and undergo a fuel
placement
training at his own expense. The
training was meant to afford Lekgau an opportunity to enhance his
skills in order to prevent any
future similar errors when dispensing
fuel to customers.
3.5
Despite
Lekgau having elected to undergo training and to repay the repair
costs, and further despite such training being arranged,
he failed to
attend it, resulting in a disciplinary enquiry in respect of the
charges that led to his dismissal.
[2]
3.6
Aggrieved with his dismissal, Lekgau referred an unfair dismissal
dispute to
MIBCO. The dispute came before the Arbitrator on
11 July 2018.
[4] Evidence
on behalf of the Applicant at the arbitration proceedings was led
by
Mr Banie Buys (Buys), and may be summarised as follows;
4.1 After
the incident took place in December 2017, and after Lekgau had
made
an election, management decided that the training should be
scheduled for January 2018. This was also meant to assist Lekgau
at that time of the year, so as not place an undue financial burden
on him.
The fee of R700 (Seven Hundred Rand) was a
prerequisite for the commencement of the training, and these terms
were explained
to Lekgau, who had acknowledged same.
4.2 Towards
the end of January 2018, Lekgau approached management and
requested
that the training be postponed on account of his financial
hardship. This request was acceded to and the training was
rescheduled
for a date in February 2018.
4.3 Before
the training could take place in February 2018, Lekgau
approached
management and again pleaded financial hardship, and
requested that the training be postponed yet again. The applicant
acceded
to the request and postponed the training to a date in
March 2018.
4.4 In
March 2018, Lekgau approached management for a loan, which was
then granted
to him. At approximately 11:00 on the date of the
scheduled training in March 2018, an official from the training
centre telephoned
Buys and informed him that Lekgau had arrived late
for the training, but was unwilling to pay the requisite training fee
to resume
training. Attempts by Buys to speak to Lekgau proved
unsuccessful.
4.5
At
some point, Buys had asked Lekgau about what he did with the loan
that was given to him. His response was that he had used it
for
electricity fitments in his household.
[5] Lekgau’s
evidence before the Arbitrator was that;
5.1 He
had approached the training facility and was informed that a fee of
R700.00
was required before he could be permitted to undertake the
training. He stated that he was not aware that he had to pay for the
training.
5.2 He
had then on the same date returned to the Applicant’s premises
and requested
that he be granted a loan to pay for the training.
Despite having made an undertaking that he will repay the amount,
management
refused to grant him the loan on the basis that he still
had a debt arising from the repairs done to the customer’s
vehicle.
5.3 He
confirmed that the initial training was scheduled to take place on
12 February 2018,
but was postponed at his request due to
his financial position.
5.4 He
reiterated under cross-examination that he was not aware prior to the
training
that he had to pay, and contended that he only became aware
on the date that he attended at the training venue.
[6]
The
Arbitrator in the light of the above evidence concluded that the
dismissal of Lekgau was procedurally fair but substantively
unfair.
The Arbitrator had regard to the provisions of section 138(6)
[read with section 188(2)] of the Labour Relations
Act (LRA)
[3]
and the Codes of Good Practice, and accepted that;
a) On
the common cause evidence, Lekgau had filled the incorrect
fuel into
the customer’s vehicle which had resulted in damages in the
amount of R2 250. 00 which was paid by the Applicant.
b) Following
the incident, Lekgau was given an election to attend
a fuel placement
training as an alternative to dismissal.
c) The
Applicant had indeed on no less than three occasions scheduled
the
training on behalf of Lekgau and that on those occasions, the latter
had failed to attend the training.
d) A
loan amount R300.00 was granted to Lekgau in respect of his costs
for
the training, but he had however utilised the loan amount for other
purposes.
6.1 The
Arbitrator however concluded that the evidence clearly showed that
Lekgau
had financial difficulties and the Applicant ought to have
taken that factor into consideration when deciding to discipline and
dismiss him.
6.2 This
was because Lekgau had a long service and a
clean
disciplinary
record, and therefore a dismissal was not appropriate, particularly
since he was not wilful in refusing to attend the
training.
6.3 Lekgau
did not attend the training in the light of his financial
circumstances
which ought to have been taken into account, and his
dismissal demonstrated a lack of sympathy on the part of the
Applicant.
6.4 The
Arbitrator further concluded that the fact that another employee in
Lekgau’s
position was able to pay for the costs of the training
is not a reason enough to hold that Lekgau could have accomplish the
same.
The Arbitrator in the end held that the dismissal was
substantively unfair and further found that reinstatement was an
appropriate
remedy in the circumstances.
[7] In
seeking to have the arbitration award reviewed and set aside, it was
submitted on behalf of the Applicant that;
7.1. The
Arbitrator committed a reviewable irregularity in concluding that it
was not sympathetic
to Lekgau’s circumstances, considering that
evidence was placed before her that demonstrated that Lekgau was paid
a 13
th
cheque in December 2017; had received an
incentive bonuses in January and February 2018; the fuel
placement training
was delayed until March 2018 in order to
accommodate his financial circumstances; and lastly, that Lekgau was
paid other benefits
in December 2017.
7.2. Taking
into account this evidence, it was submitted that Lekgau was provided
with sufficient
opportunities to comply with the training
requirements, and there was thus no basis for a conclusion that the
Applicant was not
sympathetic to his personal circumstances.
7.3. The
Arbitrator committed a reviewable irregularity in reinstating Lekgau
back into its employ.
The contention was that the reinstatement order
is tantamount to usurping the Applicant’s prerogative in
determining its
own rules of discipline in the workplace.
7.4. The
Applicant further contended that reinstating Lekgau in circumstances
where he had failed
to comply with the training requirement was
unreasonable, taking into account the nature of the work that he was
or would be entrusted
with, and further the negative effect that the
reinstatement would have on other employees in similar circumstances
as him.
7.5. The
Arbitrator committed a reviewable irregularity in failing to take
into account the importance
of the rule infringed and the seriousness
of the misconduct, in that the incorrect filling of fuel had the
potential to cause financial
and reputational damage to the
Applicant.
7.6. The
Arbitrator mis-applied the provisions of the Code of Good Practice
particularly since
Lekgau was aware of the existence of the rule;
that the rule was consistently applied, and that the rule was
fundamental to the
Applicant’s business.
[8]
The
main enquiry in review proceedings is whether the arbitration award
sought to be reviewed and set aside, can be said to fall
within the
bounds of reasonableness, taking into account the totality of the
evidence that placed before the arbitrator.
[4]
In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[5]
it was emphasised that an allegation of an irregularity in the
proceedings is not in itself sufficient to sustain a review of an
arbitration award, and that the applicant in review proceedings must
in addition thereto, demonstrate that the final result reached
was
unreasonable when considered in the context of the evidence placed
before the arbitrator.
[9]
Equally
so, it has been held that material errors of fact and/or the weight
attached to particular facts, is not on its own sufficient
to set
aside the arbitration award, unless the applicant can show that the
consequence of the misdirection resulted in an unreasonable
outcome.
[6]
This principle
entails that an arbitration award should not be easily interfered
with, unless the outcome reached by the Arbitrator
was entirely
disconnected from the evidence, or is not supported by any evidence
and/or involves speculation on the part of the
Arbitrator.
[7]
[10] It
needs to be reiterated that Lekgau was not dismissed for filling the
incorrect fuel into
the customer’s vehicle, but on the basis
that subsequent to that incident, and despite having elected to
undergo training
rather than facing a dismissal, he had nonetheless
failed to attend that training. What then remained before the
Arbitrator was
whether there was a fair reason for the dismissal, and
whether a sanction of dismissal was appropriate given the
circumstances
of the case.
[11] It
is my view that the grounds of review as submitted on behalf of the
Applicant have merit
when regard is had to the evidence before the
Arbitrator, and what the Arbitrator had accepted as uncontested or
probable. Lekgau
was afforded a lifeline after the incident related
to the filling of incorrect fuel in a customer’s vehicle. The
training,
which he had elected to undertake, was scheduled on no less
than three occasions in order to accommodate him. He was further
granted
financial assistance to undertake the training, and his
contention that he was not aware that he had to pay for such training
or
that he only became aware on the date of the training that he had
to make payment was clearly improbable. This was particularly
so
since Buys’ evidence that Lekgau was aware that he had to pay
for the training as far back as December 2017 remained
uncontested, or at most, the Arbitrator did not appear to reject that
evidence.
[12] The
fact that Lekgau was granted a loan and had used it for other
purposes than intended
for at most, evinces willingness on his part
not to attend the training, and the Arbitrator’s conclusions
that his financial
circumstances were not taken into account, or that
there was no wilfulness on his part in failing to attend the
training, are not
supported by the evidence placed before her.
[13]
It
is trite that an Arbitrator is enjoined to consider, evaluate and
analyse the evidence placed before him or her. The obligation
remains
to make credibility and probability findings, to indicate which
version was preferred, and why the other version was rejected.
[8]
[14] A
simple conclusion that Lekgau was not wilful in failing to comply
with the instruction
to attend and pay for the fuel placement
training, or that the Applicant was unsympathetic when the evidence
indicates otherwise,
can clearly not be a reasonable one. This is
particularly so since other employees in similar positions had
attended the training,
which was meant to ensure that similar errors
as committed by Lekgau were not repeated in the future, given the
consequences of
such errors, both in terms of financial costs and
reputation to the Applicant.
[15]
It
further follows that the decision by the Arbitrator to order
reinstatement in circumstances where Lekgau had intentionally refused
to undertake the training that would have assisted him in the future
performance of his duties could not have been a reasonable
decision.
His failure to attend that training clearly posed an operational
risk, which militated against any order of reinstatement.
[9]
[16] In
the end, the Arbitrator failed to consider the totality of the
evidence which was placed
before her. This irregularity had
culminated in an outcome which does not fall within a band of
reasonableness. This had necessitated
that the arbitration award be
reviewed, set aside and substituted with an order as issued by the
Court on 28 May 2019.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: J.D
Crawford of Crawford & Associates Attorneys
For
the Third Respondent: In
Person
[1]
Court Order dated 25 May 2019:
Having
read the documents and having considered the matter:
IT
IS ORDER THAT:
1.
The arbitration award issued by the second respondent under case
number MINT 61202N dated 11 July 2018
is reviewed, set
aside and substituted with an order that:
“
The
dismissal of Mr Ngwato Sam Lekgau was procedurally and substantively
fair.”
2.
There is no order as to costs.
[2]
Failing to carry out instructions from management. You were told to
attend fuel training course due to fuel mix. You did not
attend.
[3]
Act 66 of 1995 (as amended)
[4]
See
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24 (CC)
[5]
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC)
[6]
See
Herholdt
v Nedbank Ltd
(701/2012)
[2013] ZASCA 97
;
2013 (6) SA 224
(SCA);
[2013] 11 BLLR
1074
(SCA); (2013) 34 ILJ 2795 (SCA) at para [25] where in was held:
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in
the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to
amount to a
gross irregularity as contemplated by s 145(2)(a)(ii), the
arbitrator must have misconceived the nature of the inquiry
or
arrived at an unreasonable result. A result will only be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator. Material
errors of fact, as well as the weight and relevance to be
attached
to particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only of any consequence
if their
effect is to render the outcome unreasonable.
[7]
See
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC)
[8]
See
Stellenbosch
Farmers' Winery Group Ltd. and Another v Martell & Kie and
Others
2003 (1) SA 11 (SCA)
[9]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC);
(2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) (5 October 2007)