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[2019] ZALCJHB 246
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Sasol Limited and Another v National Bargaining Council for the Chemical Industry and Others (JR2153/16) [2019] ZALCJHB 246 (17 September 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR2153/16
In the matter between:
SASOL
LIMITED First
Applicant
NATIONAL PETROLEUM
REFINERIES
OF SOUTH AFRICA (PTY)
LTD Second
Applicant
and
THE NATIONAL
BARGAINING COUNCIL
FOR THE CHEMICAL
INDUSTRY
First
Respondent
ELEANOR HAMBRIDGE
N.O. Second
Respondent
DIRK
TREURNICH Third
Respondent
Date
heard: 7 June 2019
Delivered:
17 September 2019
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to review and set aside an arbitration
award under case number GAJB14037-15
issued by the second respondent
(the Arbitrator) in which she found that the dismissal of the third
respondent was procedurally
and substantively unfair. She ordered his
retrospective reinstatement to 5 May 2015 with no loss of benefits
prevailing at the
time of his dismissal. The second applicant, his
employer, was ordered to pay his back-pay in the amount of
R425 000-00 on
or before 5 October 2016.
[2]
The background to the dispute was set out in the Award as follows:
“
2.1
The Employee, a process controller, was dismissed for dereliction of
duties due to negligence, as well as fraud and falsification
(in
essence one allegation) pursuant to a joint disciplinary inquiry
during which the Employee, Buti Seyale (Buti) and Mildred
Baartman
(Mildred) were all found guilty and dismissed. The Employee had
launched an appeal against his dismissal, which appeal
was
unsuccessful and communicated as such on 5 May 2015. During the
arbitration hearing, in response to my question, I was advised
that
Buti had withdrawn his matter at the NBCCI and the dismissal of
Mildred was confirmed at arbitration under the auspices of
the NBCCI.
The
Employee earned R25000-00 per month at the time of his dismissal The
Employee had a clean record and 14 years of service.”
[3]
The third respondent was found guilty of the following charges at his
disciplinary hearing:
3.1
Fraud in that on 22 December 2014 whilst working at the second
applicant’s white products weighbridge he scanned a new
fingerprint and linked it to a truck driver who was not physically
present at the place where the scanning took place;
3.2
Falsification in that on 22 December 2014 whilst working at the first
applicant’s white products weighbridge, he intentionally
replaced a fingerprint in the dispatch system in order to release a
truck which was present for release on 22 December 2014; and
3.3
Dereliction of duty due to negligence in that he did not ensure to
retain transaction documents after releasing a fraudulent
transaction
on 22 December 2014.
[4]
The founding affidavit sets out the grounds of review alleging that
the Arbitrator:
4.1
Made material errors of fact;
4.2
Failed to make an appropriate assessment of all the evidence placed
before her;
4.3
Made material errors in law, which material errors in law constituted
a gross
irregularity and/or negligence in performing her duties;
4.4
Was grossly negligent, alternatively committed misconduct in relation
to her
duties in that she disregarded some of the evidence before
her;
4.5
Was grossly negligent, alternatively committed misconduct in relation
to her duties
in that she placed too much reliance on some evidence
and disregarded other evidence, thereby failing to properly apply her
mind;
4.6
Failed to apply her mind to the criticisms and improbabilities
emanating from the third
respondent’s evidence;
4.7
Failed to apply her mind to the appropriateness of dismissal as a
sanction in the
context of the facts before her;
4.7
Failed to apply her mind to the continued employment relationship
particularly given
that the second applicant testified that the trust
relationship had irretrievably broken down, and where she had
concluded that
the third respondent had been guilty of negligence.
[5]
In the applicants’ supplementary affidavit, a new ground of
review is dealt with i.e. that
the Arbitrator descended into the
arena, and exhibited bias.
[6]
The parties prepared a pre-arbitration minute. Included in the common
cause facts are the following:
“
8.
On 22 December 2014 the applicant was stationed at the Natref
weighbridge, being the last checkpoint in respect of the process
by
which trucks load and collect fuel for transportation purposes (“the
process”).
9. The
applicant’s position within the collection process twice a day
is determined through the ball selection system. The
colour of the
balls determines the location of the applicant’s position in
the process during his shift.
10.
The process to be followed at the weighbridge is as follows:
10.1
the driver arrives at the weighbridge;
10.2
the driver hands his barcode to the operator;
10.3
the operator captures the barcode onto the computer system;
10.4
the computer system verifies:
10.4.1
the transaction in question as it appears on the bar code;
10.4.2 the weight
of the truck in relation to the quantity of fuel loaded and a mass of
80 kg for the driver;
0.5
the operator verifies the transaction by capturing his fingerprint;
10.6
the driver must then verify the transaction by capturing his
fingerprint. After the driver’s
finger print has been captured
or overrode, the necessary proof of delivery documents are printed
four copies of each;
10.7
the applicant signs all the copies and provides them to the driver
for countersignature;
10.8
the driver signs all the documents and provides two copies to the
applicant;
10.9
the applicant already closed the transaction by printing the
documents;
11.
The barcode is generated and sent to the driver’s mobile
telephone.
12.
The details of the barcode include:
12.1
the driver’s name
12.2
the driver’s identity number;
12.3
the registration numbers of the driver’s vehicle including any
horse, trailer and pups;
12.4
the period during which the driver is entitled to participate in the
process;
13. It is responsibility
of the person at the inspection truck stop to verify the identity of
the driver and the license plate of
the vehicle.
14. The details of the
barcode are synchronized with the respondent’s system and once
the barcode is scanned, the process
is initiated.
15. The applicant was off
duty on 21 December 2014.
16. On 22 December 2014:
16.1
the applicant reported for duty at 05:05:42;
16.2
the applicant, through the random selection process, was stationed at
the weighbridge;
16.3
at approximately 06h06 the applicant suspended the driver due to the
driver’s failure to return
the documentation to the applicant;
16.4
at 06h22 Neels Wilson (“Wilson”) moves the schedule of
the barcode;
16.5
the barcode number *77393437* belonged to a Unitrans driver Tawanda P
Mubayiwa (“Mubayiwa”)
16.6
Unitrans confirmed that Mubayiwa was allocated to the vehicle with
registration number CK55GK GP,fleet
number 47101.
16.7
Unitrans confirmed that the vehicle with registration number CK55GK
GP, fleet number 47101 was in Klerkdorp
at the time of the incident
in question.
16.8
The vehicle at the weighbridge which caused the suspension of
Mubayiwa was a Unitrans vehicle with
fleet number 4613 or 4615.
16.9
At llh43, Wilson loads the latest version of the driver and
un-suspends the driver.
17.
All entries captured on the system are logged.
18.
On a daily basis, a function is performed by the respondent in terms
of which the
supporting documentation in respect of all processes is
correlated with the printout of all transactions to ensure that all
supporting
documentation is properly accounted for.”
[7]
Given the approach taken by the applicants in this application, it is
important to emphasis the
trite distinction between an appeal and a
review. The Court is not dealing with appeal grounds but with whether
any irregularities
or errors by the Arbitrator led to an award that a
reasonable arbitrator could not make. In the matter of
Head
of Department of Education v Mofokeng and Others
[1]
the Labour Appeal Court (LAC) set out the test thus:
“
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the enquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the enquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will
ex
hypothesi
be material to the
determination of the dispute. A material error of this order would
point to at least a prima facie unreasonable
result. The reviewing
judge must then have regard to the general nature of the decision in
issue; the range of relevant factors
informing the decision; the
nature of the competing interests impacted upon by the decision; and
then ask whether a reasonable
equilibrium has been struck in
accordance with the objects of the LRA. Provided the right question
was asked and answered by the
arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity or
error material to the determination
of the dispute may constitute a
misconception of the nature of the enquiry so as to lead to no fair
trial of the issues, with the
result that the award may be set aside
on that ground alone. The arbitrator however must be shown to have
diverted from the correct
path in the conduct of the arbitration and
as a result failed to address the question raised for
determination.”
[8]
In this case, the Arbitrator found that the employer had not
discharged its onus to prove that
the third respondent was grossly
negligent. Central to her finding was the issue of whether a rule
existed pertaining to positive
identification before changing a
fingerprint of a driver at the weighbridge. The arbitrator stated in
material part of her Award
the following:
“
Although
Dalina
[2]
had testified that the
rule pertaining to positive identification before changing a
fingerprint was communicated by herself in
an e-mail during July
2014, such email did not form part of the bundle of documents and on
more than one occasion during the course
of the arbitration hearing,
I had enquired as to its existence. I have carefully perused the
relevant part of the transcript of
the disciplinary enquiry and it
would seem that the e-mail relating to the rule requiring positive
identification of a driver of
a truck had been read into the record
at such disciplinary enquiry. However, on a careful analysis of this
extract, it would seem
the rule was made applicable to the truck stop
only and not also to the white weigh bridge, where the Employee had
worked. It was
however argued by the representative for the Employer
that the Employee considering his length of service and the fact that
he
had previously acted in a senior position, should have known
better and should have insisted on positive identification before
changing the fingerprint of the driver. The Employee, on the other
hand, had convincingly testified that he had assumed that the
identification of the truck driver had been verified previously, at
the inspection truck stop. It must be borne in mind that according
to
the minute of the pre-arbitration, it was common cause that it was
the duty of the person at the inspection truck to stop to
verify the
identity of the driver and the license plate of the vehicle.
Furthermore, it was common cause that the Employee worked
at the
white weigh bridge the day of the incident and before reaching the
white weigh bridge, a truck driver would have passed
the inspection
truck stop and the black weigh bridge and then only would have
reached the white weigh bridge, the last checkpoint
before exiting
the premises. I am thus inclined to accept the version of the
employee and in my opinion, his oversight to not insist
on positive
identification could hardly be termed gross negligence, but
negligence at most. It was also the version of the Employee
that the
truck driver had presented him with a barcode upon which he had acted
and that the barcode implies that the identity of
the driver had been
verified at the truck stop. It was further common cause that the
Employee had suspended the driver on the system
and also alerted two
of his superiors to the incident and furthermore, it was also common
cause that the Employee had alerted his
Employer as to another
suspicious incident, also involving Buti and Mildred, which had
occurred on 30/31 December 2014. These actions
of the Employee are
indicative of an Employee attempting to mitigate the damages of the
Employer and cannot be construed a dereliction
of duties amounting to
gross negligence.”
[9]
The extract referred to by the Arbitrator was read out at the
disciplinary enquiry, and recorded
in the transcript of the enquiry
as follows:
“
TAU
NKITSENG: Yes, it is dated 25 June 2014 and it was emailed, sent to
the entire personnel at dispatch as high importance, it
says four new
finger scanners, fingerprint scanners have been now ordered from
….[inaudible] Sons, we sincerely hope that
this will resolve
problems encountered at truck stop and work….[inaudible] with
immediate effect, should the driver experience
difficulty with his
finger at the truck stop and no volume allocation can be done due to
fingerprint not reading by the scanner,
a copy of the drivers ID must
be obtained and certified and positive identification must be done,
ID copy to be attached to the
barcode before requesting the driver to
obtain a manual volume allocation when arriving at the weighbridge.
No
manual volume allocation will be done without a copy of driver’s
ID attached to the barcode and I need to quote what has
been said
there, it has been good to trust but it is better to check. Do you
know if the person in front of you is the person you
think it is,
currently we are investigating the possibility of installing an
application for manual volume allocation at the truck
stop to prevent
this action from occurring at the weighbridge. Please take note
that once a meter entry had been done for
a vehicle and it has been
found that the volume allocation is incorrect another manual volume
allocation cannot be done, this results
in a data disturbance on the
NDMS and will not be accepted therefore a zero load must be created
and the whole process starting
from the beginning, thanks for your
cooperation.”
[10] In
the Court’s view, the failure of the company to produce the
actual email at the arbitration in the
face of a denial by the third
respondent that he received it was reasonably noted by the
Arbitrator, despite the reading out of
the extract from the
disciplinary enquiry. The email itself had it been produced as
requested by the Arbitrator, would have established
who the
recipients of it were. In any event, the content of the email as set
out above suggests that if any problem at the truck
stop regarding
the driver’s identity occurred, it would be apparent at the
weighbridge, as a copy of the ID would have been
attached to the
barcode when the driver arrived at this last stop. This was not the
case. Although the Arbitrator appears to have
been factually
incorrect regarding the truck stopping at the black weighbridge
before it reached the white, this was not material
to her
determination on the gross negligence charge.
[11] In
respect of the charge of ‘falsification or fraud’, the
Arbitrator stated as follows:
“
As
to the allegation of fraud and falsification of documents, this is
inherently the same allegation and was agreed to as such in
the
opening and closing argument of the Respondents. I understood the
case of the Respondents to be that the Employee had changed
the
fingerprint of the truck driver without positive identification and
the subsequent failure by the Employee to secure the delivery
documents as completed by the truck driver the day of the incident
constituted fraud and falsification of documents. Since the
Employer
failed to prove all the elements of fraud, which constitutes a
misrepresentation made intentionally causing actual or
potential
prejudice, I am persuaded to find that the Employer had failed
to discharge the onus that any fraud and/or falsification
was indeed
committed by the Employee. The fact that the Employee had initially
indicated that the truck driver had failed to sign
the delivery notes
in his report and subsequently said that the driver had driven off
with such documents, does not, in my opinion,
constitute a material
contradiction, nor does it constitute a had suspended the truck
driver on the system and also alerted his
Employer to the situation
at hand. The Employee cannot be held responsible for the fact that
the truck driver was subsequently
unsuspended on the system by one
Neels.”
[12] It
is necessary to repeat the agreed common cause facts in the
pre-arbitration minute relating to the job
of the operator at the
weighbridge which reads as follows:
“
10.
The process to be followed at the weighbridge is as follows:
10.1
the driver arrives at the weighbridge;
10.2
the driver hands his barcode to the operator;
10.3
the operator captures the barcode onto the computer system;
10.4
the computer system verifies:
10.4.1 the
transaction in question as it appears on the bar code;
10.4.2 the weight
of the truck in relation to the quantity of fuel loaded and a mass of
80 kg for the driver;
10.5
the operator verifies the transaction by capturing his fingerprint;
10.6
the driver must then verify the transaction by capturing his
fingerprint.
After the driver’s finger print has been
captured or overrode, the necessary proof of delivery documents are
printed four
copies of each
;
10.7
the applicant signs all the copies and provides them to the driver
for countersignature;
10.8
the driver signs all the documents and provides two copies to the
applicant;
10.9
the applicant already closed the transaction by printing the
documents;”
[13]
The testimony of the third respondent reflects that he did his duty
as set out in the agreed facts minute.
Any error he may have made
when overriding the finger print, i.e. the leaving out of a full
stop, could not reasonably be determined
as a basis for finding that
he had been involved in fraud. His actions in alerting his superiors
when the driver drove off without
signing the documents belie such
intent. It was not disputed that the booms were not working thus the
driver was able to drive
off unaided. When asked why the third
respondent would have alerted his superiors if he was involved in
fraud or falsification,
Deline Groenewald was unable to provide an
explanation.
[14]
Having considered the record before the Arbitrator, I do not find
that any mistakes of fact by the Arbitrator
could have led me to a
prima facie
finding of unreasonableness in this review. Nor
can it be said that she misconceived the nature of the enquiry. The
third respondent
had been suspected of being part of a syndicate
stealing the applicants’ products along with the two other
employees who
were dismissed and he was charged with them in the same
disciplinary enquiry. His sounding of the alarm and suspension of the
driver
after the truck driver left with the load was not disputed in
evidence at the arbitration nor was it explained why one Neels, also
an operator to whom he reported the problem, subsequently unsuspended
the driver on the system. Neels was not present to testify
at the
arbitration.
[15]
In addition to the above, I do not find any basis to discern that the
Arbitrator was biased in her interaction
with the parties. Her
conduct was well within the parameters of her function as set out in
section 138(1) of the Labour Relations
Act
[3]
(LRA).
[16]
The arbitrator found that the third respondent had been negligent ‘at
most’ in his failure to
ensure that he retained the copies of
the documentation in a situation in which the driver drove off
without returning same. She
made this remark in the context of
finding that the third respondent was not grossly negligent as
charged. She took into consideration
that the third respondent had a
long employment relationship with the applicants and a clean
disciplinary record. It was submitted
that given that the Arbitrator
had made the statement regarding negligence, she should not have
awarded reinstatement. In as far
as this remedy is concerned, the
Constitutional Court reiterated in
SA
Commercial Catering and Allied Workers Union and Others v Woolworths
(Pty) Ltd)
[4]
that
:
“
[46]
Reinstatement must be ordered when a dismissal is found to be
substantively unfair unless one of the exceptions set out
in s 193(2)
applies, namely that the affected employees do not wish to continue
working for the employer; the employment relationship
has
deteriorated to such a degree that continued employment is rendered
intolerable; it is no longer reasonably practicable for
the employees
to return to the position that they previously filled; or the
dismissal is found to be procedurally unfair only.”
[17]
Arguments made before the Arbitrator on behalf of the applicants
regarding reinstatement were premised on
the guilt of the third
respondent, i.e. that he was grossly negligent and had committed
fraud and that the trust relationship had
irretrievably broken down.
However absent guilty findings in respect of the charges against the
third respondent, no objective
basis was established by the
applicants to show that reinstatement would be intolerable or
impracticable.
[5]
Given that the
dismissal was found to be substantively unfair, there is no need for
me to consider the issue of procedural unfairness.
[18] In
all the circumstances, and taking into consideration the costs
incurred by the individual third respondent
in opposing the review, I
make the following order:
Order
1.
The review application is dismissed with
costs.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
For the Applicants:
Instructed by:
Fluxmans
Inc
For the Third Respondent:
G Gibson
Instructed
by:
Senekal
Simmonds Inc
[1]
(2015)
36 ILJ 2802 (LAC) at para 33.
[2]
Dalina
Groenewald was the Company’s witness.
[3]
Act
66 of 1995 as amended.
[4]
(2019)
40 ILJ 87 (CC).
[5]
See:
Sasol
Nitro v National Bargaining Council for the Chemical Industry and
Others
(2017)
38 ILJ 2322 (LAC).