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[2019] ZALCJHB 346
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Air Liquide (Pty) Ltd v Nkgoeng NNO and Others (JR167/17) [2019] ZALCJHB 346 (29 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
JR167/17
In
the matter between:
AIR
LIQUIDE (PTY) LTD
Applicant
and
NKGOENG
N.N.O (AS ARBITRATOR)
First Respondent
THE NATIONAL BARGAINING COUNCIL FOR
THE
CHEMICAL INDUSTRY
Second
Respondent
JAN
BRITS
MDLULI
Third
Respondent
Heard
:
5
February 2019
Delivered
:
29 November 2019
Summary:
Application to review and set aside arbitration award.
JUDGMENT
RAPHULU,
AJ
Background
[1]
The Third Respondent was charged with misconduct for being absent
from
work, gross dishonesty and gross insubordination. He was found
guilty of gross dishonesty and was dismissed.
[2]
The First Respondent held that based on the evidence led, the Third
Respondent
was at work and his dismissal was accordingly
substantively unfair.
Submissions
on review
[3]
The Applicant contends that in light of the evidence led at the
arbitration
proceedings, the First Respondent’s award that the
Third Respondent’s dismissal was substantively unfair is not
one
that a reasonable decision maker could arrive at.
[4]
The Applicant contends that the Third Respondent was asked to report
at
the Applicant’s site office but never arrived at the site
office that day. Further that the Third Respondent worked at the
site
closely with his colleague Mr Robert Mashia (“Mashia”),
as they are the only two employees stationed at the site,
however,
Mashia testified that he never saw the Third Respondent that day. The
Applicant also contends that a large level of trust
was placed on the
Third Respondent and Mashia to report properly for work and to carry
out their duties, as they were the only
staff members permanently on
site.
[5]
An attendance register is present and is signed by the Third
Respondent,
but Mashia had it in his vehicle on the day in question.
The First Respondent accepted that based on the evidence led, there
was
a practice to complete the attendance register the following day,
and that since it was only the Third Respondent and Mashia completing
such attendance register, it is not possible that Mashia did not see
whether the Third Respondent had completed it on the day in
question
or not. However, the Applicant contends that this cannot be accepted
as proper evidence as a basis for a finding in the
absence of this
aforementioned ‘practice’ being put to any of the
Applicant’s witnesses.
[6]
The Third Respondent produced a document at the arbitration
proceedings
purportedly showing that his access card had been used at
the canteen on the day in question as proof of his presence at work,
but the Applicant contends that the access card could have been used
by another person and further that the Third Respondent failed
to
produce his witness which was called to testify on the authenticity
of this document.
[7]
The Third Respondent alleged that he worked at boiler four on the day
in question and that there was no paperwork to prove this because he
was working on foreign cylinders. The Applicant contends that
the
First Respondent held that the issue of foreign cylinders was
irrelevant, but then proceeded to make the point in his award
that
the Third Respondent could not adduce paperwork for his work on
boiler four because it was work on foreign cylinders.
Analysis
of evidence
[8]
On the one hand, I give consideration to the site in question; the
nature of the working
relationship between the Third Respondent and
Mashia; the fact that there is no paperwork to show for the work done
by the Third
Respondent on the day in question (and the purported
reason for this); the fact that both Mashia and Mr. Mohamed Kazim
(“Kazim”)
never saw the Third Respondent on the day in
question (despite communication to the Third Respondent which may
have been interrupted
but at the very least did get across to the
Third Respondent that Kazim was on site and looking for him).
[9]
On the other hand, I give consideration to the canteen report showing
that the Third Respondent’s
card was used there on the day in
question; the attendance register which was only completed after the
day in question purportedly
because of the practice that Mashia kept
it in the boot of his car; Mashia’s evidence that he did not
see whether the Third
Respondent had completed the attendance
register on the day in question - despite the fact that only he and
the Third Respondent
were stationed at the site in question; and the
photographs of the cylinders that were purportedly taken by the Third
Respondent
on the day in question.
Analysis
[10]
As regards my analysis of the canteen report and the Applicant’s
contention that the Third Respondent
failed to produce his witness to
prove the authenticity of this document, I give consideration to the
size and number of employee’s
on the site in question. If it
was indeed the case that another employee used the Third Respondent’s
access card to enter
the canteen, the relevant question is then, on
the probabilities, who this employee would be, particularly when the
Third Respondent
and Mashia are the only two employees on the site,
as contended by the Applicant. As no evidence was led by either
parties on the
veracity of the canteen report, I can only reasonably
conclude that the First Respondent was correct in finding that the
Third
Respondent used his access card to enter the canteen and that
he was at work on the day in question.
[11]
The review test is based on reasonableness. In my view, it is not
beyond the realm of reasonableness for
the First Respondent to rely
on the canteen report, and hold that the Third Respondent was at work
that day, and accordingly that
his dismissal was substantively
unfair.
[12]
Accordingly, I make the following order:
Order
1.
The application for review is hereby dismissed.
2.
There is no order as to costs.
_______________________
L. Raphulu
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
S. Snyman of Snyman
Attorneys
For the Respondent:
Shahista Carrim of Nabeel Noorbhai Attorneys