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[2019] ZALCPE 6
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JD Group (Pty) Ltd (A Division of Pepkor) t/a Joshua Doore v Plaatjies NO and Another (PR141/17) [2019] ZALCPE 6 (3 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
in
the labour court of South Africa, PORT ELIZABETH
Not
Reportable
case
no: PR141/17
In
the matter between:
JD
GROUP (PTY) LTD (A DIVISION OF PEPKOR)
T/A
JOSHUA DOORE
Applicant
and
PLAATJIES,
S
N.O
First
Respondent
SACCAWU
obo INGRID COETZEE Second
Respondent
Heard:
20 March 2019
Delivered:
3 April 2019
JUDGMENT
MAHOSI.J
Introduction
[1]
This is an application in terms of section 158(1)(g)
of
the Labour Relations Act (LRA)
[1]
read with section 33 of the Arbitrations Act
[2]
to review and set aside the arbitration award issued by the first
respondent (the arbitrator) under the auspices of the Tokiso
Dispute
Settlement (Tokiso), dated 16 May 2017 under case number TCR010674.
[2]
Prior to outlining the applicant’s case in detail and
considering the issues
that gave rise to the claim, it is necessary
to outline the facts that form the relevant background to the dispute
between the
parties
Material
background facts
[3]
The second respondent’s member (the employee) was employed by
the applicant
with effect from 1 January 2005. She was a Branch
Manager of the Russells (Joshua Doore) Fleet Street branch and she
was dismissed
on 10 March 2016 after being subjected to a
disciplinary hearing for misconduct. The charges that were leveled
against her were
as follows:
‘
Count
1 – Dishonest Behaviour
In
that during the period of September and October you received money
from customers Nogwaja with ID number 71…, Nompucuko
with ID
number 51… and Yekeni as per Lay-buy number 11610841 and you
failed to receipt the funds as per policy and/or you
have
misappropriated funds received from customers meant for lay-buy
payments.
Count
2 – Misconduct
In
that your actions/behavior during the period of September and October
2015 where you took money from customers and failed to
receipt, has
caused or may have placed the company name and reputation into
disrepute.’
[4]
Aggrieved by the employee’s dismissal, the second
respondent on behalf of the employee, referred an unfair dismissal
dispute
to the Commission for Conciliation, Mediation and Arbitration
(CCMA). However, the matter ultimately proceeded to private
arbitration
under the auspices of Tokiso because of the provisions of
the collective agreement between the applicant and the second
respondent.
[5]
Subsequently, the
arbitrator
issued an award in terms of which he found the
employee’s dismissal
substantively
unfair and ordered the applicant to pay
her compensation equal to her 12 months’
salary.
It is this award that
is the subject matter of this application.
Arbitration
and the award
[6]
The employee’s charges relate to incidents reported by
customers in which lay-by
transactions were initiated by making a deposit as part payment
of
the total cost, which deposits could not be traced. This resulted in
customers not receiving the items they supposedly bought.
The
applicant dismissed several employees, other than
the employee in this matter.
[7]
The applicant’s case is that the employee received money from
customers,
namely, Ms Nogwaja, Ms Nompuculo and Ms Yekeni without receipting it.
It is further alleged that the employee concealed
her
wrongful conduct by creating a
transaction and thereafter deleting it from the system.
[8]
At the arbitration, the applicant led evidence through oral testimony
of three
witnesses,
namely Mr Jarrod Smith, Mr Quinton Warries and Ms Yekeni. The
third respondent led evidence through the
oral testimony of the
employee. In addition, the parties submitted documentation, which was
accepted to be what it
purports to be.
[9]
On the question of whether the employee received money from the three
customers as charged,
the arbitrator considered the common cause fact
that there had been other potential suspects, two of whom had been
dismissed by
the applicant and one of whom had resigned. He found
that the employee was, at
best
for the applicant, one of the suspects and not the only suspect.
It was for this reason that the arbitrator
concluded as follows:
‘…
It
is my view that the probability that all customers only dealt with
the applicant when it concerns to the handing over of money
is
negated by the fact that three sales staff was implicated in the
initial investigation resulting in their dismissal and resignation
from the employ of the respondent. None of the three sales personnel
was called to testify in any proceedings including this tribunal.’
[3]
[10]
Ms Yekeni was the only witness who testified about the transaction
for which the employee was
charged. The arbitrator had the benefit of
observing her demeanor and made the
following observations:
‘
The
witness Yekeni did not give evidence during the disciplinary
proceedings of the applicant although her statement annexed as
page
82 in the Bundle “B” was submitted to this tribunal.
There are contradictions between the written and signed statement
in
her oral testimony during this tribunal. The witness had an
interpreter appointed for translation purposes. She gave evidence
with her hand covering her mouth and had to be requested to remove
her hand. Her demeanour during the tribunal, in my considered
opinion, did not enhance or support her credibility as witness. She
had a selective memory of the incidents and only referred/pointed
to
the applicant as the only person she interacted with when she came to
the premises of the respondent, whereas in her statement
which she
admitted signing, there is reference made to a Zanele and Lungi. Both
these sales staff were reported to and charged
by the South African
Police Services.’
[4]
[11]
The arbitrator found that it is more likely that the employee’s
involvement with the
customers in question was solicited for the purpose of creating sales
orders on the system and confirming information
with them. The basis on which he made this finding was on what he
referred to as the employee’s “limited proficiency
in
Xhosa.” The arbitrator also noted that the employee did not
deny that she offered assistance
to the customers as part of
her responsibility in her managerial
capacity.
[12]
The arbitrator regarded the applicant’s evidence relating to
the versions of Ms Nogwaja
and Ms Nompucuko to be hearsay evidence,
the basis of which appear in his award as follows:
‘…
The
fact that the Respondent referred to witnesses in their absence and
submitted oral evidence from the witnesses Smith and Warries
during
this tribunal on behalf of the two customers in my opinion can be
regarded as hearsay.
The
witness Warries referred to interaction with the customer Nogwaja as
well as the SAPS officers which was never corroborated
by
testimony/affidavit from neither of the parties mentioned in this
testimony. It is true that documents do not speak for themselves
and
need to be corroborated by oral testimony of the author(s) or
originator(s). It is also trite that neither of the respondent’s
witnesses viz. Smith and Warries were present when the alleged
infractions were allegedly committed by the applicant.’
[13]
The arbitrator drew an adverse inference in the applicant’s
failure to adduce direct evidence
and found that the evidence adduced
by the employee presented a more probable version of the events. For
that reason, the arbitrator
found that the applicant failed to
discharge the onus of proving, on balance of probabilities, the
employee’s misconduct
and the fairness of her subsequent
dismissal. The arbitrator further found that there was no evidence to
prove that the relationship
between the parties had broken down and
ordered that the employee be reinstated. It was on the basis of the
above that the arbitrator
found that the employee’s dismissal
was substantively unfair and he ordered that she be reinstated
retrospectively. Dissatisfied
with the arbitrator’s findings,
the applicant launched this applicant on the grounds that will be
dealt with hereunder.
The
Grounds for Review
[14]
The applicant’s submission was that the award is not one that a
reasonable
decision-maker could arrive at for the following reasons:
‘
7.10.1
The first respondent failed to comply with the provisions of the Act,
pertaining to the conducting of fair and proper arbitration
proceedings in terms of the Act;
7.10.2 Factual
findings made by the first respondent himself, in fact did not
correspond with the evidence and documents properly
placed before the
first respondent in this particular matter;
7.10.3
The first respondent exceeded his powers in terms of the Act;
7.10.4 The first
respondent did not properly and rationally and justifiably apply his
mind to the effects of the law in this
instance;
7.10.5 The first
respondent failed to afford the applicant a fair and proper hearing
in the circumstances and failed to properly
conduct the arbitration
proceedings in the circumstances;
7.10.6 The award
made by the first respondent is not justifiable in relation to the
reasons given for such award, such award
is nor rational or
justifiable in its merit or outcome; and is not an award a reasonable
decision-maker could arrive at;
7.10.7 The first
respondent fails to properly apply his mind and failed to have proper
consideration of the facts and the
law, in respect of the relief
afforded to the individual second respondent in this instance, entity
first respondent exceeded his
powers in this regard;
7.10.8
The first respondent fails to properly, justifiably and reasonably
determine and assess the evidence properly before
him in this matter,
and the relevant provision of the law.’
[5]
The
Test for Review
[15]
The arbitration award that is sought to be reviewed is one issued by
a private arbitrator pursuant
to a collective agreement between the
applicant and the second respondent. It follows that, in this matter,
the principles of review
as enunciated in
Sidumo
[6]
do
not find application. Private arbitration awards can be challenged on
review on the grounds set out in section 33(1)(b) of the
Arbitration
Act
[7]
as follows:
‘
(1)
Where-
(a)
any member of an arbitration tribunal has misconducted himself in
relation to his duties as arbitrator
or umpire; or
(b)
an arbitration tribunal has committed any gross irregularity in the
conduct of the arbitration proceedings or has exceeded
its powers;
or
(c)
an award has been improperly obtained, the court may, on the
application of any party to
the reference after due notice to the
other party or parties, make an order setting the award aside.’
[16]
The applicant seeks to review the award on the basis that the
arbitrator
committed a latent gross
irregularity in that he negated most of the evidence and
made no proper probability and credibility findings. According to the
applicant, there is simply no evidentiary basis on
which the
award can be sustained. The
applicant submitted that the arbitrator misconstrued
the issue of
onus and unduly and irregularly limited the
inquiry he was required to make.
[17]
In opposing this application, the second respondent’s
contention was that the
applicant’s
reliance on the latent gross irregularity as a ground of review flies
in
the
face of
Telcordia
Technology v Telkom SA Limited
[8]
where the Court stated as
follows:
‘
[85]
The fact that the arbitrator may have either misinterpreted the
agreement, failed to apply South African
law correctly, or had regard
to inadmissible evidence does not mean that he misconceived the
nature of the inquiry or his duties
in connection therewith. It only
means that he erred in the performance of his duties. An arbitrator
‘has the right to be
wrong’ on the merits of the case,
and it is a perversion of language and logic to label mistakes of
this kind as a misconception
of the
nature
of the inquiry
– they may
be misconceptions about meaning, law or the admissibility of evidence
but that is a far cry from saying that
they constitute a
misconception of the nature of the inquiry. To adapt the quoted words
of Hoexter JA:
It
cannot be said that the wrong interpretation of the Integrated
Agreement prevented the arbitrator from fulfilling his agreed
function or from considering the matter left to him for decision. On
the contrary, in interpreting the Integrated Agreement the
arbitrator
was actually fulfilling the function assigned to him by the parties,
and it follows that the wrong interpretation of
the Integrated
Agreement could not afford any ground for review by a court.
[86]
Likewise, it is a fallacy to label a wrong interpretation of a
contract, a wrong perception or
application of South African law, or
an incorrect reliance on inadmissible evidence by the arbitrator as a
transgression of the
limits of his power. The power given to the
arbitrator was to interpret the agreement, rightly or wrongly; to
determine the applicable
law, rightly or wrongly; and to determine
what evidence was admissible, rightly or wrongly.
Errors
of the kind mentioned have nothing to do with him exceeding his
powers; they are errors committed within the scope of his
mandate. To
illustrate, an arbitrator in a ‘normal’ local arbitration
has to apply South African law but if he errs
in his understanding or
application of local law the parties have to live with it. If such an
error amounted to a transgression
of his powers it would mean that
all errors of law are reviewable, which is absurd.’
[18]
In
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
[9]
the
Court stated that:
‘
[71]
The principle of party autonomy, stressed in
Telcordia
,
which requires a high degree of deference to arbitral decisions, and
which implicitly informed the approach of the Supreme Court
of Appeal
in the present matter, is not a weighty consideration against a
conclusion that the fairness requirement of section 34
is of
application to arbitrations.
Telcordia
itself, and
the authorities it referred to in emphasising the principle,
were matters which concerned errors of fact or law to
which the well-known and well-established principles governing
arbitrations
do apply. Procedural irregularities giving rise to
unfairness are, however, a horse of a different colour.
[72]
In my view, there is no reason why the fairness requirement of
section 34 of the Constitution
cannot co-exist with the requirements
imported by the provisions of section 33(1) of the Arbitration Act.
On the contrary, there
is every reason why co-existence should be
accepted: the fairness requirement in section 34 is part of a
fundamental constitutional
right incorporated into the Bill of Rights
and it is properly to be engrafted onto the principles applicable to
arbitrations.
[73]
This conclusion is in accordance with the principle that in
interpreting any legislation the
courts are enjoined to promote the
spirit, purport and objects of the Bill of Rights, including the
right to a fair and impartial
hearing guaranteed by section 34.’
[Footnotes omitted]
[19]
In this matter, there is no merit to the applicant’s submission
that the arbitrator
failed
to afford it a fair and proper hearing or that he exceeded his powers
in
terms
of the Act.
There
is nothing in the pleadings, the record or the heads of
arguments to suggest that the arbitrator ignored
the principles of
natural justice.
[20]
On the ground of latent gross irregularity, the employee submitted
that, albeit
rendered in the
context of a review of a statutory arbitration persued in terms of
section 145 of the LRA,
Herhold
[10]
remains relevant, insofar as it reaffirmed the
proper ambit of gross
irregularity as follows:
‘
[25]
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.’
[21]
There is nothing, in this matter, to show that the arbitrator
misconceived the nature of the
dispute before him. A proper reading
of the arbitration award evidences that the arbitrator considered
both the documentary and
oral evidence presented before reaching a
conclusion that the employee’s dismissal was substantively
unfair. I agree with
the employee that the arbitrator followed an
entirely logical process of reasoning.
[22]
It is my view that the applicant has not established any basis upon
which the Court
could find that the award is reviewable.
As such, the applicant failed to discharge the
onus
of establishing that the arbitrator
has
misconducted himself in relation to his
duties as arbitrator or umpire, committed any gross irregularity
in
the conduct of the arbitration
proceedings or has exceeded his powers.
There
is, therefore, no reason for this Court to interfere
with his award.
Costs
[23]
In terms of section 162 of the LRA, this Court has wide discretion in
awarding costs. The Constitutional
Court has reiterated in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others,
[11]
that costs orders should be made in accordance with the requirements
of law and fairness. In this matter, the requirements of law
and
fairness dictate that there should be no order as to costs.
[24]
In the circumstances, I make the following order.
Order
1.
The application to review
and set aside the arbitration award issued by the first
respondent
under the auspices of the Tokiso Dispute Settlement, dated 16 May 207
under case number TCR010674
is dismissed.
2.
There is no order as to costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For
applicant: Mr
Sean Snyman of Snyman Attorneys
For
third respondent: Advocate
F.E. Le Roux
Instructed
by: Wesley
Pretorius and Associates Inc. Attorneys
[1]
Act
66 of 1995, as amended.
[2]
Act
42 of 1965, as amended.
[3]
Index
to Pleadings, page 25
[4]
Index
to Pleadings, page 25
[5]
Index
to Pleadings, pages 16 to 17.
[6]
Sidumo
and
Another v Rustenburg Platinum Mine Limited and Others
[7]
Act
42 of 1965, as amended.
[8]
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA).
[9]
2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC)
[10]
Herholdt
v Nedbank Ltd
2013 (6) SA 224 (SCA).
[11]
[2018]
4 BLLR 323
(CC) at para 24.