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[2020] ZALCJHB 64
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Premier Foods FMCG (Pty) Ltd v Lekokotla and Others (JR1907/18) [2020] ZALCJHB 64 (13 March 2020)
IN THE LABOUR OF SOUTH
AFRICA, JOHANNESBURG
Not Reportable
Case
No: JR1907/18
In
the matter between:
PREMIER
FOODS FMCG (PTY) LTD Applicant
and
MAROPENG
STEWARD LEKOKOTLA First
Respondent
COMMISSIONER
HARRY HAPPY MATHEBULA
N.O.
Second
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION Third
Respondent
Heard:
25 February 2020
Delivered:
13 March 2020
J U D G M E N T
NIEUWOUDT,
AJ
Introduction
[1]
The notice of set down was not served on the first respondent but
Rule 7(6) provides that the registrar need not notify a respondent,
who has not delivered an answering affidavit, of the set down.
[2]
The applicant applies to have the arbitration award issued by the
second respondent under case number MP3389-12 on 16 August 2018
reviewed and substituted with a decision that the first respondent’s
dismissal was substantively fair, alternatively, remitted for
arbitration by a commissioner other than the second respondent.
Legal
principles
[3]
The
applicant relied on a minority judgment
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[1]
in support of its submission that the award falls to be reviewed
because the second respondent had failed to apply his mind to
the
evidence. Much has been written about this topic but it will suffice
to refer to the well-known passage in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae
)
[2]
where the SCA decided that an award would only be unreasonable if it
is one that a reasonable arbitrator could not reach on all
the
material that was before the arbitrator. This is now settled law.
The Court held that:
‘
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 enquiry 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.’
Facts
[4]
The Court intends to apply this principle to the facts that served
before the second respondent. The first respondent had been employed
by the applicant as an AM supervisor. Part of his duties was
responsibility for sending out drivers and ensuring that drivers had
PDP licences.
[5]
On 10 February 2012 at approximately 04h00 a driver, Mr Zitha, who
did not have a PDP licence, left the premises in a company vehicle.
Later that morning he was involved in an accident in which
another
driver employed by the applicant, was killed. This led to the
applicant being charged. Only two of these charges are relevant
as
the third one had been withdrawn. These charges are:
5.1
“Gross negligence, in that you have allowed a Driver to operate
a company vehicle
without a valid PrDP, which resulted in the Driver
being involved in an accident in which a person was killed.”
5.2
“Gross insubordination, in that, after numerous correspondence
you still neglected
to put controls in place which would prevent
Drivers from operating company vehicles without a valid PrDP.”
[6]
In support of its case before the second respondent, the applicant
relied on three
emails and the evidence of two witnesses. The essence
of the emails is:
6.1
On 4 January 2012, a Ms Kukkuk informed the first respondent that Mr
Zitha must go for his
PrDP licence.
6.2
On the same date a Mr Fennel informed the first respondent that he
must ensure that no driver
without a valid PrDP drives any of the
trucks of the applicant and stated that “this cannot be
negotiable”.
6.3
On 18 January 2012, Ms Kukkuk requested first respondent to ask three
drivers,
including Mr Zitha to go for their PrDP licences and stated
that drivers may not go on route if they did not have one.
[7]
A Mr Brits, who had not been in the employment of applicant in 2012,
testified that
if an AM supervisor was told that a vehicle was being
driven by a driver without a PrDP, the vehicle should be stopped and
the
driver should be taken off the vehicle immediately. According to
him somebody from the applicant should have gone out to stop the
vehicle driven by Mr Zitha, even if they were only informed of the
fact some two hours after the truck had left the applicant’s
premises.
[8]
Mr Brits was not able to refer to a written policy in in support of
his evidence.
He also was not able to refer to the first respondent’s
job description in order to support it.
[9]
Mr Nkuna was employed as a security officer by an entity who rendered
security services
to the applicant. He testified that on 10 February
2012, after he had commenced his shift, he received a call from one
of the guards
that Mr Zitha had taken a track truck to a driver, who
had been supposed to be on duty but did not report. He then phoned
the applicant
to tell him what had happened and the applicant
responded according to the transcript “you can tell the guard
to continue
delivering the bread”. The court assumes that the
reference to “guard” is incorrect. This occurred at 06h35
and
the truck had left at 04h00. There is a form that requires that
the security at the gate must check that the driver had a licence,
but this never happened.
[10]
The first respondent testified that he had not placed Mr Zitha’s
name on the list of drivers
who were supposed to go out on that day.
The “DAILY DELIVERY AND RETURN CONTROL SHEET” for 10
February 2012 which,
for some reason appears in the record twice,
does not contain the name of Mr Zitha and appears to confirm the
statement. When Mr
Nkuna had phoned him, he used his private cell
number to try and call Mr Zitha but the latter’s phone was off
at the time.
He did not tell Mr Nkuna to tell Mr Zitha to continue
delivering bread. Under cross-examination it was put to him that he
should
have reported the incident to the depot manager, have asked a
representative to go and see whether he could get hold of Mr Zitha
or
that he should have used his own car to go and seek Mr Zitha.
Analysis
[11]
It is indeed unfortunate that a fatal accident was caused by Mr
Zitha. The question however is
whether, on the material properly
before him, the second respondent’s conclusion that the
dismissal of the first respondent
was substantively unfair, was one
that a reasonable Commissioner could not reach.
[12]
The appropriate point of departure for deciding this question would
be the charges.
[13]
There simply was no evidence before the second respondent that the
first respondent was guilty
of gross insubordination. There were
control measures in place; the security guards were supposed to check
the licences of the
drivers, but that did not happen on the morning
of the incident.
[14]
The charge of gross negligence is founded on the fact that the first
respondent had allowed Mr
Zitha to continue to drive the vehicle
without a licence, when that fact was brought to his attention at
approximately 06h30.
[15]
The first aspect that must be considered is the content of the
telephone conversation between
Mr Nkuna and the first respondent. In
her heads of argument, Ms Rogers, who appeared for the applicant,
submitted that the first
respondent had initially given a bare denial
of the fact that the telephone call had occurred. This does not
accord with the opening
statement of the first respondent; he stated
that he was not informed of the fact that Mr Zitha was driving the
truck by Mr Nkuna.
The error is probably occasioned by a
typographical error in the record which recorded the first
respondent, at the commencement
of his evidence, as saying that he
was “now disputing” the telephone call. It is clear that
it should have recorded
that he was not disputing the telephone call.
[16]
Mr Zitha and Mr Nkuna gave conflicting versions of the content of the
conversation. As Ms Rogers
correctly submitted, this brought the test
set out in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
[3]
into
play. This test enjoins a decision-maker who is faced with
conflicting evidence, to make findings on credibility, reliability
and the probabilities. It stipulates that, if all factors are
equipoised, the probabilities must prevail. The Court does not have
the advantage of having seen the first respondent or Mr Nkuna
performing the witness box. However, it is highly improbable that
the
first respondent would have informed Mr Nkuna to phone Mr Zitha in
order to tell the latter to continue with the deliveries.
Had that
been what the first respondent wished to occur, it would not have
been necessary for him to ask Mr Nkuna to call Mr Zitha,
just leaving
things as they were would have sufficed.
[17]
This leaves the evidence of Mr Brits. It is difficult to accept that
there was an obligation
on the first respondent to, stating it
broadly, physically cause Mr Zitha to stop driving. This obligation
is not recorded in any
policy and practically speaking, the only way
to achieve it would have been for somebody to go out with a
substitute driver, to
find the truck and to substitute Mr Zitha.
There was simply not enough evidence to prove this obligation.
[18]
The essence of the finding of the second respondent is that the
applicant “failed to proves
(sic) on a balance of probabilities
that the [first respondent] broke a company rule”. Although his
reasoning is not free
of errors, this conclusion is not one that a
reasonable decision-maker could not reach.
[19]
Accordingly, the following order is made:
Order:
1. The application for
review is dismissed.
___________________________
H. Nieuwoudt
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant: Ms
P Rogers
Instructed
by: Edward
Nathan Sonnenbergs Inc.
[1]
(2007) 28 ILJ 2405 (CC) at para 267 -268.
[2]
(2013) 34 ILJ 2795 (SCA) at para 25.
[3]
2003 (1) SA 11
(SCA) at para 5.