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[2020] ZALCJHB 195
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Lucerne Transport v TAWUSA and Others (JR 284/2019) [2020] ZALCJHB 195 (7 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JR 284/2019
In the matter between:
LUCERNE
TRANSPORT
Applicant
and
TAWUSA
First
Respondent
DAVID
TAZARURWA
Second
Respondent
HASSINA
DOCRAT N.O.
Third
Respondent
NBCRFLI
Fourth
Respondent
Heard:
30 January 2020
Order:
30 January 2020
Date
of reasons:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing-down is deemed to be
10h00 on 07
May 2020
JUDGMENT-REASONS
FOR ORDER
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award dated 24 January 2019 and issued under case
number RFBC 50814 wherein
the Third Respondent (the arbitrator) found
that the Second Respondent’s (the Respondent) dismissal was
procedurally fair
and substantively unfair and that he be re-instated
retrospectively.
[2]
On 30 January 2020 this matter served
before Court as an unopposed review application.
[3]
After considering the merits of the
application and the submissions made by the Applicant’s
counsel, I granted the following
order on 30 January 2020:
‘
1.
The review application is dismissed.’
[4]
On 3 February 2020, the Applicant requested
reasons for the order so granted. The transmission of this judgment
to the parties had
unfortunately been delayed by the national lock
down due to Covid-19.
The evidence adduced
[5]
The Respondent was employed by the
Applicant since September 2009 as a long distance driver. He was
dismissed on 27 March 2018 after
he was found guilty of misconduct.
The charges of misconduct levelled against the Respondent were as
follows:
‘
1.
Inciting violence by displaying gruesome and murderous activity on
your personal WhatsApp profile;
2.
Behaviour which caused the company name to
come into disrepute as this was brought to the company’s
attention by an anonymous
caller;
3.
Acting in bad faith.’
[6]
The issue to be decided by the arbitrator
was whether the Respondent’s dismissal was substantively and
procedurally fair.
[7]
In order to assess the arbitrator’s
findings and the grounds for review raised by the Applicant, it is
necessary to consider
the evidence adduced at the arbitration
proceedings as well as the charges which the Respondent faced.
[8]
No issue is taken with the arbitrator’s
finding that the disciplinary hearing was procedurally fair and there
is no need to
consider any aspect of procedural fairness.
The Applicant’s
case
[9]
The Applicant’s first witness, Mr
Henery, testified that he is the operations manager. He testified
about the disciplinary
hearing and explained that Mr Parsons was a
witness at the disciplinary hearing. Mr Henery gave a statement at
the disciplinary
hearing to the effect that the Applicant had
received an anonymous call regarding violence and gruesome activity
on the Respondent’s
phone. The caller did not want to be
involved in the matter. The Applicant checked the Respondent’s
WhatsApp status and found
two gruesome videos. The first video clip
was of two people, the one decapitating the other and in the second
video a person was
cutting up another person, whilst still alive. Mr
Henery stated that as a Lucerne driver, the Respondent represents the
Applicant
and he is the face of the Applicant. Anyone who had the
Respondent’s number, would be able to view these video clips
and
it violated everything the Applicant stood for. The video clips
were extremely offensive.
[10]
Mr Henery explained that it was a condition
for drivers to have a device on which the Applicant could communicate
with them and
these video clips were totally unacceptable. He
testified that he had an interview with the Respondent and the
Respondent had informed
him that he had received the video clips from
the ‘Sadex driver WhatsApp group’.
[11]
Mr Henery explained that the violent and
murderous video clips displayed on the Respondent’s WhatsApp
status had been reported
to the Human Rights Commission for further
investigation as the Applicant had believed that a murder was
committed. No response
was received from the Human Rights Commission.
[12]
In respect of the charges, Mr Henery
testified that the Respondent’s conduct brought the company
name into disrepute because
it was brought to the Applicant’s
attention by an anonymous caller.
Mr Henery
did not adduce any evidence on the remaining charges levelled against
the Respondent.
[13]
Mr Henery did not know who the caller was
and he did not know if it was a client of the Applicant. He testified
that a driver is
the face of the Applicant and is the image of the
Applicant out there.
[14]
In cross-examination Mr Henery reiterated
that the caller was anonymous and that the call so received was not
recorded.
[15]
It was expected of drivers to have a device
on which the Applicant via its controllers could communicate with
them. The device is
the personal property of the driver. Mr Henery
testified that the controllers who viewed the video clips were
shocked. He explained
that what an employee puts up in social media
can have a direct impact on the working relationship with his / her
employer.
[16]
In cross-examination Mr Henery explained
that the agreement was that the drivers must have a device that works
and on which the
Applicant could communicate with them to give them
instructions. He conceded that the only arrangement was for the
driver to have
a device that would enable the Applicant to
communicate with him, there were no rules or conditions to prescribe
the use of the
device. Mr Henery conceded that WhatsApp communication
is used as it is cheaper but the device is that of the driver which
he could
utilize as he wished and the Applicant has no control over
that. In the Respondent’s case, his WhatsApp status was brought
to the Applicant’s attention and even if it was his private
phone, it reflected on the Applicant and the Applicant must protect
other drivers and other employees from ‘
things
like this’
.
[17]
Mr Henery was asked in cross-examination to
explain how the Respondent incited violence and he responded that the
video clip was
violent and gruesome and having such a video clip on
ones WhatsApp status where other people could view it ‘
you
don’t know if it can lead to violence’.
[18]
It is evident from the record that Mr
Henery was unable to explain how, having the video clip on his
WhatsApp status, the Respondent
in fact incited violence. His answers
were speculative and evasive and at best his evidence was that it was
not normal to have
video clips like the ones the Respondent had on a
platform where anybody could see it.
[19]
The Applicant’s second witness was Ms
Rutenberg who testified as to the procedural aspects of the
disciplinary enquiry. As
already alluded to, the arbitrator’s
findings on procedural fairness are not challenged on review and the
evidence adduced
on procedural fairness is not relevant for purposes
of this review application.
[20]
The Applicant’s last witness was Mr
Parsons, a logistics planner. He testified that the Applicant’s
managing director
requested him to investigate after he received a
phone call from an anonymous caller about the video clips. He
investigated and
saw the video clips and felt disturbed as it was not
something he expected to see on someone’s phone he was
communicating
with. Mr Parsons confirmed that the drivers use their
own personal phones to communicate with the Applicant and that
WhatsApp is
used as a tool to communicate with the drivers. He
further testified that some clients also have the telephone numbers
of the drivers.
In cross-examination Mr Parsons conceded that the
statement that some clients had access to the video clips on the
Respondent’s
phone was just an assumed statement and that it
does not carry weight.
[21]
Mr Parsons testified that the video clip
was very gruesome and not an image that the Applicant wanted to
display.
[22]
In cross-examination Mr Parsons confirmed
that there are no terms and conditions attached to the use of a
driver’s phone,
the only condition is that the driver must have
a phone to stay in contact with the Applicant. The Applicant does not
provide the
drivers with phones.
[23]
It is evident from the transcribed record
that Mr Parsons did not testify regarding the charge of inciting
violence and acting in
bad faith.
[24]
The Respondent testified that he never
posted the video clips to anybody, it was on his personal phone that
he did not use for work
purposes. If the Applicant at any point
raised the issue about his personal WhatsApp status with him and
informed him that it was
not acceptable and had to be removed, he
would have complied. The Respondent explained that the clip was from
a movie and that
it had the potential of being viewed by many others.
[25]
In cross-examination no specific questions
regarding the charges of misconduct were posed to the Respondent and
his version that
the video clip was from a movie, was undisputed. The
Respondent was asked why he would put a clip like that from a movie
on his
phone and the purpose of the question was to understand the
Respondent’s mindset.
Analysis of the
arbitrator’s findings and the grounds for review
The test on review
[26]
I
have to deal with the grounds for review within the context of the
test this Court must apply in deciding whether the arbitrator's
decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
(
Sidumo)
as
whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court held that the arbitrator's conclusion must fall
within a range of decisions that a reasonable decision
maker could
make.
[27]
The
Labour Appeal Court (LAC) in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2]
affirmed the test to be applied in review proceedings and held that:
‘
In
short: A reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing and came to a conclusion
that is reasonable.’
[28]
The
review Court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with
each
of those factors and then determine whether a failure by the
arbitrator to deal with it is sufficient to set the award aside.
This
piecemeal approach of dealing with the award is improper as the
reviewing Court must consider the totality of the evidence
and then
decide whether the decision made by the arbitrator is one that a
reasonable decision maker could make
[3]
.
[29]
It is within the context of this test that
I have to decide this application for review.
The difficulties in
the Applicant’s case
[30]
Considering the test that I have to apply,
there is an obvious difficulty with the Applicant’s case in
that the Applicant
seeks to attack each and every finding of the
arbitrator on every piece of evidence. In fact, the issues raised by
the Applicant
and the purported grounds for review relied on are
rather grounds for appeal, disguised as a review. The Applicant has
taken a
microscopic approach and has dissected and set out every
piece of evidence and facts that it believes were not considered by
the
arbitrator.
[31]
The
test on review and the context within which it is to be applied is
that the review Court is not required to take into account
every
factor individually but must consider the totality of the evidence
and then decide whether the decision made by the arbitrator
is one
that a reasonable decision maker could make based on the facts placed
before him/her
[4]
.
[32]
The
LAC has confirmed that to do it differently or to evaluate every
factor individually and independently is to defeat the very
requirement of section 138 of the Labour Relations Act
[5]
(LRA) which requires the arbitrator to deal with the substantial
merits of the case and to do so expeditiously and fairly.
[33]
The ultimate question is whether
holistically viewed, the decision taken by the arbitrator was
reasonable based on the evidence
placed before her. To consider each
piece of evidence separately, will constitute a piecemeal approach
which is an approach that
this Court has to avoid. I have to consider
the totality of the evidence placed before the arbitrator.
[34]
Another difficulty in the Applicant’s
case is the heads of argument filed in support of this application.
The Applicant had
filed founding and supplementary affidavits,
setting out the purported grounds for review, with the difficulty of
a microscopic
approach that I have already alluded to, and
unfortunately the heads of argument filed by the Applicant is no more
than an almost
verbatim repetition of what is contained in the
aforesaid affidavits, with the addition of reference to the record.
[35]
The heads of arguments did no more than to
repeat the content of the affidavits and refer to specific pages of
the transcript. In
fact, so little effort was put in the preparation
of the ‘cut and paste’ heads of argument that the heads
of argument
contains phrases such as “
my
evidence was also that…”,
clearly
an averment made in an affidavit and not a legal submission as one
would expect in heads of argument.
[36]
In
Early
Bird Farm (Pty) Ltd v Food and Allied Workers Union and Others
[6]
the
LAC held that:
‘
In
this appeal the respondents' attorney was required to file heads of
argument succinctly setting out the points to be argued at
the
hearing of the appeal. A document purporting to be heads of argument
was timeously filed on behalf of the respondents. However,
it was of
such poor quality that it can hardly be described as heads of
argument. This court could not derive any assistance from
that
document nor was the attorney helpful to the court at the hearing of
the appeal. Properly prepared heads of argument play
an important
role in the adjudication of a matter - especially in an appeal court.
Useful heads of argument cannot be prepared
unless the person
preparing them has taken the trouble to study the record and has done
such research on the legal issues raised
by the matter or appeal as
may be necessary. Where heads of argument are drawn without the
necessary understanding of the facts
or the evidence in the record
and/or without doing the necessary research on the legal issues that
arise in the appeal, such heads
- and it is very easy to recognize
this in heads of argument - are bound to be of no assistance to the
court hearing the appeal.
That kind of conduct on the part of a
practitioner is unacceptable. A practitioner should not accept
instructions or a brief in
a matter if he does not have the time to
do justice to a client's case. It is inexcusable for a practitioner
to file heads of argument
the contents of which bear no relation to
the issues raised.
In
this case the document purporting to be heads of argument filed by
the respondents' attorney was totally unacceptable.’
[37]
In
Minister
of Safety and Security v Mashego and Others
[7]
it was held that
‘
Its
is not acceptable that practitioners should merely send up heads
which are not helpful, which do not cite authorities and which
suggest hurriedness of preparation. Counsel draw heads for the
purpose of assisting the court.’
[38]
In casu
the
heads of argument prepared by the Applicant’s legal
representatives failed to succinctly set out legal points, it shows
that no effort was put in to substantiate the grounds for review as
it merely repeated the content of the affidavit filed and it
contained no legal argument supported by authority and as such the
heads of argument were of little or no assistance to this Court.
I
have already alluded to the fact that the Applicant’s review
application was drafted in a manner that made it difficult
to
comprehend what the material grounds for review were as issue is
taken with each and every aspect and this is a case where the
heads
of argument should have assisted this Court in focusing, analyzing
and addressing the material grounds for review. This the
Applicant
dismally failed to do.
The arbitrator’s
findings on the charges of misconduct
[39]
The review test to be applied
in
casu
is a stringent and conservative
test of reasonableness.
The Applicant has
to show that the arbitrator arrived at an unreasonable result.
[40]
In
Bestel
v Astral Operations Ltd and Others
[8]
the LAC considered the limited scope possessed by this Court to
review an arbitration award and accepted that an arbitrator’s
finding will be unreasonable if the finding is unsupported by any
evidence, if it is based on speculation by the arbitrator, if
it is
disconnected from the evidence, if it is supported by evidence that
is insufficiently reasonable to justify the decision
or if it was
made in ignorance of evidence that was not contradicted. The LAC held
that:
‘…
.the
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be correct
by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[41]
In casu
the
arbitrator had to determine whether the Respondent’s dismissal
was substantively fair. The arbitrator referred to section
188(1) of
the LRA and found that the Respondent’s dismissal was
substantively unfair because the Applicant has failed to
prove on a
balance of probabilities that there was a fair reason for his
dismissal.
[42]
The arbitrator found that the Applicant
failed to produce sufficient evidence to justify the reason why the
Respondent was dismissed.
The Applicant took issue with this finding.
The gist of the Applicant’s case is that the arbitrator failed
to apply her mind
to the evidence and made findings that a reasonable
decision maker would not have made.
[43]
The Applicant’s case is that the
arbitrator’s decision is not one that a reasonable decision
maker could make as the
Applicant produced overwhelming evidence
relating to the misconduct.
[44]
The question which leaps out is whether the
Applicant produced evidence to support the charges of misconduct for
which the Respondent
was dismissed and whether the arbitrator made an
unreasonable finding when she found that the Applicant had failed to
do so.
[45]
It is trite and has been accepted by this
Court that an employer has the right to discipline its employees, of
course in a lawful
and fair manner. In fact, the disciplining of
employees is the duty and the prerogative of the employer and an
employer remains
dominis litis
in
deciding whether an employee is to be charged for misconduct and if
so, what the nature of the charges would be.
[46]
In
the event that an employee is dismissed for reasons related to
misconduct, the employer is bound by the election it has made,
as was
confirmed in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and others
[9]
where
the LAC held that:
‘
It
is an elementary principle of not only our labour law in this country
but also of labour law in many other countries that the
fairness
or otherwise of the dismissal of an employee must be determined
on the basis of the reasons for dismissal which the
employer gave at
the time of the dismissal.’
[47]
The point of departure is the charges of
misconduct that the Respondent was found guilty of and dismissed for.
The Respondent faced three counts of
misconduct
and the Applicant’s case
is that it produced overwhelming evidence relating to the misconduct,
which the arbitrator failed
to consider. I will consider the charge,
the evidence and the arbitrator’s finding in respect of each of
the charges in turn.
[48]
The first count of misconduct that the
Respondent faced was
that he had incited
violence by displaying gruesome and murderous activity on his
personal WhatsApp profile.
[49]
To support this charge as a fair reason to
dismiss the Respondent, the Applicant had to adduce evidence to show
that the Respondent
indeed incited violence and that he had done so
by displaying the gruesome and murderous activity on his personal
WhatsApp profile.
[50]
The arbitrator found that the Applicant was
unable to establish that the Respondent threatened or caused any
violence in the workplace
or to any staff members. The arbitrator
further found that the phone was the Respondent’s private phone
and absent any policy
or agreement entered into in respect of the use
of his personal mobile phone, the Applicant could not interfere in
that regard.
[51]
The arbitrator considered the Applicant’s
case that other employees were shocked and disturbed after viewing
the video clips,
but she did not attach much weight to it as no
grievance was lodged by any staff member and no material witness was
called to corroborate
this version.
[52]
The arbitrator found that the Respondent’s
version was not challenged.
[53]
The question is whether these findings were
supported by the evidence placed before the arbitrator. The
Applicant’s case is
that overwhelming evidence was produced
relating to the misconduct and in the founding affidavit the
‘overwhelming evidence’
is listed as “
the
gruesome content of the video, viewing such content is not normal,
the report to the Human Rights Commission, an anonymous call
was
received about the gruesome and violence showing the slaughtering of
a person whilst still alive, other individuals have the
Respondent’s
number and could see the video, the drivers are the face of the
company, the controllers communicate through
the phone and the
controllers who viewed the video were shocked, the WhatsApp
disclaimer set out certain rules and the witness
felt sick.”
[54]
The ‘overwhelming evidence’
listed by the Applicant is indeed evidence that was presented at the
arbitration proceedings,
but was not in support of the charges the
Respondent was found guilty on and dismissed for. The Applicant had
to show that the
Respondent indeed incited violence by displaying the
gruesome and murderous activity on his personal WhatsApp profile.
[55]
There was not a shred of evidence adduced
to show that the Respondent incited violence, which was the charge
that the Applicant
elected to formulate and to proceed with in the
internal disciplinary hearing. The evidence that
inter
alia
viewing of such content is not
normal, that it was reported to the Human Rights Commission or that
drivers are the face of the company
is not evidence to prove the
charge.
[56]
In his evidence Mr Parsons conceded that
his statement that other individuals had the Respondent’s
number and could view the
video clips was an assumption and it was
not supported or corroborated by any evidence.
[57]
The Respondent’s version that the
video clips were received from a drivers’ WhatsApp group and
that they were clips
from a movie that could be viewed by any person,
was not disputed.
[58]
It is evident from the transcript that the
Applicant had failed to adduce evidence to support the charge and the
arbitrator’s
finding to that effect, is not unreasonable and is
not disconnected from the evidence that was placed before her.
[59]
The second charge faced by the Respondent
was ‘behaviour which caused the company name to come into
disrepute as this was
brought to the company’s attention by an
anonymous caller’.
[60]
The arbitrator once again found that the
Applicant failed to produce evidence to support this charge as the
only evidence that was
adduced was that it was reported by an
anonymous person, who could or could not be a client and this brought
disrepute to the Applicant.
[61]
I fail to see how this finding is
unreasonable as there was no more evidence adduced to support the
charge. Not one of the witnesses
of the Applicant knew who the
anonymous caller was, they did not even know whether it was indeed a
client of the Applicant and
no evidence was adduced to show how the
name of the Applicant was brought into disrepute.
[62]
The Applicant should have adduced evidence
to show that its name was brought into disrepute by showing a
sufficiently close link
between the misconduct and the business and
the impact of the conduct on the Applicant’s business must be
sufficiently serious.
One would look in vain for any evidence to show
the impact of the Respondent’s conduct on the Applicant’s
business
and an allegation that a call was received from an anonymous
caller is not sufficient to prove that the Applicant’s name was
indeed brought into disrepute.
[63]
The last charge levelled against the
Respondent was that he acted in bad faith. It is evident from the
transcribed record that not
a single witness called by the Applicant
adduced any evidence in support of this charge.
[64]
The Applicant dismally failed to show that
the arbitrator arrived at an unreasonable result in that her findings
were
unsupported by any evidence or were
disconnected from the evidence. On the contrary, the arbitrator’s
findings were supported
by evidence that is sufficiently reasonable
to justify the ultimate decision.
[65]
It is not for this Court to interfere on
review in circumstances where the Applicant cannot escape the
consequences of its choice
of charges in the charge sheet and the
failure to adduce evidence to support and prove those charges.
[66]
Considering the evidence before the
arbitrator holistically, the arbitrator’s findings are not
disconnected from the evidence,
but in fact they are based on the
evidence presented (or the lack thereof) and her findings fall within
a range of reasonable findings.
Conclusion
[67]
In short: I must ascertain whether the
arbitrator considered the principal issue before her, evaluated the
facts presented and came
to a conclusion that is reasonable. I have
considered this question after perusal of the transcribed record, the
arbitration award
and the grounds for review raised by the Applicant.
The arbitrator’s findings fall within a band of reasonableness
based
on the evidence that was placed before her and there is no
basis for this Court to interfere with it on review.
[68]
It was for these reasons that the order was
granted on 30 January 2020.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
[1]
2007
28 ILJ 2405 (CC) at para 110.
[2]
(2014)
35 ILJ 943 (LAC).
[3]
(2014)
35 ILJ 943 (LAC) at paras 18 and 19.
[4]
(2014)
35 ILJ 943 (LAC) at paras 18 and 19.
[5]
Act
66 of 1995, as amended.
[6]
(2004)
25 ILJ 2135 (LAC)
para
50.
[7]
(
2003)
24 ILJ 1690 (LC).
[8]
[2011]
2 BLLR 129
(LAC) at para 18.
[9]
(2008)
29 ILJ 964 (LAC).