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[2020] ZALCJHB 84
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Shan's Transport and Logistics Agency (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR 1626/2017) [2020] ZALCJHB 84 (25 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 1626/2017
In the matter between:
SHAN’S
TRANSPORT AND LOGISTICS
AGENCY
(PTY) LTD
Applicant
and
NATIONAL BARGAINING
COUNCIL FOR THE
ROAD
FREIGHT AND LOGISTICS INDUTRY
First
Respondent
J D SELLO
N.O
Second
Respondent
KLAAS
ISHMAEL MABASO
Third
Respondent
Enrolled:
5 May 2020
Delivered:
25 May 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by circulation
to the parties' representatives by email. The date and time for
hand-down is deemed to be …… on 25 May 2020.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award dated 23 June 2017 and issued under case number
GAEK 583-17 wherein
the Second Respondent (the arbitrator) found the
Third Respondent’s (Respondent) dismissal substantively and
procedurally
unfair and ordered the Applicant to pay him compensation
equivalent to ten months’ remuneration (R 89 000).
[2]
The Respondent opposed the application.
[3]
The matter was enrolled for hearing on 5
May 2020. In accordance with the provisions of the ‘Urgent
directive in respect of
access to the Labour Court’ dated 28
April 2020, which is applicable with effect from 4 May 2020 until the
end of the July
2020 recess, the parties agreed that this matter be
disposed of without oral argument. Both parties submitted
supplementary heads
of argument.
[4]
I have considered the papers filed as well
as the written heads of argument submitted.
Material background
facts:
[5]
The Applicant employed the Respondent on 15
September 2015 as a truck driver and he was dismissed on 18 January
2017 on the grounds
of incapacity due to ill-health or injury.
[6]
The Respondent referred an unfair dismissal
dispute to the First Respondent and he challenged the procedural and
substantive fairness
of his dismissal.
The evidence adduced:
[7]
The issue to be decided by the arbitrator
was whether the Respondent’s dismissal on the grounds of
incapacity was substantively
and procedurally fair.
[8]
In order to assess the arbitrator’s
findings, it is necessary to consider the evidence adduced at the
arbitration proceedings
as well as the reason that the Respondent was
dismissed for.
The Applicant’s
case
[9]
The Applicant’s first witness, Mr
Manyaka, testified that he is the operations manager and he explained
that the Respondent
was injured when he collected cargo at Makro on 6
August 2016 and fell from the truck. He broke his leg and was
hospitalised for
a period of a month and thereafter he recuperated at
home for another period of three to four months.
[10]
At some point in January 2017, the
Respondent came back to the Applicant’s premises with a letter
from his doctor stating
that he was fit for duty and he wanted to
resume his duties. Mr Manyaka was unable to produce a copy of the
doctor’s letter
as the Respondent took the letter back and it
was with him. Mr Manyaka testified that he saw that the Respondent
could not drive
long distance trucks and he offered the Respondent an
alternative position to work in the office and to do filing work. Mr
Manyaka
indicated that he would train the Respondent to work on the
computer but he indicated that he would do this at home and come
back.
Upon his return, the Respondent declined the alternative
position and said that he only knows how to drive and he stated that
he
did not want to work anymore but wanted the Applicant to pay him
his money.
[11]
Mr Manyaka testified that he then offered
to teach the Respondent how to do filing, but he insisted that he
could not accept the
alternative position. He referred to the
flexibility clause in the Respondent’s contract of employment
which provides that
an employee may be required to perform any
reasonable duties and that the nature and scope of the duties may be
altered or varied
by the employer from time to time. Mr Manyaka
stated that he never intended to terminate the Respondent’s
services, but rather
wanted to invoke the flexibility clause and
required of the Respondent to work in the office. After the
Respondent insisted that
he did not want the alternative position and
that he instead wanted his money, the Respondent was given a letter
of termination,
which he had agreed to and signed on 24 January 2017.
[12]
Mr Manyaka testified that after the
Respondent had refused to accept the alternative clerical position
that was offered to him,
he agreed to be paid in full upon the
termination of his services. In terms of the letter of termination,
the Respondent was to
be paid his full salary for January 2017 as his
notice period, he was not required to perform any duties after 18
January 2017
and in addition to his notice pay, he was paid a
severance package equal to a month’s salary. The letter
recorded that the
payments made were in full and final settlement of
all and any claims that the Respondent may have against the
Applicant, arising
out of his employment or the termination thereof.
[13]
The Respondent signed the letter and agreed
to the terms and conditions of termination, as set out in the letter.
[14]
In cross-examination the Respondent
disputed that he was offered any alternative position. Mr Manyaka
insisted that he had personally
offered the Respondent a position to
work in the office, as he was not fit to drive the Applicant’s
trucks. The Respondent’s
version was that he was not offered an
alternative position, but that he was merely handed the letter of
termination to sign.
[15]
Mr Manyaka disputed that the Respondent
showed him the documents dated 16 and 17 January 2017, from an
occupational therapist and
the Department of Labour, which he had
presented at the arbitration hearing for the first time. The
Respondent’s version
was that he had handed the documents to Mr
Manyaka personally.
[16]
The Applicant’s second witness was Mr
Mthombeni, the maintenance supervisor. He testified that when the
Respondent came back
to work, a first meeting took place wherein the
Respondent said that he had a letter which stated that he was fit to
perform light
duty and upon that the Applicant offered him office
work. The Respondent refused the offer of office work as he indicated
that
he was not trained to work on a computer.
[17]
A second meeting with the Respondent took
place subsequently and he asked to be offered a light vehicle to
drive. The Applicant
indicated that it would not be possible as the
bakkie was not working and the Respondent was unable to drive a big
truck as his
leg was not fully recovered. The Respondent left the
meeting and indicated that he would be back. Mr Mthombeni did not
attend any
other meetings with the Respondent.
[18]
In cross-examination the Respondent
disputed that the meeting took place.
The Respondent’s
case
[19]
The Respondent’s version was that he
went back to work on 3 January 2017 and met Mr Manyaka, who asked him
for a medical certificate.
He did not have the medical certificate
and Mr Mayaka indicated that the Applicant could not allow him to
work as they did not
know the Respondent’s condition and
fitness to work. The Respondent went to the doctor to get a medical
certificate, but
the doctor’s rooms were not yet opened after
the Christmas holidays.
[20]
The Respondent testified that he went to
see his physiotherapist on 16 January 2017 and he issued him with a
document indicating
that he could go back to work. His doctor also
confirmed that he could go back to work on 18 January 2017. He went
to work on 18
January 2017 and waited for Mr Manyaka. When Mr Mayaka
arrived, he took the documents from the Respondent and said that they
have
to wait for Ms Sarie du Toit (Ms du Toit). He waited and
subsequently he saw Ms du Toit and gave her the papers from the
medical
practitioners. Ms du Toit read the papers and took them to
the ‘boss’.
[21]
Mr Manyaka later told him that because of
his injuries, he could not drive a truck and that the Applicant had
decided to terminate
his contract. He was given a document to sign,
but requested to be afforded an opportunity to take it to his lawyer.
The Respondent
was told that without signing the document first, he
would not be given the document. He left for home. The next day he
went to
the bargaining council and he opened a case.
[22]
On 24 January 2017, he went to Ms du Toit
and she insisted that he would not be given the letter without
signing it. He signed the
letter of termination and left. He
testified that he was indeed paid the monies as per the termination
letter.
[23]
In cross-examination it was put to the
Respondent that Mr Manyaka offered him light duty work in the office
and the Respondent disputed
that.
Analysis of the
arbitrator’s findings and the grounds for review
The test on review
[24]
I
have to deal with the grounds for review within the context of the
test that 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]
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.
[25]
The
Labour Appeal Court (LAC) in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[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.
[26]
The review 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 based
on the facts placed before him / her.
[27]
The review test is a stringent and
conservative test of reasonableness.
The
Applicant has to show that the arbitrator arrived at an unreasonable
result.
[28]
In
Bestel
v Astral Operations Ltd and Others
[3]
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.’
[29]
It is within this context that the
application for review is to be considered.
The arbitrator’s
findings
[30]
In his analysis of the evidence, the
arbitrator found that there was no evidence placed before him to show
that the Respondent was
incapacitated by the injuries he had
sustained at Makro on 6 August 2016.
[31]
The arbitrator found that it was undisputed
that the Respondent provided a doctor’s letter to the Applicant
wherein he was
declared fit to resume duty and that this was
confirmed by Mr Manyaka’s evidence when he testified that the
Respondent showed
him a letter from the doctor, stating that he was
fit to resume work.
[32]
In respect of the issue of an offer for
alternative employment, the arbitrator found that the Respondent
vehemently denied the Applicant’s
version that he was offered
alternative employment. The Applicant failed to tender any
documentary evidence in support thereof
and even the letter of
dismissal made no mention of the alternative employment that was
offered to the Respondent. Mr Manyaka was
unable to explain why the
offer of alternative employment was not mentioned in the letter of
termination and absent any explanation,
the arbitrator’s only
inference was that the Respondent was never offered any alternative
employment and the evidence in
this regard was intended to mislead
the arbitrator.
[33]
The arbitrator found that the Applicant’s
witnesses did not corroborate each other’s evidence in that Mr
Mthombeni testified
that the Respondent indicated that his doctor
said that he should be given light duties and the evidence of Mr
Manyaka was that
he was shown a doctor’s letter which stated
that the Respondent was fit to resume duties.
[34]
The arbitrator found that the Applicant
failed to adduce evidence to show that it had followed the provisions
of the Code of Good
Practice: Dismissal on ill-health or injury
before terminating the Respondent’s employment. The arbitrator
found that the
evidence showed that the Applicant terminated the
Respondent’s services summarily when he had returned to work
and that it
failed to follow any due process.
[35]
The arbitrator found the Respondent’s
dismissal substantively and procedurally unfair.
[36]
In
determining appropriate relief, the arbitrator referred to the
provisions of section 194(1) of the Labour Relations Act
[4]
) (LRA), which provides for just and equitable compensation and he
recorded that in determining appropriate relief, he had considered
the Respondent’s length of service, the circumstances of his
dismissal, loss of income and the fact that he had sustained
his
injuries whilst performing his duties. The Respondent is an elderly
person who would find it difficult to secure another job.
The
arbitrator awarded compensation equivalent to ten months’
remuneration as he found that to be just and equitable in the
circumstances.
Grounds for review
[37]
The arbitrator found that the Respondent’s
dismissal was unfair for mainly three reasons: firstly because he
accepted that
it was common cause that the Applicant had a letter
from the doctor which declared him fit for duty, secondly the
arbitrator accepted
that the Respondent was never offered an
alternative position and thirdly because the Applicant failed to
adduce evidence to show
that it had followed the provisions of the
Code of Good Practice: Dismissal on ill-health or injury before
terminating the Respondent’s
employment.
[38]
The Applicant’s case is that due to
the Respondent’s incapacity, the parties agreed to terminate
the Respondent’s
employment contract and in terms of the
agreement, the Applicant paid severance pay equivalent to one month’s
salary. The
termination agreement reflected the salient points and
both parties duly signed it. The Respondent signed the termination
document,
confirming that it correctly reflected the terms of the
settlement reached between the parties. The Respondent agreed to this
and
the Applicant acted in accordance with its obligations in terms
of the agreement by paying the Respondent the monies as per the
agreement.
[39]
The Applicant raised a number of grounds
for review in its founding and supplementary affidavit. I will deal
with the material grounds
for review in turn.
[40]
The first ground for review is that the
arbitrator failed to apply his mind to the issues before him and he
failed to identify the
true nature of the dispute when he failed to
pay attention to the content of the termination agreement signed by
the parties. Linked
to this is the Applicant’s ground for
review that the arbitrator misdirected himself by finding that the
Respondent’s
dismissal was procedurally unfair because
incapacity procedures were not followed. This finding failed to take
into account that
the Applicant paid the Respondent in terms of and
as a result of the settlement of all issues and therefore there was
no need to
proceed with an incapacity process.
[41]
In my view, there is merit in this ground
for review.
[42]
It is evident from the transcript that Mr
Manyaka testified that the Respondent declined an alternative
position to work in the
office and that he had agreed that his
services be terminated by signing the letter of termination. Mr
Manyaka went further and
read the entire contents of the letter into
the record, which included that the payments recorded in the letter
were in full an
final settlement of all and any claims that the
Respondent may have arising out of the termination of his employment.
The Respondent
signed and confirmed that he agreed to the terms and
conditions of termination as outlined in the letter.
[43]
It is evident from the transcript that the
Respondent did not dispute that he had signed the termination letter
or that he disagreed
with the terms thereof.
[44]
T
he question that
this Court must ask on review is whether the contents of the
termination letter
were material to the
determination of the dispute and whether the arbitrator’s
failure to consider it, distorted the ultimate
decision made by the
arbitrator.
[45]
In
Head
of the Department of Education v Mofokeng
[5]
the
LAC provided the following exposition of the review test:
‘
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 inquiry. 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 inquiry, 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.’ (My
emphasis).
[46]
In my view, the termination letter was a
material piece of evidence and it was incumbent upon the arbitrator
to have considered
it as such. In the analysis of evidence, the
arbitrator’s only finding in respect of the termination letter
is that it did
not make reference to any alternative employment. The
arbitrator dismally failed to apply his mind to the content of the
letter
and the consequences of a document signed in full and final
settlement of any claim arising out of the termination of the
Respondent’s
employment.
[47]
As a result of the arbitrator’s
failure to consider material evidence and to determine the real
nature of the dispute, he
found that no incapacity procedure was
followed. The obvious question the arbitrator failed to determine is
whether it was necessary
to follow a procedure in view of a full and
final settlement to terminate employment by agreement and upon
payment of an agreed
severance package.
[48]
The arbitrator’s failure to apply his
mind to material facts indeed had a distorting effect upon his
conception of the enquiry,
the issues to be determined, the ultimate
outcome
and it distorted his ultimate
decision.
[49]
The second main ground for review is that
the arbitrator’s decision was based on the fact that he had
found that the Applicant
was unable to show that the Respondent was
offered an alternative office position. On this aspect, the
arbitrator was faced with
mutually destructive versions and he failed
to apply the rules of evidence.
[50]
In my view, there is merit in this ground
for review.
[51]
It is evident from the transcript that the
Applicant’s witnesses testified that the Respondent was offered
an office position,
which he declined. The Respondent on the other
hand denied that such a position was offered to him.
[52]
In dealing with the issue of an alternative
position, the arbitrator recorded that it was denied by the
Respondent and because the
Applicant could not support its version by
producing any documentary evidence to this effect and because this
was not referred
to in the termination letter, the only inference was
that the Respondent was never offered any alternative employment.
[53]
The
approach to be adopted by arbitrators when faced with two conflicting
versions was set out in
Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others
[6]
,
where it was held that the arbitrator must conduct an:
‘
.
. . assessment of the credibility of the witnesses, a consideration
of the inherent probability or improbability of the version
that is
proffered by the witnesses, and an assessment of the probabilities of
the irreconcilable versions before the commissioner.
As Cele AJ (as
he then was) observed in
Lukhnaji
Municipality v Nonxuba NO & others
[2007] 2 BLLR 130
(LC), while the LRA requires a commissioner to
conduct an arbitration hearing in a manner that the commissioner
deems appropriate
in order to determine the dispute fairly and
quickly, this does not exempt the commissioner from properly
resolving disputes of
fact when they arise.’
[54]
The arbitrator, faced with two conflicting
versions, had to follow the approach as set out by this Court and he
had to conduct an
assessment of the credibility of the factual
witnesses, their reliability and overall assessment of the inherent
probabilities
of the irreconcilable versions before him.
[55]
In
Ngqeleni
[7]
the
Court also held that it was one of the prime functions of a
commissioner to ascertain the truth as to the conflicting versions
before him. The Court held that:
‘
What
he manifestly lacked was any sense of how to accomplish this task, or
which tools were at his disposal to do so. The commissioner
was
obliged at least to make some attempt to assess the credibility of
each of the witnesses and to make some observation on their
demeanour. He ought also to have considered the prospects of any
partiality, prejudice or self-interest on their part, and determined
the credit to be given to the testimony of each witness by reason of
its inherent probability or improbability. He ought then to
have
considered the probability or improbability of each party’s
version. The commissioner manifestly failed to resolve the
factual
dispute before him on that basis. Instead, he summarily rejected the
evidence of each of the applicant’s witnesses
on grounds that
defy comprehension.
[56]
It is within this context that the evidence
presented and the arbitrator’s assessment of the evidence
placed before him, should
be considered.
[57]
Glaringly
absent from the arbitration award is an assessment of the conflicting
versions, of the credibility of the witnesses and
the inherent
probabilities of the versions presented. In fact, there is no
consideration of any of the factors set out in
Ngqeleni
[8]
.
[58]
The arbitrator failed to take cognisance of
the material evidence placed before him and he had failed to assess
the totality of
the evidence presented. The arbitrator’s
findings contain no assessment of the probabilities and he made no
credibility findings,
in circumstances where he was faced with
conflicting versions. He simply concluded with an ‘only
inference’ which is
not supported by any proper assessment or
finding.
[59]
It was incumbent upon the arbitrator to
make credibility findings and to state why he accepted one version
and rejected another,
which he dismally failed to do.
[60]
I have no intention to deal with all the
remaining grounds for review raised by the Applicant because the
award is to be reviewed
and set aside on any one of the grounds for
review that I have already alluded to
supra
and that seals the ultimate fate of the award. It is not necessary to
consider and decide each and every one of the remaining grounds
for
review as it will not render the award more or less reviewable and
would not change the ultimate fate thereof.
Conclusion
[61]
I have to consider the grounds for review
within the context of the test that this Court must apply in deciding
whether the arbitrator's
decision is reviewable. The ultimate
question is whether holistically viewed, the decision taken by the
arbitrator was reasonable
based on the evidence placed before him.
[62]
I must ascertain whether the arbitrator
considered the principal issue before him, 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.
[63]
The arbitrator’s findings are
unreasonable and
cannot survive on review.
Costs
[64]
This Court has a wide discretion in respect
of costs.
[65]
This
matter was enrolled on the unopposed motion Court roll
on
16
October 2018 when the matter was postponed
sine
die
to
the opposed roll and
it
was ordered that the record must be served on the Respondent’s
attorneys. It was also ordered that “
The
costs of today shall stand-over
”.
Mr
Goldberg for the Respondent submitted
that
the Applicant must be ordered to pay the costs in that it had failed
to serve its notice in terms of Rule 7A (6) and (8) of
the Labour
Court Rules (the Rules) on the Third Respondent and went ahead as if
the matter was unopposed. He submitted that the
Third Respondent
could only oppose the application after he had received the
Applicant’s notices in compliance with Rule
7A (8).
[66]
Mr Baloyi for the Applicant filed
supplementary submissions and although he did not specifically
address the issue of costs, he
stated that
the
matter was initially set down on the unopposed roll on 16 October
2020 and was removed as it had become opposed. Despite the
late
opposition by the Respondent, the Court was not satisfied with the
proof of service of the record and the supplementary affidavit.
This
was caused by insufficient particularity in the service affidavit.
[67]
I could not find any service affidavit from
the Applicant in the Court file to show that the record as well as a
Rule 7A(6) and
(8) of the Rules notice had indeed been served on the
Respondent prior to enrolment of the matter on the unopposed roll of
16 October
2018.
[68]
In my view, the Respondent is entitled to
the wasted costs occasioned by the postponement of the matter on 16
October 2018.
[69]
As for the remainder, my view is that this
is a matter where the interest of justice will be best served by
making no order as to
costs. The Respondent had an award in his
favour and when it was taken on review, he had the right to defend
the award and he should
not be punished for doing so.
Relief
[70]
In the notice of motion, the Applicant
seeks for the arbitration award to be reviewed and set aside and for
an order that the award
be substituted with a different order or
alternatively, that the dispute to be remitted for a hearing
de
novo.
[71]
In the event that the award is set aside on
review, this Court has a discretion whether or not to finally
determine the matter.
[72]
In casu,
the
arbitrator misconceived the enquiry, he failed to consider and decide
the conflicting versions and he failed to apply his mind
to material
evidence. In those circumstances, the arbitrator effectively deprived
the Applicant of a fair hearing and it is not
appropriate to
substitute the award, but rather to remit the matter for a hearing
de
novo.
I am not inclined to substitute
the award where principal and material issues were not properly
determined.
[73]
I am of the view that it would be in the
interest of the parties and of justice to have the matter properly
ventilated and decided.
[74]
In the premises, I make the following
order:
Order
1.
The
arbitration
award dated 23 June 2017 and issued under case number GAEK583-17
is
reviewed and set aside;
2.
The dispute is remitted to the First
Respondent for a hearing
de novo
before
an arbitrator other than the Second Respondent;
3.
There is no order as to costs, save for an
order that the Applicant is to pay the Third Respondent’s
wasted costs occasioned
by the postponement of the matter on 16
October 2018.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Representatives:
For the
Applicant:
Mr Baloyi of M M Baloyi Attorneys
For
the Third Respondent:
Mr Goldberg of Goldberg Attorneys
[1]
2007
28 ILJ 2405 (CC) at para 110.
[2]
(2014)
35 ILJ 943 (LAC) at para 16.
[3]
[2011]
2 BLLR 129
(LAC) at para 18.
[4]
Act
66 of 1995 as amended.
[5]
[2015]
1 BLLR 50
(LAC), para 33.
[6]
(2011)
32 ILJ 723 (LC) at 727C-F.
[7]
Ibid.
[8]
Ibid.