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IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO J2828/00
In the matter between:
FOURIE’S POULTRY FARM (PTY) LIMITED Applicant
t/a CHUBBY CHICK
and
THE COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION First Respondent
MS RIANA BOTHA, NO Second Respondent
FEDCRAW Third Respondent
TIMOTHEUS TJALE Fourth Respondent
M SENAME Fifth Respondent
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JUDGMENT
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JAMMY AJ
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1. This is an application in terms of Section 145(2) of the Labour Relations Act 66 of 1995 in
which the Applicant seeks an order reviewing and setting aside the award of the Second
Respondent in an arbitration between the Applicant and the Fourth and Fifth Respondents
and made by her in her capacity as a Commissioner of the First Respondent.
2. The application is based on two grounds. The first is that in reaching her conclusion that
the Applicant had failed to discharge its acknowledged onus of proving that its dismissal
of its employees, the Fourth and Fifth Respondents was fair, the Second Respondent
applied an incorrect test in considering the circumstantial evidence before her and
secondly that there was no rational connection between her conclusion and the
undisputed facts of the matter which were placed before her.
3. The Fourth and Fifth Respondents were dismissed, following a disciplinary enquiry, for the
theft of chickens whilst in the employ of the Applicant on one of its farms where it carries
on business as a chicken breeder. It is common cause that in the course of the
arbitration neither the Fourth nor the Fifth Respondent gave evidence. The only
witnesses to testify were called by the Applicant and in addition to their testimony, the
Second Respondent had recourse to a bundle of documents of which only the record of
the disciplinary enquiry and a plan of the farm were held by her, with what she stated to
be the agreement of the parties (although the Applicant disputes this), to be admissible
and relevant.
4. The evidence presented to her, in broad terms, indicated through two specific witnesses,
that the Fourth and Fifth Respondents had been heard discussing the possession of
chickens, that the Fifth Respondent had been seen by an off-duty night watchman with a
sack containing chickens and that when confronted by him, the Fifth Respondent had
sack containing chickens and that when confronted by him, the Fifth Respondent had
only laughed. The person who had heard the initial discussions subsequently saw the
Fourth Respondent carrying bags and putting them under a fence, on the other side of
which the Fifth Respondent and another person had taken possession of them. No one
had actually seen the contents of the bags at any time but the Fifth Respondent had been
seen taking the bags to the showers on the property.
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5. The manager of the site, having been alerted to the situation, contrived a confrontation
with the Fifth Respondent in the shower block where eighty-seven chickens were
discovered. It was on the strength of this accumulation of largely circumstantial evidence
that disciplinary proceedings were eventually instituted and, as a consequence, the
Fourth and Fifth Respondents were dismissed.
6. The different tests to be applied in the assessment of circumstantial evidence in criminal
and civil proceedings are trite elements of the law of evidence. The proper test in
arbitration proceedings is the civil one and if an Arbitrator imports to the evidence before
him the test applicable to criminal proceedings, namely that the discharge of the onus
borne by employers must be determined beyond a reasonable doubt rather than on a
balance of probabilities, a gross irregularity in the proceedings will have been
perpetrated.
OK Bazaars (a division of Shoprite Checkers) v Commission for Conciliation Mediation and
Arbitration and Others (2000) 21 ILJ 1188 at 1191
In Govan v Skidmore 1952(1)SA 732
It was held that the selected inference must “by the balancing of probabilities be the more
natural, or plausible, conclusion from amongst several conceivable ones” , a principle
confirmed by the Appellate Division, in a line of subsequent decisions.
See for example: Ocean Accident & Guarantee Corporation v Koch 1963(4) SA 147 at 159
7. What emerges from these authorities is that clear and convincing evidence from an
employer to establish a valid reason for dismissal is not required in arbitration
proceedings. The determination to be made is one based solely on a balance of
probabilities.
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8. In her award in this matter, having reviewed the evidence before her, the Second
Respondent concluded “that the employer failed to discharge the onus to prove
on a balance of probabilities that the Respondents had stolen the chickens”.
Reference was made by her to her perception of discrepancies, inconsistencies and
contradictions in the evidence of the Applicant’s witnesses but I agree with Mr Bruinders’
submission that those criticisms do not concern the identification of the Fourth and Fifth
Respondents as the perpetrators of the alleged theft but relate rather to the contents of
the bags that they were seen carrying. No aspect of the evidence presented by the
Applicant’s witnesses supported any valid inference that the Fourth and Fifth
Respondents were not the persons guilty of the theft in question, whether or not anyone
else was involved. It is apparent from the award that the Second Respondent’s approach
was that, once there was reasonable doubt regarding the contents of the bags seen to be
carried by the Respondents, the Applicant had failed to discharge its onus of establishing
their guilt. That, as I have indicated, is the criminal test, and not one legitimately
applicable in the instant circumstances. That irregularity alone, renders her award
reviewable.
9. The evidentiary material before the Second Respondent was solely that submitted by the
Applicant and there is no doubt in my mind, notwithstanding the discrepancies and
inconsistencies which she seeks to emphasise, that her award is not rationally justifiable.
In my view the most compelling inference to be drawn from the facts before her is that
the Fourth and Fifth Respondents were guilty of the theft with which they were charged.
It should be borne in mind in that context that the facts submitted by the Applicant’s
witnesses, whilst in certain relatively immaterial instances inconsistent, were not
witnesses, whilst in certain relatively immaterial instances inconsistent, were not
disputed by any contradictory or rebutting evidence submitted by the Respondents.
10. I conclude therefore that the award cannot be allowed to stand. Having elected to present
their case in the arbitration on the basis upon which they did so, the Respondents cannot
now because of its inadequacy, expect a second opportunity to do so. The Applicant has
met that case and cannot equitably be expected to do so again. This is not a matter in
my view therefore which would justify the dispute being referred back to the First
Respondent for arbitration anew. In the circumstances of the matter, the following order
is both appropriate and proper.
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10.1 The award of the Second Respondent dated 20 May 2000 in the First Respondent’s Case
Number NW14795 is reviewed and set aside.
10.2 The Second Respondent’s determination that
“the dismissal of the Respondents was not effected for a fair reason”
is substituted by the following -
“The dismissal of the Respondents was fair and justified in all respects”.
The application being unopposed, there is no order as to costs.
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B M JAMMY
Acting Judge of the Labour Court
16 July 2001
Representation:
For the Applicant: Advocate T J Bruinders, instructed by Pienaar Swart & Nkiseng
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