IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: JR115/02
In the matter between:
KARAN BEEF Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
FAIZEL MOOI N.O Second Respondent
NATIONAL WHOLESALE AND UNITED
WORKERS UNION obo ALBERT GUMEDE
AND CYPRIAN DIDI Third Respondent
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J U D G M E N T
______________________________________________________________
HUTTON A J:
1 The applicant in this matter is Karan Beef, a sole
proprietorship. The applicant is a distributor of fresh meat products. Albert
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Gumede (“ Gumede ”) and Cyprian Didi (“ Didi ”) were employed by the
applicant. Their duties involved assisting a truck driver in the distribution of
the applicant’s products to its customers. In part icular their duties included
the off-loading of meat at the premises of various customers of the applicant.
1 On 9 July 2001 the applicant’s warehouse manager, Joseph van
Eeden (“ Van Eeden ”), received a telephone call from an irate custome r
complaining that two of the applicant’s employees h ad been under the
influence of alcohol when delivering meat to the customer’s premises. It was
ascertained that the crew of the truck making the d elivery to that particular
customer consisted of Gumede, Didi and a driver.
1 Upon their return to the applicant’s premises, Gum ede, Didi
and the driver were stopped by the applicant’s secu rity guards. As a
consequence of what then ensued the driver of the t ruck was cleared of any
involvement in the alleged misconduct whilst Gumede and Didi were
charged with misconduct consisting of the consumpti on of alcohol whilst on
duty, the consumption of alcohol whilst in the appl icant’s vehicle, being
under the influence of alcohol when delivering to t he applicant’s customer
and bringing the applicant’s name into disrepute.
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1 A disciplinary enquiry was convened on 13 July 200 1 at which
Gumede and Didi were found guilty. They were both dismissed from the
employ of the applicant.
1 Subsequently, the third respondent, the National W holesale and
United Workers Union, of which Gumede and Didi were both members,
referred a dispute to the Commission for Conciliati on, Mediation and
Arbitration (“ the CCMA”) on behalf of Gumede and Didi, disputing both the
substantive fairness and the procedural fairness of their dismissals. After an
unsuccessful attempt of conciliation, the matter pr oceeded to arbitration
before the second respondent, a duly appointed commissioner of the CCMA.
1 The first witness led by the applicant testified i n relation to the
procedural issues surrounding the dismissal. The r emaining three witnesses
for the applicant, Messrs Van Eeden, Kgogo and Slin ger testified in relation
to the issues of substantive fairness. A Mr Mbhele was the only witness
called on behalf of Gumede and Didi. He testified in relation to procedural
issues. Neither Gumede or Didi testified at the ar bitration. Their silence
had also been a feature of the earlier disciplinary enquiry.
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1 The second respondent delivered an award on 6 Dece mber
2001. In his award the second respondent found th at whilst the dismissal
was procedurally fair, it was substantively unfair.
1 The second respondent’s reasoning for coming to th e latter
conclusion was as follows:
“Section 192 (2) of the LRA states: ‘If the existenc e of the dismissal
is established, the employer must prove that the di smissal is fair. ’ It
is not disputed that the applicants were dismissed. Even though the
applicants did not testify, the respondent still ha s to establish the
dismissal was fair. I am of the view that the dism issal was
substantively unfair for a number of reasons. Firs tly, in chief, Mr
van Eeden was specifically asked who smelled of alc ohol to which
he replied that he could not say which one, because they were in a
closed room. Under cross-examination he said they both smelled of
alcohol. He acknowledged that he had earlier said that he was not
sure if they smelled of alcohol, but insisted that when they got out of
the truck he spoke to each of them close by to see if they smelled of
alcohol. His later insistence that the applicants both smelled of
alcohol cannot be given much weight as he was given an
opportunity by his own representative to mention this in his evidence
in chief. Furthermore, Mr Slinger testified they w ere standing
outside the security office when Mr van Eeden came over to where
they stood. There is therefore no corroboration fo r Mr van Eeden’s
evidence that he smelled alcohol on both applicants when they got
out of the truck. Secondly, Mr Kgogo who was als o with the
applicants in the office as he was asked to interpr et, made no
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mention of either or both of the applicants smellin g of alcohol. Mr
Slinger testified that he smelled alcohol. However he did not
indicate if both applicants smelled of alcohol or o nly one of them.
While I accept that both Mr van Eeden and Mr Slinge r smelled
alcohol in the vicinity the (sic) of the applicants, this is not sufficient
to render the dismissal substantively fair, as the case against both
applicants must be conclusively proved on a balance of
probabilities. It is clear that one or more of the people in the truck
consumed alcohol as a beer bottle was found in the truck. However,
the driver did not smell of alcohol and was cleared . In order for
the applicants both to be found guilty, it is neces sary for the witness
to have clearly smelled alcohol on both of them, or to conclusively
state that he smelled alcohol on one of them and cl early identify
him. It is possible that only one of them consumed alcohol. Without
clear evidence as to which one consumed alcohol or whether both of
them consumed alcohol, they both have to be given t he benefit of the
doubt. ”
1 The applicant seeks that the second respondent’s f inding in
regard to the substantive fairness of the dismissal be reviewed and set aside.
In essence the applicant complains that the second respondent misdirected
himself by imposing a greater burden of proof on th e applicant than is
required in law. It is well established that wha t is required of an employer
is to discharge the onus that lies upon it in terms of section 192(2) of the
Labour Relations Act, 1995 (“ the LRA ”) on a preponderance of probability.
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See: Lefu & others v Western Areas Goldmining Company Lt d
(1985) 6 ILJ 307 (LC) at 314 B
Early Bird Farms (Pty) Ltd v Mlambo [1997] 5
BLLR 541 (LAC) at 544 A - B;
Mbhele & another v Strange Cleaning Services CC
(2001) 22 ILJ 2746 (CCMA) at 2750 E - F
1 The applicant argues that although the second resp ondent
appears to accept that the onus that lies upon an employer in terms of section
192 (2) of the LRA to prove that the dismissal is f air is discharged upon a
balance of probabilities, the second respondent has misconceived what this
entails by requiring that the applicant should have established the misconduct
complained of “ conclusively ”. The applicant argues that the second
respondent’s evaluation of the evidence before him clearly demonstrates a
lack of appreciation of the nature of the onus that rested upon the applicant.
1 In Marapula & others v Consteen (Pty) Limited
(1999) 20
ILJ 1837(LC) Jajbhay AJ, as he then was, held as follows at 1845 F - I:
“The onus is on the employer to prove that the dismi ssal was fair (s
192 of the LRA) on a preponderance of probability. In my opinion,
the onus is discharged if the employer can show by credible
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evidence that its version is the more probable and acceptable
version. The credibility of witnesses and the prob ability or
improbability of what they say should not be regard ed as separate
enquiries to be considered piecemeal. They are par t of a single
investigation into the acceptability or otherwise o f the employer’s
version, an investigation where questions of demean or and
impression are measured against the content of the witnesses’
evidence, where the importance of any discrepancies or
contradictions is assessed, or where a particular s tory tested
against facts which cannot be disputed and against the inherent
probabilities, so that at the end of the day one ca n say with
conviction that one version is more probable and sh ould be
accepted, and that therefore the other version is f alse and may be
rejected with safety.”
1 I am in respectful agreement with what is set out by the learned
judge in the passage quoted above. I am furthermor e of the view that the
second respondent materially departed from the acce pted method of
assessing the evidence before him in arriving at a decision as to whether or
not the probabilities favoured the applicant.
1 What the second respondent was required to do was to assess
the totality of the evidence led on behalf of the a pplicant in order to
determine whether a prima facie case of misconduct on the part of Gumede
and Didi had been established. In view of the fact that neither Gumede nor
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Didi led any evidence in their defence (apart from the evidence regarding
procedure), if a prima facie case was established, then that would suffice to
discharge the onus resting upon the applicant.
1 The second respondent made no finding adverse to t he
credibility of any of the applicant’s witnesses. H e merely found that it had
not been established that Gumede and Didi, individu ally, smelt of alcohol.
Without “conclusive” proof that each of them smelt of alcohol, the seco nd
respondent reasoned, they both had to be “ given the benefit of the doubt ”.
1 This approach is, in my view, untenable. The sec ond
respondent in assessing the evidence in this manner , has narrowed the
enquiry to an impermissible extent. In so doing, h e has effectively ignored
the other evidence that was before him. The fact that there was a smell of
alcohol about Gumede and Didi, albeit not attributa ble directly to one or the
other of them, must be taken together with the othe r proven facts, that is that
a complaint had been received from the applicant’s customer, an almost
empty and freshly consumed quart bottle of beer had been found in the truck
in question and that both Gumede and Didi refused t o submit to breathalyser
tests when requested to do so.
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1 When all of these facts are taken into account, th e cumulative
effect thereof can lead to no other rational conclu sion than that it has been
prima facie established that Gumede and Didi had partaken of the contents of
the quart bottle of beer that had been found in the ir truck, whilst on duty.
That being so, the duty to adduce evidence in rebuttal of this prima facie case
then lay upon Gumede and Didi. They did not take u p the challenge and
accordingly the misconduct with which they were cha rged was established
before the second respondent.
1 In Shoprite Checkers (Pty) Limited v Ramdaw N.O and
Others (2001) 22 ILJ 1603 (LAC) the Labour Appeal Court authoratively
held that a decision of an arbitrator at the CCMA m ay be reviewed and set
aside if it is not justifiable. The court held tha t in order for a decision to be
justifiable it must be rational.
1 I am of the view that given the erroneous approach adopted by
the second respondent to the question of onus , the decision arrived at by the
second respondent lacks rationality. As a decision that is irrational cannot be
said to be justifiable, I am accordingly of the vie w that the decision falls to
be reviewed and set aside.
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1 This being the case, I am enjoined by section 145 (4) of the
LRA to either determine the dispute in the manner I consider appropriate or
to make any order I consider appropriate about the procedures to be followed
to determine the dispute. In the arbitration proce edings the sole issue for
determination, other than the procedural issue whic h was decided against
Gumede and Didi, was whether or not they were guilt y of the misconduct
complained of. There was no contention that there was no rule in place that
employees may not drink on duty, nor any contention that such a rule was an
unreasonable one. No contention was advanced on b ehalf of Gumede and
Didi that the sanction of dismissal was an inapprop riate one if the
misconduct with which they were charged was proved. In these
circumstances, I am of the view that once the misco nduct was proved on a
balance of probabilities, and as I have already fou nd this ought indeed to
have been the case, then it is a foregone conclusio n that the result in any
arbitration would be that the dismissal of Gumede a nd Didi would have to be
found to be substantively fair. In these circumsta nces I see no reason to
burden the CCMA with a rehearing of this matter.
1 I see no reason in law or fairness why the costs o f this
application should not follow the result.
2 In the circumstances, I make the following order:
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1 The decision of the second respondent
under cases number GA 14092/01 and 12561/01 dated 6
December 2001 is hereby reviewed and set aside.
2 The decision of the second respondent is
substituted with a decision that the dismissal of A lbert
Gumede and Cyprian Didi was substantively and
procedurally fair.
3 Albert Gumede and Cyprian Didi are
ordered, jointly and severally, to pay the applican t’s
costs of this application.
R HUTTON
Acting Judge
Labour Court of South Africa
For the applicant: Attorney D Masher
Instructed by : Bell Dewar & Hall Inc
For the respondent: Adv G L M Bokaba
Instructed by : Maluleka Seriti
Makume Matlala Inc