Barnes Fencing Industries (Pty) Ltd v Justice Santjie Mthombeni N.O and Others (JR 1103/18) [2022] ZALCJHB 13 (4 February 2022)

Not Reportable

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: JR 1103/18

In the matter between:

BARNES FENCING INDUSTRIES (PTY) LTD

Applicant

and

JUSTICE SANTJIE MTHOMBENI N.O.

First Respondent

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION

Second Respondent

KELLY TITUS

Third Respondent

Determined on the Papers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 4 February 2022 at 16:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] The Applicant seeks an order reviewing and setting aside the arbitration award

issued by the Second Respondent (Commissioner) dated 8 May 2018. In the award, the Commissioner found that the dismissal of the Third Respondent (Mr Kelly Titus) (Titus), was substantively unfair and had ordered his retrospective reinstatement together with back-pay in the amount of R93 000.00

[2] Titus was in the employ of the respondent as a Despatch Supervisor, and was dismissed on 26 October 2017 following a disciplinary enquiry into four allegations of misconduct. In a notice to appear before a disciplinary enquiry, Titus was accused of gross dishonesty; fraudulent acts; lying or giving false evidence or misinformation (verbally and/or in writing); and conduct affecting the employer/employee relationship detrimentally. Notwithstanding the multiple charges, the essence of the allegations against Titus was that he sold jobs to persons looking for employment at the applicant for amounts ranging between R3 500.00 and R4000.00.

[3] Having referred a dispute to the second respondent, the Commission for Conciliation

Mediation and Arbitration (CCMA), the matter came for arbitration before the Commissioner. Although the evidence presented by all the witnesses before the Commissioner was scant with specifics in regard to the incidents in question, in the notice to appear at a disciplinary enquiry issued to Titus in September 2017, it was alleged that the incidents took place since 2013.

[4] The evidence of Mr Herman Havenga (Havenga), the applicant’s Security Manager, was that the allegations against Titus came about in the course of unrelated investigations he had conducted into incidents of theft in the applicant’s Despatch Department. Some of the employees who were being interviewed and/or investigated for theft, had then alleged that Titus had sold jobs to them.

[5] Only two of these employees were called upon to testify in the arbitration proceedings.

The first was Mr Nzuzo Mjoli (Mjoli). It was common cause that Mjoli had at the time that he made the allegations, been subjected to a disciplinary enquiry and subsequently dismissed for misconduct related to fraudulent time keeping. The disciplinary process was initiated by Titus as his supervisor.

[6] Upon his dismissal, Mjoli then approached a ‘Director’ of the applicant with a view of seeking leniency and a second chance. Mjoli also approached Havenga with the allegations against Titus and other incidents of thefts which Havenga was investigating. Havenga testified that when Mjoli approached him, he was upset and informed him that he was dismissed despite having paid Titus for his job.

[7] According to Mjoli, in 2014 he was unemployed when his brother, Khetani (who is also

employed by the applicant), informed him that there was a job available at the workplace. Khethani informed him and that he will

speak to one Khumalo (spelt ‘Khamala’ in the transcribed record), who had in turn introduced him to Titus. Mjoli met Titus in the applicant’s warehouse during a nightshift and handed him an amount of R3 500.00.

[8] Other than having been dismissed at the time he made the allegations, it was common cause that Mjoli also had a written warning and final written warning issued to him for clocking offences and fraudulent time keeping. He further testified that he revealed the allegations against Titus because the latter did not discipline or dismiss another employee who had committed a similar misconduct as him. It was further common cause that having made the allegations, Mjoli was reinstated back into his position.

[9] Another person who was allegedly sold a job by Titus was Mr Alex Mthombeni (Mthombeni). He testified that in 2014, and he and another person, Khanyisa, were introduced to Titus by another person, Sitlelo, who was also employed by the applicant. Mthombeni testified that he paid Titus R3 400.00 for a job, which he had placed in his ID book and handed to him. He had however not seen how Khanyisa made his payment. At the time, he was unemployed, and his family members had raised half of the amount whilst the other half was raised from loan sharks. Under cross-examination, he testified that he ‘hated’ Kelly because he made him pay for a job. He had also laid a grievance against Titus in regard to the fact that as a supervisor, he had refused to accept his medical certificates when he was off sick, resulting in him not being paid for the days he was not at work.

[10] Titus’ evidence in his defence was that the allegations against him were fabricated by people who were friends, and who had ganged up against him as they had a vendetta or grudge against him. He testified that there was no evidence presented to demonstrate that he was given money, and that the applicant had not called the people that allegedly introduced him to Mjoli, Mthombeni and others to testify. Titus contended that Mjoli was aggrieved because as his supervisor, he had initiated investigations against him for misconduct which led to his subsequent dismissal. He was of the view that the allegations were made against him and he was dismissed as he was merely doing his job by disciplining other employees for acts of misconduct.

[11] The Commissioner in his award criticised the applicant for not bringing forth evidence to demonstrate that despite the allegations, Titus was in a position to influence the recruitment process and his role in that regard.

[12] The Commissioner also questioned the character, motives and credibility of Mjoli and Mthombeni based on the fact that Mjoli in particular, was a dishonest person in view of the fact that he had disciplinary warnings on record for misconduct, that he was also initially dismissed by Titus, and Mthombeni had further testified that he ‘hated’ Titus for other reasons.

[13] The Commissioner further pointed out that even though Havenga had relied on similar other allegations

made against Titus by other employees, the veracity of these employees’ allegation were not confirmed, and thus the evidence

of Mjoli and Mthombeni did not on a balance of probabilities, prove the existence of the misconduct in question. He also drew negative

inferences from the fact that other witnesses such as Khumalo were not called as witnesses, to substantiate the allegations against

Titus that he sold jobs.

[14] The applicant seeks a review of the award based on four main grounds. In this regard, it was contended that the Commissioner misconceived the evidence before him; failed to resolve material factual disputes; ignored material evidence before him and accepted Titus’ version in circumstances where the evidence of Mjoli and Mthombeni was not disputed.

[15] The test on review is settled, and the enquiry is whether the decision reached by the Commissioner in the light of the evidence placed before him, is one that a reasonable decision-maker could not reach[1]. In South African Municipal Workers Union obo Mosomo v Greater Tubatse Local Municipality[2], it was further held that whether the decision of the Commissioner falls within a range of reasonableness, involves a broad evaluation of the merits of the dispute, and a consideration of whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator.

[16] In further determining whether the commissioner’s award falls within a band of reasonableness, the applicant’s grounds of review ought to be analysed within the context of the approach set out in Goldfields[3], which is that the review 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 which was reasonable to justify the decisions he or she arrived at[4]. Furthermore, the court must enquire whether the commissioner in terms of his duty to deal with the matter with the minimum of legal formalities, afforded the parties a full opportunity to have their say in respect of the dispute; properly identified the dispute he was required to arbitrate; understood the nature of the dispute he was required to arbitrate; dealt with the substantial merits of the dispute; and most importantly, arrived at a decision that another decision-maker could reasonably have arrived at based on the evidence that was placed before him/her[5].

[17] In regard to the above approach, the applicant accepted that the commissioner had correctly identified

the issue for determination, which was whether Titus sold jobs to employees. The basis upon which it was alleged that the commissioner

had misconceived the evidence was that despite the record demonstrating that Titus did not at any stage dispute or deny that he

received money in exchange for jobs, and that his only version was that the witnesses had a vendetta against him, he nonetheless found in his favour.

[18] In regards to the above contentions, it can be accepted from the transcribed record that when

the applicant’s witnesses testified at the arbitration proceedings, Titus did not put versions directly to these witnesses

that he would deny that he ever received money in exchange for jobs. The omission on the part of Titus to put versions to witnesses that he would deny the allegations ought to be understood within the context of how the each party’s case at the arbitration

proceedings was presented. Titus had represented himself, whilst the applicant was represented by its Safety Officer, Mr van Heerden. The transcribed record clearly reveals that the commissioner was confronted with having to manage a process involving unskilled

parties, who were not made aware of the importance of putting versions to witnesses, or responding to versions, and the consequences of a failure to do so. Equally so, the evidence was presented in a haphazard manner which made it difficult to follow, particularly in regard to the details of the incidents in question.

[19] Having had regard to the transcribed record, it is my view that even if Titus omitted to put

versions to the applicant’s witnesses or specifically deny having sold jobs for cash, his evidence nonetheless demonstrates that it cannot be said that the applicant’s witnesses’ version remained undisputed. Titus had both in his evidence in chief and cross-examination, consistently testified that those witnesses had lied, that there was ‘no proof in this case’, that there was a vendetta, and had also questioned how the alleged payments were made. In the context of the manner with which the arbitration proceedings were conducted, it is my view that the mere fact that Titus’ defence and denials came out in inelegant terms falling short of the strict rules of evidence, or the fact that his defence was based on conspiracy theories, cannot in my view, be construed as not having disputed the applicant’s witnesses’ versions. The applicant’s contentions therefore that its witnesses’ testimony was not challenged has no merit.

[20] The issue therefore remains whether the Commissioner had misconceived the evidence before him, failed to resolve material factual disputes, and ignored material evidence before him. It is accepted that a decision of the commissioner will be rendered unreasonable if it is entirely disconnected with the evidence before him/her, or is unsupported by any evidence, and/or involves speculation on the part of the commissioner[6]. In this case, the only evidence of worth in regards to the allegations against Titus was that of Mjilo and Mthombeni. Havenga’s

evidence was of little assistance in that regard in that he could only narrate what the other two told him during the course of his investigations. Equally so, I agree with the applicant’s contentions that nothing turned on its failure at the arbitration

proceedings to call Khumalo and Khanyisa, as there was no evidence that they were present when the alleged payments were made to Titus.

[21] The primary issue before the Commissioner was whether Titus sold jobs as alleged by Mjoli and

Mthombeni. To the extent that I have concluded that that Titus had disputed the allegations, what the Commissioner was therefore

confronted with was mutually destructive versions, and he was therefore required to determine which version was more probable,

taking into account that the onus to establish the misconduct in question on a balance of probabilities, rested on the applicant.

[22] The approach when confronted with mutually destructive factual versions has long been set out in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others[7]. It required of the commissioner to make findings on (a) the credibility of the various factual witnesses; (b) their reliability;

and (c) the probabilities.

[23] The applicant complained that the commissioner placed too much emphasis on what it termed ‘presumed

bias’ of its witnesses and never provided any reason for accepting Titus’ version. This contention however is not supported by the evidence before the Commissioner nor his analysis of the facts. There is no doubt that the Commissioner had indeed

conducted an assessment of the credibility of the factual witnesses and gave reasons why he did not prefer the version of the applicant’s

witnesses. The fact that the applicant does not agree with that assessment does not mean that it was not conducted, let alone that

the assessment was not objectively conducted.

[24] From the evidence of both Mjilo and Mthombeni, it is apparent that they disliked Titus for a variety of reasons. It is not known at what stage these feelings surfaced since 2014 when they had allegedly paid money for their jobs. Questions however ought to be raised as to the reason and the timing of these allegations in view of the overall investigations conducted by Havenga, and Mjoli’s own disciplinary problems at the time. Clearly an assessment of the credibility of Mjilo and Mthombeni required that the Commissioner should take these factors into account.

[25] It was common cause that Mjoli and Mthombeni were part of a group of employees that had revealed the allegations against Titus, at the time that there were investigations into incidents of theft in the Despatch Department where they are employed. It is accepted that there was no evidence to suggest that the two were implicated in the incidents of theft. What is however known is that Mjoli had a particular dislike for Titus because the latter had exercised discipline over him for misconduct which ultimately led to his dismissal. Mjoli was also found to be dishonest by the Commissioner in the light of his disciplinary record related to fraudulent conduct. It is therefore not correct as submitted on behalf of the applicant, that Mjoli did not have an issue with Titus. In fact on Havenga’s evidence, he was upset with Titus for initiating disciplinary steps against him for what appears to be serious misconduct related to dishonesty. Clearly Mjoli had motive to make the allegations, particularly since it was common cause that he made them in the context of seeking leniency in the light of the decision to dismiss him.

[26] Mthombeni on the other hand had outrightly testified that he ‘hated’ Titus, not only for selling him a job but also for not sanctioning his sick leave resulting in not being paid. Again, clearly Mthombeni could not have simply made these allegations at the time some three years since he was employed. Of course he too had a score to settle with Titus, as he had refused to sanction his pay when he was off sick.

[27] Inasmuch as it can be said that Titus’ defence relied on conspiracy theory, that defence cannot simply be ignored in the light of the credibility findings in regard to Mjoli and Mthombeni, and the questions surrounding the reliability of their versions.

[28] In the light of the above, the commissioner was correct to question these witnesses’ motives

and credibility in view of their blatant bias. The Commissioner’s conclusions that Mjoli in particular was a dishonest person in the light of his disciplinary record, and his preference of Titus’ version that these witnesses had ganged up against and held a grudge against him cannot in my view be said to fall outside the bounds of reasonableness.

[29] The question of which version was more reliable other than the credibility findings made, was to be assessed by the Commissioner in the light of the evidence that was placed before him, and from which it would further have been required of him to determine whether the probabilities had demonstrated that the applicant had indeed discharged the onus placed on, it to prove the allegations against Titus.

[30] In my view, the Commissioner was correct in criticising the applicant for simply relying on the

allegations made against Titus without more. It was not sufficient for these allegations to be made when no evidence was proffered in regards to how Titus would have been in a position to not only sell jobs but also ensure that the applicant’s recruitment processes had been complied with. No evidence was led in regards to Titus’ role in the entire process and how it was possible for employees to have been employed in circumstances where they had bought jobs. All that was before the Commissioner was that Titus was a Despatch Supervisor and that the alleged incidents took place sometime in 2014. As to what his role was in regards to recruitment matters was never placed before the Commissioner. The Commissioner’s conclusions therefore that the investigations into the allegations were ‘superficial’ cannot be faulted, and he was thus only required to determine the fairness of the dismissal based on the available material.

[31] In circumstances where the credibility of Mjoli and Mthombeni were correctly questioned by the

Commissioner, and where the allegations against Titus were made without more, there could not have been any basis to find the version

of the two witnesses reliable. To that end, the conclusion by the Commissioner that the applicant had not discharged the onus placed on it to demonstrate on a balance of probabilities that Titus had indeed committed the misconduct in question, was a conclusion that fell within the bounds of reasonableness.

[32] In conclusion, having had regard to the award and the material placed before the Commissioner, even if he had attached little or no relevance or weight to some evidence which the applicant was of the view ought to have persuaded him to rule in its favour, in the end, that in itself in line with the ratio in Herholdt v Nedbank Ltd[8], was not sufficient for the award to be set aside, as the consequences thereof had no effect on the ultimate outcome. In the end, there can be no basis for a finding that the Commissioner’s award is disconnected with the evidence before him, or was unsupported by any evidence, and/or involved speculation on his part. Furthermore, in line with the approach in Goldfields[9], I am satisfied that the Commissioner understood the nature of the dispute he was required to arbitrate; dealt with the substantial

merits of that dispute, and arrived at a decision that another decision-maker could reasonably have arrived at based on the evidence

that was placed before him. It follows that the review application ought to fail.

[33] Further having had regard to the requirements of law and fairness in regards to an award of costs, I am of the view that such an award is not warranted given the circumstances of this case.

[34] Accordingly, the following order is made;

Order:

1. The application to review and set aside the arbitration award issued by

the Second Respondent under case number GAJB24142 – 17 is dismissed.

2. There is no order as to costs

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Representation:

For the Applicant:

Hahn & Hahn Attorneys.

Heads of Argument presented by Adv. J.P. Prinsloo

For the Third Respondent: Selolo Ramashilo Attorneys

Heads of Argument presented by Adv. M.D. Sekwakweng

[1] Sidumo and Another v Rustenburg Platinum Mines and Others (2007) 28 IJL 2045; [2007] 12 BLLR 1097; 2008 (2) SA 24; 2008 (2) BCLR 158 (CC)

[2] [2020] ZALAC 53 (2 December 2020) at para 27

[3] Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others (JA 2/2012) [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC)

[4] At para 16

[5] At para 20

[6] See South African Municipal Workers Union obo Mosomo v Greater Tubatse Local Municipality at para 27

[7] 2003 (1) SA 11 (SCA) at para 5, where it was held; “On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness's candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness's reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's

credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail."

[7] 2003 (1) SA 11 (SCA) at para 5, where it was held;

“On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness's candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness's reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's

credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail."

[8] (701/2012) [2013] ZASCA 97; 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA) at para 25

[9] Supra