Bolt Services SA (Pty) Ltd v Rapalalane and Others (JR151/22) [2024] ZALCJHB 231 (6 June 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR151/22

In the matter between:

BOLT SERVICES SA (PTY) LTD Applicant

and

COMMISSIONER RAPALALANE NO

First Respondent

COMMISSION FOR CONCILIATION,

Second Respondent

MEDIATION AND ARBITRATION

TUSI FOKANE Third Respondent

Heard: 23 May 2024

Delivered: 6 June 2024

Summary: Application to review arbitration award. Commissioner failing to consider material evidence, outcome one no reasonable decision maker could reach, set aside. Dispute referred back to CCMA.

JUDGMENT

DANIELS J

Introduction

[1] This is an application to review and set aside an arbitration award rendered by the first respondent (“the commissioner”).

For ease of reference, the applicant is referred to as “Bolt SA” or “the company”, the second respondent as “the CCMA”, and third respondent as “Ms F” or “Fokane”.

[2] It is necessary to begin with two procedural issues.

Procedural issues

Late filing of answering affidavit

[3] The third respondent’s answering affidavit was delivered approximately 10 court days late. The delay is explained in the answering affidavit itself. There has been no objection in terms of clause 11.4 of the Practice Manual. In the circumstances, condonation is unnecessary. Even if I am wrong, and the applicant has indeed objected; the delay is short, there is no prejudice and the excuse is reasonable. Condonation, in that event, is granted.

Incomplete arbitration record

[4] In this matter, there is an incomplete record. The applicant contends that, as a result, the court is unable to determine the review and the dispute must be remitted.

[5] One glaring instance of the difficulties that arise from an incomplete record, is the applicant’s contention that the third respondent admitted that, because she held a senior position, she bore the responsibility to decide whether to return to Cape Town to attend an important meeting.[1] This allegation was denied by the third respondent. In the absence of a complete record it is difficult to fathom what evidence served before the commissioner.

[6] The following further considerations must be considered:

6.1 The papers reveal that the applicant has taken steps to reconstruct the record. The applicant is not accused of simply folding its hands.

6.2 Despite its efforts, the applicant has been unable to file the complete record of the arbitration. Missing from the record is the original transcript of the evidence given by the third respondent under cross examination. Third respondent’s evidence, particularly under cross examination, is critical to a fair resolution of the dispute. Because the review must be determined on the totality of the evidence, the absence of the complete record undermines the court’s ability to fairly determine the review, or the dismissal dispute.[2]

6.3 Rule 36(1) of the CCMA Rules requires that it must keep a record of all processes, except conciliation. This is just one more instance, among many, where the CCMA failed to perform this straightforward task.

6.4 Although the applicant bears the onus, this court has held that, where there is an incomplete record, and where the applicant is not to blame, it would be unjust to simply dismiss the review.[3] Where the applicant has taken reasonable steps to reconstruct the record, the court will not lightly dismiss the review application.[4]

[7] In the final analysis, the Labour Court must be guided by the circumstances of each matter and determine whether to grant or dismiss the review application. Clearly, the matter cannot be remitted for rehearing in the absence of an order reviewing the award. A further option would be to strike the matter from the roll and allow the applicant a further opportunity to reconstruct the record. In the present circumstances, this would be an exercise in futility.

Background facts

[8] Bolt SA is part of a multinational company engaged in the e-hailing (taxi) industry. Bolt SA (formerly known as “Taxify”)

employed Fokane as its Manager of Public Policy: South Africa.

[9] As a result of her seniority and managerial responsibilities, the third respondent was very handsomely remunerated. Her duties included helping the country manager, and assisting the operations team to manage and mitigate regulatory / public policy risk.

[10] In addition, the third respondent was required to represent Bolt at meetings with stakeholders and engage with regulatory authorities in the domestic market. Operating from Johannesburg, she was the company’s senior lobbyist countrywide.

[11] The third respondent worked closely with Ethicore Consulting and Advisory Services (“ETHICORE”), whom she was entitled to instruct to perform services, related to her area of work, on behalf of Bolt.

[12] Ms F reported to Mr Kenneth Anye (“Anye”) the company’s Head of Public Policy: Africa. Anye was her direct report. She also reported to the company’s Vice President for Regulation and Public Policy, Mr Dominick Moxon-Tritsch (“Dominick” or the “Vice President”).

[13] Shortly after the completion of her probation period, the third respondent was charged with misconduct and ultimately dismissed. This is what occurred:

13.1 On 4 March 2020, Anye instructed Ms F to attend training at Cape Town, on 7 and 8 March 2020.[5]

13.2 Anye instructed her to return to Johannesburg, in the morning of 9 March, and she did so.

13.3 After her return (to Johannesburg) on 9 March, Ms F became aware that an important meeting would be held at Parliament, Cape Town (hereafter the “meeting”) the following day at 11h00.

13.4 Ms F was notified of the meeting on 9 March at 17h45.[6]

13.5 Ms F was informed that the meeting would begin at 11h00 on 10 March, with a media briefing, followed by a plenary session at 14h00.[7]

13.6 ETHICORE indicated that it would attend the meeting, though this appears to be at its own initiative rather at the instruction of Ms F.[8] It is unclear whose interests it intended to advance.

13.7 The meeting related to the impending National Land Transport Amendment Bill (“NLTAB”). The NLTAB meeting was extremely important to Bolt inter alia because it was likely to seriously impact on its business during the anticipated COVID19 lockdown.

13.8 The third respondent did not attend the NLTAB meeting in Cape Town.[9] Instead, she attended virtually, from Johannesburg. Bolt did not instruct Ms F to attend the meeting, though it appears it expected

her to do so without an instruction. Ms F alleges[10] that the NLTAB meeting was not a public meeting, Bolt did not intend to make any contributions there, and there would have been no opportunity for her to interface with the policy makers even if she had attended.

13.9 On 10 March, at approximately 12h26, Dominick, the Vice President, sent a WhatsApp on an internal group indicating that the NLTAB

meeting should have been attended by Bolt and not represented by consultants.

13.10 On 25 March, Dominick instructed Ms F to describe the steps she had taken to ensure that Bolt’s drivers were designated as

“essential services” during the impending COVID19 lockdown.

13.11 The third respondent responded to Dominick, by email, in a general manner, setting out the steps she had taken, in conjunction with

ETHICORE.[11] Unfortunately, she did not specify what steps she had taken, and what steps had been taken by ETHICORE. Nor did she specify what steps were taken through written correspondence and those taken telephonically. Bolt believed that the email was misleading. Ms F conceded that the email was misleading, but only in one respect. She says she mistakenly referred to the Minister of Health, when she should have referred to the Department of Health. Many of the steps she had taken were, according to Ms F, taken telephonically and there was therefore no record of such steps.

13.12 Bolt issued a final written warning (“FWW”) to Ms F for failing to attend the meeting. Thereafter, despite the FWW, she received a notice to attend a disciplinary hearing, where she would face three charges. At the insistence of the third respondent, the FWW was withdrawn by email.[12] At the disciplinary hearing, conducted virtually, according to the applicant, Ms F was extremely disruptive and had to be muted.

[14] The third respondent faced the following charges:

14.1 The first charge related to her failure to attend the NLTAB meeting. This charge was formulated as a refusal to obey a lawful instruction to attend the meeting (charge 1.1)[13] alternatively gross negligence by failing to attend the meeting.[14] (charge 1.2)

14.2 The second charge related to the email from Ms F to the Vice President which the company alleged was misleading or dishonest. Ms F accepted that her email was misleading but only in one respect.

14.3 The third charge related to unauthorised leave. Ms F pleaded guilty to the charge.

[15] The pleadings and the evidence at arbitration are somewhat unclear as to whether Ms F was dismissed for refusing to obey a lawful instruction or gross negligence. This was an issue of critical

importance[15] It seems to have escaped the commissioner’s attention, and the attention of the parties, that charges 1.1 and 1.2 were drafted in the alternative and Ms F could therefore not have been dismissed for both charges 1.1 and 1.2. If Ms F was dismissed for both charges, this would have been unfair. However, for the reasons identified in footnote 14, I assume, without deciding, that she was dismissed for gross negligence.

[16] There was no internal appeal, as contemplated in the disciplinary code and procedure.

Legal principles and analysis

[17] In Sidumo and another v Rustenburg Platinum Mines Ltd and others[16] the Constitutional Court held that the appropriate test to be applied in relation to reviews of arbitration awards of the CCMA is whether the arbitration award is one which no reasonable commissioner could reach on the material before him or her. In a further matter before the apex court, CUSA v Tao Ying Metal Industries and Others[17] the court held at para 76:

“76] It is by now axiomatic that a commissioner is required to apply his or her mind to the issues properly before him or her. Failure to do so may result in the ensuing award being reviewed and set aside. Recently, in Sidumo, the matter was put thus:

“It is plain from these constitutional and statutory provisions that CCMA arbitration proceedings should be conducted in a fair manner. The parties to a CCMA arbitration must be afforded a fair trial. Parties to the CCMA arbitrations have a right to have their cases fully and fairly determined. Fairness in the conduct of the proceedings requires a commissioner to apply his or her mind to the issues that are material to the determination of the dispute. One of the duties of a commissioner in conducting an arbitration is to determine the material facts and then to apply the provisions of the LRA to those facts in answering the question whether the dismissal was for a fair reason. In my judgment, where a commissioner fails to apply his or her mind to a matter which is material to the determination of the fairness of the sanction, it can hardly be said that there was a fair trial of issues.”

(Own emphasis)

[18] In Herholdt v Nedbank Ltd (COSATU as Amicus Curiae)[18] the Supreme Court of Appeal (“SCA”) held that the reasonableness test does not extinguish the procedural grounds for

reviews under section 145(2)(a) of the LRA. However, the procedural defects must be significant, indicating that the arbitrator misconceived the nature of the enquiry, or arrived at an unreasonable result.

[19] In Goldfields Mining SA (Pty) Ltd v CCMA and others[19] the Labour Appeal Court (“LAC”) reminded us that the concept of reasonableness embraces a wide range of outcomes, many of which may be reasonable. The review test is stringent and requires the court to consider all the material before the commissioner. The outcome should not be evaluated on a piecemeal basis, but on the totality of the evidence.

[20] In Head of the Department of Education v Mofokeng and others[20] the LAC clarified that if an arbitrator failed to apply his or her mind to the material issues, this would usually suggest that the outcome is unreasonable or that the arbitrator misconceived the nature of the enquiry. If a mistake of fact or law occurs, what matters is its materiality and whether the error had a distorting effect on the outcome. The mere fact that the arbitrator’s

reasoning was flawed is insufficient because the court must consider if the outcome is unreasonable in light of all the evidence.

[21] It is apparent from the record that the principal reason why the third respondent was dismissed related to her nonattendance of the NLTAB meeting in Cape Town on 10 March 2020. However, in evaluating the evidence, the commissioner committed a vast number of fundamental errors.

21.1 To begin with, the commissioner did not take into consideration that the first charge was drafted in the alternative. This error was so fundamental that it tainted the entire arbitration. The arbitrator does not apply his mind at all to whether the evidence proved gross negligence. The arbitrator deals with this critical issue in the following terse manner:

“[48] The applicant’s second charge speaks to the same incidence. Under the circumstances I strongly believe that the Applicant did not fail to perform her duties as per the charge”.

21.2 The commissioner committed a further material error. He considered that the third respondent had been instructed to attend training on the same date as the NLTAB meeting. In para 46, the commissioner states: “…it was clear that the instruction that was given to the Applicant was not to attend the meeting but to attend the training.”

21.3 The commissioner failed to appreciate that senior managers do not require guidance and training in the same way as blue-collar employees might. This error had a significant distorting effect on the outcome. In this respect the commissioner states, at para 46: “At no stage did the Respondent’s witnesses testified (sic) about the instruction given by the Applicant’s manager on the 9 March after the date of the meeting was confirmed.” The commissioner failed to appreciate that a senior manager should not require an instruction to attend a meeting of vital importance to the business.

21.4 The commissioner failed to appreciate that the third respondent was not punished twice for the same offence. The record revealed that the third respondent asked the company for confirmation that the FWW had been withdrawn, and an email was sent to the employee confirming that it had been withdrawn. This was common cause between the parties.

[22] There are further material mistakes committed by the commissioner, many of which had a significant distorting effect on the outcome. It is unnecessary to identify all these errors. What is clear is that, on a totality of the evidence, the outcome was one which no reasonable decisionmaker could reach on all the material before him. For these reasons, the award falls to be reviewed and set aside.

[23] Given that the record is incomplete, the court is not in a position to fairly determine the dismissal dispute. In the circumstances, the dispute is referred back to the CCMA for arbitration before an arbitrator other than the first respondent. The parties, and the CCMA, should both give careful consideration on methods to secure the arbitration record.

Conclusion

[24] For the reasons set out above, the arbitration award under CCMA case reference GAJB10510-20 is reviewed and set aside. The CCMA is directed to enrol the dismissal dispute for arbitration before a commissioner other than the first respondent. There is no order as to costs.

RN Daniels

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Adv A Cook

De Beer, Mokoele Attorneys

For the Respondent:

Mr KF Mphepya

Mphepya Attorneys

[1] See para 13 below

[2] SA Social Security Agency v Hartley & others (2023) 44 ILJ 1334 (LC) at para [65]

[3] Balasana v Motor Bargaining Council & others (2011) 32 ILJ 297 (LC) at para 27

[4] Fountas v Brolaz Projects (Pty) Ltd & others [ 2016] JOL 35703 (LAC) at paras 31-33.

[5] The commissioner seems to have misunderstood the evidence. The commissioner believed that Ms F could not attend to the meeting and to the training. The commissioner did not understand that these events occurred at different times and dates.

[6] The company’s case was that this afforded Ms F adequate time to return to Cape Town to attend the meeting at Parliament in relation to National Land Transport Amendment Bill.

[7] It appears from the record (transcript and documents) that the meeting was scheduled by Parliament, at short notice, and government

had earlier indicated that the meeting could proceed on 10 March.

[8] The commissioner misunderstood this evidence.

[9] The commissioner did not consider the importance of the meeting for the business of the applicant.

[10] I note these allegations though, as previously mentioned, much of the third respondent’s evidence (under cross examination) is missing.

[11] The company alleged that ETHICORE had denied that several of the steps (which Ms F alleged she had taken) were in fact taken.

However, the company did not call ETHICORE to testify at the disciplinary hearing or at the CCMA. Accordingly, at arbitration,

this was inadmissible hearsay evidence.

[12] The commissioner failed to appreciate that the final written warning was withdrawn prior to the disciplinary hearing. Instead, at para 43 of the award, the commissioner stated: “To me, having considered that the Applicant was already sanctioned it is questionable as to why the outcome of her hearing was dismissal.”

[13] The commissioner failed to appreciate that the training was completed on 9 March, and that Ms F could have attended the meeting

the following day. She was not required to choose between these activities.

[14] The commissioner failed to understand that the first charge was drafted in the alternative. The commissioner considered only whether Ms F had refused to obey a lawful instruction (the first alternative). He ignored the second part of the first charge (gross negligence). At the disciplinary hearing, the chairperson stated: “The employee holds a very senior position. She is expected to perform her duties and functions diligently and without supervision (see document titled “Final Outcome to Disciplinary Hearing” at para 1.4). At the CCMA, Ms F stated that she was dismissed for “gross misconduct, gross negligence, and dishonesty” CCMA transcript p11 lines 8 – 25. It is arguable that the third respondent was dismissed, inter alia, for gross negligence.

[15] In Fidelity Cash Management Service v CCMA & others (2008) 29 ILJ 964 (LAC) at para [32] Zondo JP (as he was then) stated: “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.”

[16] 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC)

[17] (2008) 29 ILJ 2461 (CC) (18 September 2008)

[18] (2013) 34 ILJ 2795 (SCA)

[19] (2014) 35 ILJ 943

[20] [2015] 1 BLLR 50 (LAC)