Cash Paymaster Services (North West) (Pty) Ltd v Van Wyk NO and Others (JR2319/10) [2014] ZALCJHB 380 (10 October 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case number: JR 2319/10

In the matter between:

CASH PAYMASTER SERVICES (NORTH WEST)

(PTY) LTD

Applicant

and

COMMISSIONER BRAAM VAN WYK N.O.

First Respondent

THE COMMISSIONER FOR CONCILIATION

MEDIATION AND ARBITRATION

Second

Respondent

MUGISHA EMMANUEL MPAMIZO

Third Respondent

Heard: 4 July 2014

Delivered: 10 October 2014

JUDGEMENT

EDMONDS AJ:

Introduction

[1] This is an application to review and set aside the award of the first respondent dated 30 August 2010.

Background

[2] The third respondent was employed as a Support Supervisor in the Cash in Transit division of the applicant on 20 October 2008.

[3] He was dismissed on 03 July 2009. He was employed on a fixed term contract which would have expired less than nine months later.

[4] On the weekend of 25 and 26 April 2009, the third respondent was on standby.

[5] Late on Saturday 25 April 2009 the third respondent, travelling at a speed of 80 km/hr on a gravel road, lost control of his vehicle and rolled it.

[6] The third respondent could not provide a reason for his loss of control, initially claiming that the vehicle’s rear tyre had burst. It was found, upon investigation, that this was not correct.

[7] After the accident, the third respondent was given an instruction not to allow the vehicle to be towed away from the accident scene. The third respondent allowed the vehicle to be towed away prior to it being inspected.

[8] The third respondent was charged with:

‘1. Negligently or knowingly failing to carry out policies and procedures, or allowing unauthorised persons to gain access to the assets or systems of the company through compromise of keys, access codes, etc. (paragraph 4.4.17 of the disciplinary code and procedure) in that on 26 April 2009 you failed to adhere to fleet policies and procedures when you had a motor vehicle accident with a company vehicle with registration number CML 992 NW when you lost control of the said vehicle on a gravel road.

2. Refusing and/or failing to execute a legitimate, fair instruction from a superior (paragraph 4.4.2 of the disciplinary code and procedure) in that on 26 April 2009 you deliberately failed to adhere to an instruction from your manager, Mr M. Rubelli when he instructed that you were not to allow any towing company to tow the company vehicle with registration number CML 992 NW away before he had investigated the motor vehicle accident that you had on the said day.

3. Damage or loss suffered by the company through the disregard of its rules and procedures (paragraph 4.4.19 of the disciplinary code and procedure) in that the company suffered damages as a result of your actions on the said day as the company vehicle with registration number CML 992 NW is beyond economical repair’.

[9] That the Applicant had a policy requiring that its vehicles travel at a maximum speed limit of 50 km/hr on gravel roads under normal conditions. This was common cause. The Third Respondent should have been travelling at 50 km or less per hour because of poor road conditions. The vehicle the Third Respondent was driving was uneconomical to repair.

The record and the award

[10] The Applicant submitted that the First Respondent’s award was reviewable inter alia by reason of bias on the part of the First Respondent. It pointed to a number of comments made by the First Respondent in the record and in the award. Where underlining appears in the quoted paragraphs, it is that of the First Respondent and not of this Court.

[12] The First Respondent made the following finding in paragraph 33 and 34 of his award:

‘… As I have made it rather clear in this matter, I remain utterly unconvinced that the applicant was fairly dismissed. In fact, Mr

Mpamizo in a nutshell was dismissed for making an accident whilst conceding that he drove at 80km per hour on a gravel road instead of 50km per hour (seep.2 of exhibit 3). Nothing more and nothing less. I without hesitation find the applicant not remotely guilty on all other allegations except for nominally exceeding the speed-limit and having a vehicle accident.

[34] Ironically, had the applicant at the time of making his statement of the accident “lied” and simply stated that he drove at 50km per hour instead of 80km when he made the accident this outrageous dismissal would never have happened’.

[13] This finding appears to have been as a consequence of a debate the First Respondent conducted, in the course of the arbitration

proceedings, with the Applicant’s representative in which he challenges the Applicant’s version as to the speed-limit of 50km per hour despite it being common cause:

‘COMMISSIONER: (Inaudible) some merit that he might not have been quite aware of the 50. There was nobody to monitor him at the time. He could simply have said after the incident “I drove at 50 kilo’s.” It would have been suicidally stupid of him to say “I drove 80 kilos if I know I am only supposed to drive 50.” He made the statement (inaudible” 181. He said he was (inaudible) before the accident. Having known there is no one that saw him. Had he known he could only drive at 50 it would have been a simple stroke of (inaudible) to say 50 and yet in all honesty he said 80.”…All I am saying is the test of a reasonable person no guy will make a statement, happily make a statement that says “I drove 80. I know I am only allowed to drive 50 and there was no one to see me. I would rather write there 30.

MS MC DONALD: (Inaudible). Unfortunately during my line of work I sat and I saw many strange and rare things. I sit here and I am putting it to you sir that you are fully aware of the fact that the Company policies and procedures did not allow you to drive more than 50. I mean you yourself have even presented a document here…(intervenes)

COMMISSIONER: I have heard enough of that because we can sit here and throw each other with mud and talk until the cows come home. Is there anything else that you want to ask this gentleman because you are going to address me in written closing arguments and I want to go and fetch the closing argument (inaudible)…

MS MC DONALD: Sir I am putting it to you you mention in your own statement that you (inaudible) Company policies and procedures,,,(intervenes)

COMMISSIONER: This is unfair (inaudible). I am switching the tape off. I am leaving now?? (mechanical interruption) Thanks for (inaudible) the Company. Let us say that the Applicant had impeccably complied with all the instructions had waited impeccably – what difference would it have made? How could the Company have been less prejudiced?’.

[14] The First Respondent then made reference, in his award, to his decision, in the course of the arbitration, to’…revert

back to conciliation as provided for in Section 138 (3) of the LRA…” and what had been said to the applicant in the course of that conciliation including the fact that “despite” the first respondent’s making it clear during that conciliation that the applicant was “…proceeding with a “frivolous and vexatious case”…” it “persisted at its very own peril to do so’.

[15] The First Respondent then proceeds, in paragraph 40 his award, to issue what would appear to be a challenge to the Applicant and to this Court:

‘It would indeed be illuminating to see whether the Labour Court – should this award go on review - will be of the view that I was “biased”, by entirely in good faith disclosing the above to the employer…’

[16] The First Respondent also granted maximum compensation to the Third Respondent, being twelve months financial compensation i.e. R120 000.00, despite the third respondent only requesting six month’s compensation in his closing Heads of Argument and despite it being common cause that the Third Respondent’s contract would have expired less than nine months after his dismissal.

[17] To my mind, the comments of the First Respondent in the course of the arbitration and in his award make it clear that he had formed a view prior to hearing all the evidence in the matter which was clearly in conflict with the evidence before him and the common cause facts and that there was actual bias on his part.

[18] The conclusions to which the First Respondent arrived, on the basis of the undisputed facts, are also one’s to which, in my view, no reasonable Commissioner could arrive.

Order

[19] In the circumstances I make the following order:

19.1. The award issued by the first respondent dated 30 August 2010 under case number GATW 8733-09, is reviewed and set aside.

19.2. The award is substituted by the following:

“The dismissal of the applicant was substantively and procedurally fair.”

19.3. There is no order as to costs.

______________________

Edmonds, AJ.

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Adv. W Hutchinsons instructed by Fluxmans Inc.

For the Third Respondent: Mr A Goldberg instructed by Goldberg Inc.