Cryogas Express (Pty) Ltd, a subsidiary of Onelogix (Pty) Ltd v Ntuli and Others (JR 2775/17) [2022] ZALCJHB 23 (17 February 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2775/17

In the matter between:

CRYOGAS EXPRESS (PTY) LTD, A SUBSIDIARY OF

ONELOGIX (PTY) LTD

Applicant

and

THUBALIHLE KHULEKANI NTULI

First Respondent

NATIONAL BARGAINING COUNCIL FOR THE ROAD

FREIGHT AND LOGISTICS INDUSTRY Second

Respondent

COMMISSIONER MOTLATSI PHALA Third

Respondent

Determined: On papers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email. The date and time for hand-down are deemed to be 17 February 2022.

JUDGMENT

MAHOSI. J

Introduction

[1] The applicant launched an application in terms of section 145 of the Labour Relations Act[1] (LRA) for an order to review and set aside the arbitration award dated 06 November 2017, issued by the third respondent (the arbitrator) under the auspices of the second respondent, the National Bargaining Council for The Road Freight and Logistics Industry (the bargaining council), under case number GPRFBC45578.

[2] Couple with this application is the application for an order to condone late filing of the record and non-compliance with rule 7A(8).

[3] The first respondent opposed both applications, whilst the second and third respondents

filed a notice to abide by the Court order.

Condonation application

[4] Clause 11.2.2 of the Labour Court Practice Manual requires that the record be filed within 60 days of the date on which the applicant is advised by the Registrar that the record has been received from the CCMA or

bargaining council.

[5] In the current matter, the record was filed one year and one month out of the prescribed

time limits. The applicant attributed the reason for the delay to its unawareness of the time periods to file the record timeously or at all prior to instructing its attorneys of record to represent it. It is the applicant’s submission that it did not seek legal advice in order to save legal costs. Further that it copied a precedent review application, but failed to appreciate the import of further obligations imposed upon it.

[6] The applicant further submitted that it had strong prospects of success in its review

application as the video evidence clearly showed two passengers and one driver in the truck at the time it was located 7 kilometres away from the border post and in transit. Further that the truck drove 240 kilometres at the time the video evidence was recorded which is sufficient proof that there was no opportunity for the runner, who was one of the passengers, to exit the truck as contended by the first respondent.

[7] The applicant submitted that the prejudice it would suffer would be far-reaching and

permanent in nature if condonation is not granted, as the refusal would effectively deny it an opportunity to have this matter fairly and fully determined. The applicant further submitted that should it be successful, then the delay would have been largely academic and therefore there will be no prejudice to any party. Further that should it be unsuccessful, the prejudice the first respondent may have suffered could be addressed by the Court through an appropriate cost order.

[8] As aforesaid, the first respondent opposed this application. However, having regard to the pleadings filed as well as the record, I am of the view that this matter deserves a full determination and I, therefore, grant condonation.

Background

[9] The first respondent commenced employment with the applicant on 30 May 2016 as a driver and was earning R9 211.62 per month. He was charged with gross insubordination in that on 11 January 2017, he allegedly transported passengers in the applicant’s truck while driving 7 kilometres north of the Beitbridge border post in Zimbabwe.

[10] Subsequently, the applicant subjected the first respondent to a disciplinary enquiry. Following the disciplinary hearing, the first respondent was found guilty on the charge levelled against him. As a result, he was dismissed on 25 January 2017.

[11] Aggrieved by the applicant’s decision to dismiss him, the first respondent referred an unfair dismissal dispute to the bargaining council for conciliation, which was unsuccessful. This prompted the first respondent to refer the dispute to arbitration, which was held on a number of days and concluded on 01 November 2017.

[12] On 06 November 2017, the arbitrator issued an arbitration award, in terms of which he found that the first respondent’s dismissal was substantively unfair and ordered the applicant to reinstate him retrospectively and to pay him back-pay amounting to R101 327.82. It is this award that is the subject of this application.

Grounds of review

[13] The applicant challenged the award on the basis that the arbitrator failed to consider material evidence before him and to apply his mind to the rule that its drivers were not permitted to carry passengers.

Ground of opposition

[14] The first respondent opposed the application mainly on the basis that the applicant’s submissions were without merit in that the arbitrator indicated in his award that he considered material evidence such as the video clip and the GPS tracking system and found it inconclusive.

[15] On the ground that the arbitrator failed to apply his mind to the rule that its drivers were not permitted to carry passengers, the first respondent submitted that the arbitrator observed, in his award, that no evidence was led by the applicant on the approximate point at which the passengers were picked up and at what point the number of passengers increased to two.

Applicable law and analysis

[16] The arbitration awards are reviewable in terms of section 145 of the LRA, which provides that

any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the commission or council may apply to the Labour Court for an order setting aside the arbitration award.

[17] Section 145(2) defines a defect as the commissioner’s misconduct in relation to the duties of the commissioner as an arbitrator, gross irregularities in the conduct of the arbitration proceedings, exceeding the commissioner's powers or improperly obtaining an award. The key question is whether the commissioner’s decision is one that a reasonable decision-maker could not reach.

[18] The applicant’s case was that the first respondent who was driving from Zambia to South Africa picked up passengers while driving through Harare and that the drive-cam activated some distance away from the Beitbridge border post where he eventually picked up a runner who was to assist him with the necessary paperwork to cross the border. The first respondent denied that there were passengers in the truck.

[19] To prove its case, the applicant presented a video clip that was derived from the drive-cam which was mounted on the first respondent’s truck to prove that the activation of the drive cam occurred long before he got to the place where the first respondent picked up a runner. According to the applicant, the video clip showed two passengers in the truck and none of them could have been the runner.

[20] The applicant further presented the report of the satellite tracking system to prove that the first respondent stopped at a BP garage at the place called Redan, which was about four to five kilometres from the border and which was consistent with the evidence that the runner was picked up from that spot.

[21] On the applicant’s version that the drive-cam had already activated at the point when the first respondent picked up a runner which, according to the applicant, is the confirmation that there were passengers in the truck some considerable distance away from the point at which the runner was picked up, the arbitrator made an observation that critical evidence was not led on two things. The first was the approximate point at which the passengers were picked up and the second was an allegation that at the time the first respondent picked up the runner, the number of passengers went up to three.

[22] The arbitrator further found that the video clip relied on by the applicant was not a model of clarity. Further that it was impossible to confirm with certainty the images it tried to project and that the lowering of the sun vicar compounded the situation. As a result, the arbitrator found that the images were inconclusive. The arbitrator was, therefore, not satisfied that the applicant led sufficient evidence to show that the first respondent committed the offence he was charged with and concluded that his dismissal was unfair.

[23] On the ground that the arbitrator failed to consider material evidence, the applicant submitted that it differed from the arbitrator’s finding that it failed to lead evidence regarding the approximate point at which the passengers were picked up and to prove the allegation that at the time the first respondent picked up the runner, the number of passengers went up to two. The applicant further differed with the arbitrator’s finding that the images presented as evidence were inconclusive and that the video clip was not a model of clarity.

[24] The fact that the applicant differs from the arbitrator’s findings cannot be a basis on which the award can be reviewed and set aside. The reading of the award evinces that the arbitrator assessed the evidence of all the witnesses and preferred the first respondent’s version. There is, therefore, no merit to the submission that he failed to

consider material evidence

[25] The arbitrator had the advantage of being present at the proceedings, considered the evidence before him and then made a decision based on the probabilities. It is clear that the applicant could not sway him to favour its version on the evidence before him. It is not for this Court to interfere with the commissioner’s reasoning for choosing one version over another when there were conflicting versions unless the decision is so implausible as to render it unreasonable.

[26] The applicant further submitted that the arbitrator failed to apply his mind to the rule that its drivers were not permitted to carry passengers because the video evidence that shows two passengers in the truck with the first

respondent contradicts the latter’s version that the only passenger he had was the runner who assisted him with paperwork at the border from Zimbabwe to South Africa. It was the applicant’s further submission that the arbitrator erred in his concern with the location where the passengers were picked up and failed to apply his mind whether there were three people in the truck at the time the dashcam video was taken.

[27] As aforesaid, the arbitrator was present when the video evidence was presented. He assessed the

evidence and concluded that it was not sufficient to prove that the first respondent transported passengers while travelling 7 kilometres north of the Beitbridge border post. The arbitrator could not establish, on the evidence before him, that there were three people in the truck at the time the dashcam video was taken as he found that the video clip was not clear enough to provide proof thereof. There is therefore no merit to the ground that he failed to apply his mind to the rule that its drivers were not permitted to carry passengers.

[28] In light of the above, the applicant has clearly not established any basis upon which this Court could find that the arbitrator’s award was reviewable. As such, it failed to discharge the onus of establishing that the arbitrator either committed misconduct in relation to his duties or a gross irregularity in the conduct of the arbitration proceedings and/or

exceeded his powers.

[29] As such, it is my view that the arbitrator’s decision is not a decision that a reasonable decision-maker could not reach. It is a reasonable decision that is justified by the evidence that was placed before him. There is, therefore, no reason for this Court to interfere with her award.

Costs

[30] With regard to costs, I am of the opinion that the requirements of law and fairness dictate that there should be no order as to costs.

[31] Accordingly, the following order is made:

Order

1. The application for an order to review and set aside the arbitration award dated 06 November 2017, issued by the third respondent under the auspices of the second respondent, under case number GPRFBC45578 is dismissed.

2. There is no order as to costs.

__________________

D. Mahosi

Judge of the Labour Court of South Africa

Representatives

For the applicant: Advocate Mairead Edwards

Instructed by:

Cliffe Dekker Hofmeyr Incorporated Attorneys

For the third respondent: Mr Anndine Dippenaal of Kirchmann’s Attorneys

[1] Act 66 of 1995 as amended.