HRR Schaefer Vervoer (Emds) Bpk v SATAWU obo Moleta and Others (JR1445/14) [2018] ZALCJHB 28 (6 February 2018)
The court found that the arbitrator failed to appreciate material factors, including the seriousness of the driving offence, the position of trust held by the employee, and the evidence that the trust relationship had been destroyed. The arbitrator incorrectly substituted his own view of the appropriate sanction...
Source-derived case information.
- Citation
- [2018] ZALCJHB 28
- Parties
- Applicant: HRR Schaefer Vervoer (EMDS) Bpk; Respondent: SATAWU obo Mfana Moleta; Respondent: NBCRFLI; Respondent: Thabang T Serero N.O.
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR1445/14
- Procedural Posture
- Review Application / Judgment
- Outcome
- Application to review and set aside the arbitration award is granted; the dismissal of the first respondent is found to be substantively fair.
- Judges
- B Whitcher
- Legal Topics
- Unfair Dismissal, Substantive Fairness, Trust Relationship, Arbitration Review
Source-derived case record
Summary, issues, holding and outcome
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Parties
HRR Schaefer Vervoer (EMDS) Bpk
Applicant
SATAWU obo Mfana Moleta
Respondent
NBCRFLI
Respondent
Thabang T Serero N.O.
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the arbitrator correctly found the dismissal of the first respondent to be substantively unfair.
- 2 Whether the arbitrator failed to appreciate material factors regarding the seriousness of the offence and the trust relationship.
- 3 Whether the arbitrator exceeded his powers by substituting his own sanction for that of the employer.
Ratio Decidendi
The court found that the arbitrator failed to appreciate material factors, including the seriousness of the driving offence, the position of trust held by the employee, and the evidence that the trust relationship had been destroyed. The arbitrator incorrectly substituted his own view of the appropriate sanction rather than determining whether the employer acted fairly. The dismissal was substantively fair given the circumstances, and the arbitration award was set aside and substituted with a finding of substantive fairness.
Court Disposition
Application to review and set aside the arbitration award is granted; the dismissal of the first respondent is found to be substantively fair.
Orders
- The arbitration award issued by the third respondent under the auspices of the second respondent is set aside on review and substituted with an award that the dismissal of the first respondent was substantively fair.
- The application to make the award an order of court is dismissed.
Full Case Text
Judgment text and source record
45 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 1445-14
Not Reportable
In the matter between:
HRR SCHAEFER VERVOER (EMDS) BPK
Applicant
and
SATAWU obo MFANA MOLETA
First Respondent
NBCRFLI
Second Respondent
THABANG T SERERO N.O
Third Respondent
Heard: 6 February 2018
Delivered: 6 February 2018
EX TEMPORE JUDGMENT
WHITCHER, J:
[1] This is an unopposed application to review and set aside the arbitration award dated 13 June 2014 issued by the third respondent, in which award he found that the first respondent’s dismissal was substantively unfair and ordered the applicant to retrospectively reinstate the first respondent and pay him back-pay of eight (8) months’ salary.
[2] The first respondent’s service was terminated on 13 September 2013, after he was found guilty of negligent and/or dangerous driving and disobeying traffic ordinances.
[3] It is evident from the award that the arbitrator accepted that the applicant had proved that the first respondent did attempt to reverse a 22-meter vehicle (consisting of a horse and trailer) in on-coming traffic, on a blind rise and in misty weather conditions. Evidence was also led on the high value of the vehicle and its contents.
[4] Further thereto the arbitrator found that the employee conduct was serious and had been potentially dangerous to life and property.
[5] The arbitrator, however, indicated that he could not find that the employee’s conduct had destroyed the trust relationship, as it was the employee’s first offence. In the result, he found that the sanction of dismissal was unfairly “harsh”. In his view, the employee should have been issued with a warning.
[6] I agree with the applicant that, in reasoning so, the arbitrator failed to appreciate the following material factors:
(i) The employee had been employed in a position of trust. He was employed as a professional code 14 driver, he was entrusted with valuable company property and clients’ loads and trusted to drive with the necessary care without supervision.
(ii) The offence was a serious driving violation, and made more serious by the potential damage to life and valuable property that could have been caused had there been a collision. The courts have held that where the consequences of a single act or omission are particularly serious or where an employee holds a position of trust in which negligence on a single occasion may have had disastrous consequences, dismissal may be justified on the first occasion.[1]
(iii) The applicant led evidence to the effect that it could no longer trust the employee as a driver, particularly with such a high end vehicle.
(iv) The employee conceded during cross examination that his offence was a dismissal offence.
[7] Had the arbitrator appreciated these factors and case law on the subject, he would have been constrained to find that the dismissal was substantively fair.
[8] Further to the above, it was not within the purview of the arbitrator to decide what he would have done (for example, issue a warning). The only decision he had the power to decide was whether the applicant acted fairly in dismissing the employee.
[9] In light of my findings, there is no need to consider whether the back-pay awarded was unreasonably excessive.
[10] The applicant agreed not to pursue a cost order.
Order:
[11] In the premises, the following order is made:
1. The arbitration award issued by the third respondent under the auspices of the second respondent is set aside on review and substituted with an award that the dismissal of the first respondent [M Moleta] was substantively fair.
2. The application to make the award an order of court is dismissed.
___________________________
B Whitcher
Judge of the Labour Court of South Africa
APPEARANCES:
For the applicant:
Ms S Bernhardt
Instructed by:
Yusuf Nagdee Attorneys
For the first respondent: Mr B Mokoena, union official
[1] See for instance, Somyo v Ross Poultry Breeders (Pty) Ltd (1997) 7 BLLR 862 (LAC)