Imperial Retail Logistics (Pty) Ltd t/a TFD Network Africa v Phala and Others (JR 2110/2015) [2022] ZALCJHB 49 (8 March 2022)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

CASE NO: JR 2110/2015

In the matter between:

IMPERIAL RETAIL LOGISTICS (PTY) LTD

t/a TFD NETWORK AFRICA

Applicant

and

PHALA, N.

First Respondent

NATIONAL BARGAINING COUNCIL FOR

THE ROAD FREIGHT & LOGISTICS INDUSTRY

Second Respondent

ALFRED MASELANE

Third Respondent

JONAS RATHANKGA

Fourth Respondent

ISRAEL SITHOLE

Fifth Respondent

Date of hearing: 2 March 2022

Date of judgment: 8 March 2022. Delivered by email.

JUDGMENT

VAN NIEKERK J

Introduction

[1] The third to fifth respondents (the employees) were employed by the applicant until 12 June 2014, when they were dismissed for gross dishonesty and the unauthorised removal of stock. They contested the fairness of their dismissal and referred the dispute to arbitration. The hearing was conducted by the first respondent (the arbitrator),

who held that the employees’ dismissal was unfair, and reinstated them with retrospective effect. The applicant seeks to

review and set aside that decision.

Factual background

[2] The award summarises in detail the evidence that was led at the hearing. For present purposes, the following, more truncated summary is sufficient. The applicant is engaged in logistics and distribution. The third respondent was employed as a driver; the fourth and fifth respondents as truck assistants. The driver’s responsibility is

to drive the applicant’s trucks to specified locations, and off-load them with his assistants. On 4 May 2014, the employees left the applicant’s Gosforth Park premises in a truck with registration WLC 225 GP, loaded with various Colgate products, and bound for Newcastle and Estcourt. The applicant engages a security company to secretly follow trucks after they have left the

applicant’s premises, to observe any unlawful activity en route. On the day in question, an employee of the security company, Samuel Matsheletja, followed the truck, His evidence was that he observed the employees engaged in illicit activity. He submitted a statement to the effect that the truck stopped in Volksrust at around 23:35. The driver of the truck knocked on the door of the Fruit and Veg shop, the door was opened, and the driver and crew offloaded boxes from the truck. The truck then moved to a truck stop. Matsheletja went into the shop and spoke to the owner Hammed. He found seven boxes of Protex soap and was told that the boxes had been bought from the driver and crew for R3500.00. He phoned his supervisor who said that he would send two persons to check the stock. These persons duly arrived, photographed the boxes, and took them back to the applicant.

[3] Hammad made a statement in which he acknowledged returning the boxes, and recorded that he had bought them illegally from the driver and crew of a truck with registration WLC 225 GP. He stated that he had paid R

3 500 for the boxes.

[4] Matsheletja identified the employees as the persons he had seen offloading the boxes from the side of the truck, which was secured by what he referred to as ‘sails’. It was put to him in cross examination that the employees would say that its is not possible to remove goods form the side of the truck; that it was possible only to remove goods from the back of the truck, which remained sealed. The fourth respondent, the only employee to testify, did not deal with this issue in his evidence. Matsheletja testified that when he and Hammed were moving the boxes from the shop, the police stopped outside the shop and asked what was happening. They spoke to Hammed, after which they left.

[5] Matsheletja also testified that he had been told by Mr Potgieter, employed by the applicant as a risk manager, and who later arrived on the scene, that the boxes belonged to the applicant.

[6] Potgieter testified that he received a telephone call from the manager of the applicant’s Gosforth Park depot, concerning stock that had been recovered in Volksrust by a person by the name of Samuel. Potgieter drove to Volksrust, arriving there between 3 and 4am. He met Samuel (Matsheletja), whom he did not know personally but who took him to the VK Fruit and Veg at the corner of Nelson Mandela Dr. He took photographs of the boxes in question and downloaded a map of the location of the shop. Potgieter stated that he took the boxes back to the depot.

[7] The fourth respondent, the only employee to give evidence, testified that he and the other employees left the depot on 4 May 2014 at approximately 7 pm, and decided to take a break in Volksrust. They were sleeping in the truck when they heard a knock, and looked down to see the police who asked them what they were doing in the truck. He testified that the employees told the police that they were resting and sleeping; the police heard that there was ‘somebody who is putting out the allegation that is saying that you are offloading the goods from the truck right now’. The fourth respondent stated that the employees told the police that they had just arrived, that the truck was still sealed and that they had not opened the truck or taken any goods out of the truck. The police checked, found that the truck was still sealed and went to search other trucks the fourth respondent denied that the employees alleged extra stock onto the truck, and that any customer had claimed a shortfall in delivery.

The award

[8] In his award, the arbitrator admitted the statement by Hammed into evidence, despite its hearsay nature. He noted however that there were a number of ‘disconcerting points’ that arose from Matsheletja’s cross examination. He had stated that he had not taken photographs of the street names but testified that the store was located on Louis Trichardt Street and Nelson Mandela Drive. In contrast, Potgieter had gone to ‘extreme lengths’ to take photographs of the store and the street names. In his statement, Hammed had written that he was the only store located at ‘Lingsnite Street No 15’.

[9] Secondly, Matsheletja testified that he had observed the driver alight from the truck, approach the store knock and speak to someone at the door when it was opened. The driver went back to the truck where he and the crew offloaded boxes and took them into the store. The arbitrator observed that although Matsheletja was in possession of the camera, ‘he did not have the presence of mind to take photos’. Given Matsheltja’s evidence as to his proximity to the truck ‘there was at an opportunity to take at least one short (sic).

[10] Thirdly, the arbitrator observed that it was around midnight when Matsheletja says he went into the store to speak to the owner, but there was no evidence as to how he persuaded Hammed to open the store. While he stated that he found the seven boxes in the store, ‘he did not use his camera to capture this critical piece of evidence’. The photos merely depict ‘the side of a box’ with Matsheletja stating that his focus was on the barcode.

[11] In regard to the photographs, the arbitrator observed that there was also ‘controversy surrounding who took the photo, the device used in the date of the photos.’ Matsheletja could not recall which photographs he had taken when shown the bundle containing two photographs; Potgieter on the other hand admitted to taking photos depicting the store but denied having taken photographs of the boxes, contrary to what Mathseletja had testified. The arbitrator regarded this as a serious contradiction and lack of corroboration.

[12] Insofar as the evidence concerned the presence of the police, Matsheletja denied calling the police but stated that they came as he and Hammed were carrying boxes to his vehicle. The police asked them what was happening and before he could say anything they pulled Hammed aside, spoke to him and then left. The arbitrator then comes to the following conclusion: ‘The alleged accomplice was the only person who spoke to the police instead of a security officer who had just discovered the offence. This is highly improbable.’

[13] The arbitrator went on to draw the following conclusions:

5.19 The evidence of the applicants was that while they were sleeping in the truck the police approached them and advised that a person in a black car was making allegations that they were offloading boxes. The truck was checked, seals were found to be intact and the police departed. The sequence of events appear to confirm the evidence of the applicants that the police were indeed sent to them by unknown person in a black car.

5.20 The loading procedure was explained comprehensively by the applicants and one thing stood out. They were indeed security checks in place during the process of loading. There were also cameras which kept the process under surveillance, however Janse van Vuuren claimed that they relied on the trust of the employees and conveniently the camera in the cage was not working which was denied.

5.21 The applicants returned from Newcastle on 5 May 2014, they were debriefed and went home. At that time Potgieter was already aware of the “incident”. But they were allowed to continue working, entrusted with the same cargo on a day-to-day basis until 23 May 2014 which defies logic especially taking into account that the offence they committed was said to be serious.

5.22 Investigation of the respondent with a view to linking the applicants to the offence supposedly committed on 4 May 2014 was wholly inadequate in all material respect. As a result the respondent failed to lead sufficient evidence to show that the dismissal of the applicants was substantively fair.

[14] On this basis, the arbitrator ordered that the employees be reinstated.

Grounds for review

[15] The applicant contends that the arbitrator committed a reviewable irregularity by failing properly to consider the probabilities of the competing versions before him. The applicant submits that the arbitrator drew factual inferences and assumptions not supported by the evidence and appear to require of the applicant to prove its case on the standard higher than that of a preponderance of probabilities. In particular, the applicant contends that the arbitrator’s rejection of the applicant’s version, and in particular Matsheletja’s evidence, had no basis. To the extent that the arbitrator took issue with the fact that Matsheletja failed to take photographs of the employees offloading the items from the truck and the seven boxes of soap, the applicant submits that the arbitrator fails to explain what particular inference he draws from this observation. The fact that Matsheletja did not take the photographs that the arbitrator thought were necessary did not call the credibility of his version into question. Insofar as the arbitrator questioned the plausibility of the version that Hammed would open the door of the shop at midnight, this observation is based on the incorrect assumption that the doors closed. The evidence given by Matsheletja was that he went into the shop after the employees had moved the boxes into the store. In those circumstances, it is completely plausible that the doors opened. Insofar as the arbitrator observed that Matsheletja conceded that there were other trucks in the vicinity of the area, the applicant submits that it was obvious that they would have been other trucks, since the employees, after they left the store, parked in a truck stop. What the arbitrator overlooked was the fact that there was only one truck belonging to the applicant, bearing a particular registration number, that in which the employees were travelling. To the extent that the arbitrator took issue with Matsheletja’s evidence that the police spoke only to Hammed and not to him, the applicant submits that no particular significance can be attached to this and that in all probability, the police randomly selected one person to speak to. What the evidence does confirm, and what the arbitrator failed to ask, is why the police, in the first place had they not witnessed some suspicious event. On the probabilities, the only reason that the police arrived was because they saw boxes being carried from the shop in the dead of night, a fact that corroborates Matsheletja’s version. Insofar as the arbitrator referred the employee’s version that the police were sent to them by an unknown person in a black car, the applicant submits that there is no evidence to conclude that it is either Hammed or Matsheletja who had reported the issue to the police. Finally, in relation to Janse van

Vuuren’s evidence, the applicant submits that there is no basis to conclude that he was lying when he stated that the cameras

installed in the loading bay were not working when the vehicle in question was loaded.

Applicable principles

[16] The test to be applied in review applications is clear. This court may intervene if and only if the applicant establishes that the decision to which the arbitrator came was so unreasonable that no reasonable decision-maker could come to it. In a matter such as the present, where the applicant relies on what are contended to be reviewable irregularities in the assessment of the evidence, the court must be cautious to ensure that the line between an appeal and a review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC)), the Labour Appeal Court noted that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process related irregularity sufficient to set aside the award. The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgment). Specifically, the questions for a review court to ask are whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that he or she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with substantial merits of the dispute and whether the decision is one that another decision maker could reasonably have arrived at based on the evidence (see paragraph 20). In short, when an arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21). As the courts have noted, the review test sets a high threshold, one that will not often be met. (On the policy of permitting the right of review as opposed to a broader right of appeal, see Booi v Amathole District Municipality & others (2022) 43 ILJ 91 (CC) at [50]).

[17] The primary task of an arbitrator confronted by a material factual dispute is to determine the underlying probabilities. The court must deal with mutually destructive versions by weighing the evidence tendered by the parties and applying the probability test and if necessary, to take into account the credibility of the witnesses. It was thus incumbent on the applicant at the arbitration hearing bearing the onus as it does, to satisfy the arbitrator that its version is true and therefore acceptable, and that the vision advanced by the respondents was false or mistaken and thus fell to be rejected. The arbitrator is obliged to weigh up and consider whether probabilities fall and thus determine where the truth probably lies (see National Employers General Insurance Co v Jagers 1984 (4 SA 437 (A); Myburgh and Bosch Reviews in the Labour Courts at 262-4).

Analysis

[18] The arbitrator’s award is predicated on his rejection of Matsheletja’s evidence. Each of the grounds on which he called that evidence into question, in my view, has no foundation. First, the arbitrator appears to have expected much more in the way of photographic evidence than Matsheletja sought to necessary in the circumstances, but this observation does not impact in the slightest on Matsheletja’s credibility as a witness. He made clear why he took the photographs he did and the purpose for which he took them.

[19] I fail to appreciate what value significance further photographic evidence would have contributed. What the arbitrator fundamentally overlooks is the fact that Matsheletja pointed out the employees, all of whom were present at the arbitration hearing, and identified them as the persons that he had seen on the night in question. This evidence was not seriously called into question, and is simply not referred to by the arbitrator. To reject Matsheletja’s evidence on the basis that he could have taken more photographs than he did is simply absurd. The arbitrator makes much of what he contends to be a contradiction between the evidence of Matsheletja and Potgieter regarding the photographs that they had taken. The discrepancy that is on the record is hardly material given the fact that photographs were taken of the boxes in question and the location of the shop. He took which photograph is hardly material, and the discrepancies to which the arbitrator refers are not of the degree so as to call the credibility of either witness into question.

[20] The arbitrator appears to place much more on what he considers to be discrepancies in Hammed’s statement. The fact that the statement referred to BK Fruit and Vegetable and not VK Fruit and Vegetable is not material, nor is the reference to ‘Lingsnite Street’. Matsheletja testified that English is not his first language, nor was it the first language of Hammed, a Bangladeshi. Given that the statement was taken in English, these variances are hardly surprising. Indeed, the errors to which the arbitrator took such exception serve to establish the authenticity of the statement and the credibility of Hammed’s evidence – if the applicant wished to contrive a version, it could have done so without the errors.

[22] It was equally absurd for the arbitrator to reject Matsheletja’s evidence on the basis that there was no evidence presented as to how he persuaded Hammed to open the door for him, given that it was midnight. Whether the doors opened or closed was not an issue of any significance in the arbitration hearing, and it is far more probable that given Matsheletja’s version that he had observed the employees carrying boxes into the shop and then leaving in the truck, that the doors opened. In the present instance, it is clear that the probabilities favour the applicant’s version, and that the

basis on which the arbitrator rejected the evidence of Matsheletja has no foundation.

[23] Fundamentally, what the arbitrator simply failed to consider that it was inherently improbable that Mashetletja, who was not employed by the applicant, would contrive a false version of events that he conveyed to his employer in circumstances where Potgieter, who is employed by the applicant, and was called to Volksrust by the applicant’s management in the early hours of the morning, would contrive exactly the same version to the effect that boxes of Protex soap had been offloaded from the employee’s truck and sold to Hammed, a third party, who similarly would contrive essentially the same version.

[24] The inherent improbability of three fabricated versions being constructed in these circumstances aside, viewing the evidence as a whole, the probabilities support the applicant’s version in every respect. There is VK Fruit and Veg shop in Volksrust precisely where Matsheltja said it was situated. It was not in dispute that Matsheletja spoke to Hammed, whose statement (which the arbitrator accepted into evidence) directly implicated the employees. It is also significant that Matsheletja’s version that the employees offloaded the boxes from the side of the truck and not the rear door was challenged in cross-examination on the basis that the employees would testify that this was not possible, in circumstances where no such evidence was led by or on behalf of the employees. What served before the arbitrator was evidence that a particular truck, identified as a TFD truck (i.e. the applicant’s truck) bearing registration number WLC 225 GP was identified by Hammed, and also Matsheletja’s evidence that places each of the employees on the scene.

[25] In short, the arbitrator does not appear to have properly considered or weighed up the mutually destructive versions that served before him and to determine the probabilities and improbabilities of each party’s version. In the absence of any proper analysis and evaluation, the arbitrator simply sought to pick holes in Matsheletja’s evidence by raising immaterial issues and rejecting his evidence on that basis. On any reading of the record, the applicant’s version was inherently more probable than that proffered by the employees whose version was no more than that they parked their truck for the night in Volksrust, and were woken by the police who after inspecting the truck was satisfied with what they had seen. The arbitrator’s assessment of the evidence before him indicates a failure properly to apply his mind to that evidence, with the result that the conclusion to which he came falls outside of a band of decisions to which a reasonable decision-maker could come on the available material. In the circumstances, the application to review and set aside the award stands to be upheld.

[26] Finally, there is no reason to remit the matter to the bargaining council for rehearing. The record is sufficiently complete for the court to step into the shoes of any arbitrator and of particular significance is the further delay that any rehearing would occasion. The employees were dismissed in June 2014, almost 8 years ago. The remedy of substitution would be more consistent with the statutory purpose of expeditious dispute resolution. I intend therefore to substitute the arbitrator’s award with a ruling to the effect that the referral be dismissed.

I make the following order:

1. the arbitration award issued by the first respondent under case number GPRFBC 30901 on 17 September 2015 is reviewed and set aside.

2. The award is substituted by the following:

‘The applicants’ referral is dismissed’.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES

For the applicant: Mr R Orton, instructed by Snyman Attorneys

For the third to fifth respondents: Union official