Joint Affirmative Management Forum obo Nhlumayo v Commission for Conciliation, Mediation and Arbitration and Others (D1850/17) [2021] ZALCD 66 (17 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

Case no: D1850/17

Not Reportable

In the matter between:

Joint Affirmative Management Forum

OBO Charles Nhlumayo Applicant

and

Commission for Conciliation,

Mediation and Arbitration First

Respondent

Eugene Van Zuydam N.O Second

Respondent

Pick ‘n Pay Retailers (Pty) Ltd Third

Respondent

Heard: 07 July 2021

Delivered: 17 August 2021

JUDGMENT

FUTCHER AJ

1. The Applicant in this matter is the Joint Affirmative Management Forum (“JAMAFO”), a trade union registered as such in terms of the Labour Relations Act (“LRA”), acting on behalf of Mr. Charles Nhlumayo.

2. The First Respondent is the Commission for Conciliation, Mediation and Arbitration (“CCMA”).

3. The Second Respondent is Eugene Van Zuydam, in his capacity as Commissioner, appointed by the CCMA.

4. The Third Respondent is Pick ‘n Pay Retailers (Pty) Ltd, a company duly incorporated under the laws of the Republic of South Africa.

5. This is an application brought by the Applicant for the Review of the determination by the Second Respondent under the auspices of the First Respondent.

6. The Review is opposed by the Third Respondent.

The Condonation Application

7. The Application for Review is brought in terms of Section 145 of the LRA. Accordingly, the Review is required to be brought within 6 (six) weeks of the date of the Applicant becoming aware of the Arbitration Award (“Award”).

8. Its common cause that the Review was instituted 2 (two) weeks outside of the time period prescribed in the LRA. The Applicant, although only subsequent to the filing of the Review Application itself, brought an Application for Condonation of the late filing thereof.

9. The Application for Condonation was opposed by the Third Respondent. Having considered the affidavits filed in support and opposition of the Condonation, and having heard the parties, I determined that the length of delay was relatively insignificant and that the interests of justice supported the determination of the Review on the merits. Condonation for the late filing of the Review is therefore granted with no order as to costs. I turn now to deal with the merits of the Review.

10. The Applicant was employed as a Bakery Manager by the Third Respondent and had been so employed since November 1999.

11. The Applicant’s services were terminated by the Third Respondent on 24 April 2017, following a disciplinary inquiry into his alleged misconduct.

12. The Applicant appealed his dismissal, which appeal was refused, and the dismissal upheld.

13. The Applicant referred an alleged unfair dismissal dispute to the First Respondent.

14. The matter was heard by the Second Respondent on 18 September 2017 and 17 October 2017 respectively.

15. The Second Respondent issued an Award dated 23 October 2017, where he found, inter alia, that the dismissal of the Applicant was substantively and procedurally fair and made no order as to costs.

16. The essence of the Applicant’s challenge to the determination by the Second Respondent of this matter related to its contention that the Second Respondent had not applied his mind properly to the evidence placed before him in determining that the Applicant was indeed guilty of the misconduct alleged and that dismissal was the appropriate sanction.

17. The facts of the matter are summarised as follows:

a) During the festive season of December 2016 and January 2017, the Applicant was requested, as Bakery Manager, to transport night shift bakery employees to work in the early hours of the morning as there was no transport available to them at this time, and due to the demand placed on the Third Respondent’s activities, it was necessary for the bakery operations to commence earlier than usual.

b) The Applicant had been requested to do so similarly in previous years and had obliged.

c) It was agreed that the Applicant would be compensated based on an agreed rate per kilometre for the travel incurred.

d) The Applicant claimed travel of 86 (eighty-six) kilometres per trip for 18 (eighteen) different trips occasioned in the said period.

e) The Third Respondent disputed the distances claimed by the Applicant and proceeded to conduct an investigation into what it believed was the fair and reasonable mileage undertaken in facilitating the transport of certain bakery staff to the Third Respondent’s business premises in Shelly Beach, during the early hours of the mornings concerned.

f) In so doing, it reached a conclusion that the Applicant had acted dishonestly, and in addition, had failed to adhere to the company’s

policies and procedures. In reaching this conclusion, the Third Respondent determined that dismissal was the appropriate remedy.

The Applicant’s grounds of Review

18. The Applicant contended that the mileage was accurately recorded per the odometer in his vehicle and sought initially to explain the difference between the mileage which he claimed and that contended to be justifiable, as being the result of the excursions which he was required to undertake in collecting the various staff members from their points of collection on the way to the Third Respondent’s business operation in Shelly Beach.

19. The Applicant claimed that he had not been allowed to participate in the exercise undertaken by the Third Respondent to determine this mileage.

20. The Applicant further claimed that the Second Respondent had not applied his mind correctly to the facts, which were led in his evidence in chief, explaining that the mileage claimed was indeed on the basis of a return trip, and that he had returned the staff members back to their homes following the conclusion of their shift as there was no transport available at that time in the morning, and that he was, in essence, assisting the Third Respondent in complying with its obligations to provide transport to its staff in terms of the Basic Conditions of Employment Act (“BCEA”).

21. The Applicant contended that, in such circumstances, his version was probable and ought to have been accepted by the Second Respondent,

who, on the Applicant’s version, committed a gross irregularity in failing to apply his mind to such salient facts in reaching the conclusion that the dismissal of the Applicant was indeed fair.

The Third Respondent’s Contentions

22. The Third Respondent referred, in particular, to the evidence led before the Second Respondent of the Assistant Store Manager, Mr. Rishi Gajadhar (“Gajadhar”) wherein Gajadhar specifically contended the following:

a) That it was the policy of the Third Respondent to reimburse for the transportation costs incurred in bringing staff to work only, and not in regard to the return of such staff to their homes.

b) In particular that, it was specifically not necessary to compensate for the return of staff to their homes as transport was provided by the company for staff after 7am, and that to the extent that the Applicant had in fact taken such staff members in the morning, he did so on his own cognisance and was not entitled to claim compensation for such travel. This version was not challenged under cross examination, other than what was put to Gajadhar by the Applicant’s representative that, the Applicant was in fact merely complying with the Third Respondent’s obligations as contained in the BCEA referred to above.

c) The Third Respondent further submitted that the claim forms relied upon by the Applicant were telling in that they described a single trip from the Employees’ respective homes to the Shelly Beach store, the reason given therefor being the bakery and night shift duties. The Third Respondent submitted further that such claims were clearly made in regard to a single trip. The Third Respondent also drew the Court’s attention to the fact that the Applicant’s contention, that what had been claimed related to a return trip, was a version that had only been raised by the Applicant during his evidence in chief, and after hearing the evidence of the Third Respondent during the arbitration proceedings.

d) The Third Respondent pointed out correctly in its submissions to this Court that such version had not been put properly to the witnesses

for the Third Respondent by the Applicant in order for them to deal with this issue, but in any event, the question was dealt with by the Second Respondent in his finding that the Applicant ought reasonably to have known that he was not entitled to claim for such return trips in circumstances where the Third Respondent provided transport for those staff coming off the early morning shift to return to their homes.

e) In regard to the question of sanction, the Third Respondent submitted that the sanction was appropriate and referred this Court to the common cause fact that the Applicant, during the disciplinary proceedings, had absented himself and had not placed any evidence in mitigation before the Chairperson of the hearing.

Analysis of the submissions made by the Parties

23. On the Applicant’s own version, as is evidenced in the record of the arbitration proceedings, he indicated that he had claimed the kilometres as they had appeared in his motor vehicle after he had offloaded the staff who had come to work on the mornings in question. This in itself implied a single trip.

24. This was similarly borne out by the claim forms to which this Court was referred, completed by the Applicant in support of the reimbursive

compensatory claims. The evidence of Gajadhar on the record was clear, unequivocal and not challenged with any merit in that, the

company’s policy was to pay only for the travel incurred in bringing the nightshift staff to work on an earlier than ordinary

basis, and that it was not necessary nor the company’s policy to compensate for their return home, where transport had, in the ordinary course, been provided by the Third Respondent.

Analysis of the argument

25. The Second Respondent’s finding that the Applicant must have known that he could not claim for a return trip is, in my view, the reasonable and most probable finding which could have been arrived at, having regard to the evidence heard by the Second Respondent,

both from the Applicant, but in particular, from Gajadhar in his evidence in chief and under cross examination.

26. The Second Respondent’s further conclusion that the Applicant, at the very least, and on his own version as given in his evidence in chief, had claimed for a return trip, in circumstances where he was not permitted to do so, and therefore acted dishonestly, was similarly a reasonable finding based on the evidence placed before the Second Respondent during the arbitration proceedings.

27. The Second Respondent further considered the uncontested evidence led during the arbitration proceedings, as evidenced from the record, that the Third Respondent adopted a zero-tolerance approach to dishonesty and that in such circumstances dismissal was appropriate.

28. The Third Respondent, in its submissions, referred this Court to the decision of Toyota SA Motus (Pty) Ltd v Radebe and Others [2000] 3 BLLR 243 (LAC) wherein the Labour Appeal Court stated as follows:

‘….Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty…’

29. I am bound by the reasoning of the Labour Appeal Court in this matter with which I concur and also in that of G4S Secure Solutions SA (Pty) Ltd v Ruggiero N.O. and others (2017) 38 ILJ 881 (LAC), wherein the Court stated as follows:

‘The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is “a sensible operational response to risk management”.’

30. In such circumstances, the length of the employee’s service, in the view of this Court, constitutes an aggravating factor in that it ought to have been abundantly clear to the Applicant that the claims which he made would not be sustainable, given the facts surrounding his claims for reimburse travel.

31. The test to be applied by this Court in determining Reviews is that set out by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC) and followed subsequently in the decisions of Herholdt v Nedbank Ltd (Congress of South Africa Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) and Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & Others [2007] ZALC 66; (2014) 1 BLLR 20 (LAC).

32. This Court is bound to determine whether the resulting decision of the Second Respondent is one which is unreasonable and one that a reasonable Arbitrator could not reach on all the material that was before the Arbitrator in the matter in casu. In considering the decision reached by the Second Respondent in this matter, I take note of the submissions of the Third Respondent that, in arriving at his decision, the Second Respondent:

a) allowed both parties a full opportunity to present their respective cases;

b) correctly identified the issues before him, which he was required to determine;

c) understood the nature of the dispute, which he was required to arbitrate;

d) dealt with the substantial merits of the dispute, having heard evidence from both parties on the issues at stake; and

e) in so doing, arrived at a decision which another decision maker could and would have arrived at on the evidence presented before him.

33. I note that this Court is bound to consider the conduct of the Second Respondent in the strict light of the evidence which was placed

before him during the arbitration proceedings. This Court is not inclined to consider those submissions made by either of the parties

in their application papers, which factually, were not before the Second Respondent hearing the arbitration and which were not

available to the Second Respondent in his determination of the matter and his conclusion that dismissal was both substantively and procedurally fair.

34. In such circumstances, the only conclusion which can be reached by this Court in regard to the Review proceedings brought before it is that the determination by the Second Respondent was one that another reasonable Commissioner in the same circumstances, could have made.

Order:

[35] In the circumstances, I make the following order:

I. The review is dismissed.

II. No order is made as to costs.

Mark Futcher

Acting Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT: Mr. T. Moqechane (Union Official)

FIRST RESPONDENT: No appearance

SECOND RESPONDENT: No appearance

THIRD RESPONDENT: Ms. K Allen

Instructed by: T

Giyapersad Incorporated