Mashalaba v South African Road Passenger Bargaining Council and Others (JR3052/11) [2013] ZALCJHB 235 (13 August 2013)

Not Reportable

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

JUDGMENT

Case no: JR 3052/11

In the matter between:

KENNETH MASHALABA Applicant and SOUTH AFRICAN ROAD PASSENGER BARGAINING COUNCIL First Respondent COMMISSIONER MOHINI SOMAN N.O. Second Respondent PUTCO LTD. Third Respondent

Heard: 8 August 2013

Delivered: 13 August 2013

Summary: (review – dismissal dispute – failure to issue a ticket to a passenger – previous warnings challenged but not overturned – application dismissed).

LAGRANGE, J

Introduction

The applicant in this matter was charged and dismissed for failing to issue a ticket to a bus passenger after the full fare was

collected and for refusing to issue a replacement ticket. He was on a final written warning for the same offence which he had committed months before this event. The arbitrator upheld the fairness of his dismissal. He now seeks to have that award set aside.

The arbitrator's reasoning

The kernel of the arbitrator's reasoning is set out in the following paragraph of his award:

“It is common cause that the applicant was the bus driver on bus 7423 on duty 1025 on 12 August 2011. It is also common cause that inspectors, including Moeti, at a zone 7,Sebokeng, inspected the bus. Moeti led evidence that he found a passenger without a ticket and the passenger informed him that he had paid but the applicant had not given him a ticket. The applicant testified that he was informed by the inspectors that one passenger was not in possession of the ticket. The applicant did not dispute Moeti’s evidence that he told Moeti that the passenger had only paid him R 8.00. It is common cause that an old lady gave Moeti a ticket, which he claimed belonged to that passenger and that this ticket was not issued from the applicant's machine. The applicant confirmed the monies were received for tickets sold to 62 passengers.

Moeti testified that he counted 63 passengers and he wrote a report slip because one passenger was unaccounted for. The applicant

did not dispute the evidence that the report showed that 62 tickets were issued. The applicant testified that he was framed by the respondent and the inspectors, including Moeti, charged him because he was unable to pay a bribe to them. However, he failed to elaborate on why the inspectors wanted a bribe and there's nothing for me to show why the respondent would want to fabricate the charges against the applicant. The applicant also insinuated that the inspectors brought the ticket onto the bus to show that the passenger was not given a ticket. However he confirmed later that he saw the old lady give this ticket to the inspector while they were on the bus. It is also common cause that there was a passenger on the bus who was not in possession of the ticket. Therefore, nothing in the evidence supports the applicant's version that Moeti deliberately counted 63 passengers in order to frame him. There's no reason not to believe Moeti’s evidence and I am satisfied that he counted 63 passengers on the bus. It is common cause that 62 tickets were sold. Therefore, the applicant failed to issue a ticket for one passenger. He did not dispute the evidence that he refused to issue a replacement ticket. The applicant was also inconsistent because he initially stated that he would use the same ticket to show that the R 10.00 had been paid but later stated that he only saw the ticket at the hearing. This is a serious offence compounded by the applicant was already on a final written warning for the same offence on 19 July 2011. This warning was not successfully appealed and is therefore still a valid warning. The sanction of dismissal is the only sanction that can be imposed as the applicant's actions go to the heart of the trust relationship. He is a repeat offender and not withstanding that he was on a final written warning, he committed the same offence within a month of receiving a final written warning. The respondent to shown that the applicant was dismissed for a fair reason."

On the question of procedural fairness the arbitrator noted that the applicant had challenged this because of the employer's alleged failure to comply with the collective agreement. However, the collective agreement was not produced at the hearing. The minutes of the internal hearing were also not challenged and showed that he was given the opportunity to make a statement and cross-examine the respondents’ witnesses. Moreover the applicant was represented at the enquiry. The arbitrator concluded that there was no evidence before him to show that a fair procedure had not been followed.

Grounds of review

The applicant's grounds of review may be summarised as follows:

4.1. The employer's witnesses were not present at the hearing on 14 November 2011.

4.2. The arbitrator was wrong that Moeti had counted passengers. It was the other inspector Mr Mashamaite who did so.

4.3. The employer never finalised the internal appeal against his final written warnings.

4.4. The internal hearing and the arbitration did not follow fair procedures, though the applicant does not specify in what respect

these proceedings fell short of the requirements of the LRA.

4.5. He had ‘strong evidence’ that the contentious ticket was not issued by his machine.

4.6. He claims that the arbitrator was biased, but does not provide reasons for this assertion in his affidavit. As mentioned below he only explained this in presenting his argument in court.

4.7. Lastly, the applicant complains that the digital record of the evidence was incomplete.

Evaluation

It appears that the first ground of criticism is that the employer did not call all the possible witnesses it could have at the

arbitration. However, it must be remembered that the arbitration hearing is a hearing de novo, and it is not uncommon for parties to limit the number of witnesses they call at that hearing. At the end of the day, the arbitrator must be satisfied on the evidence that the party bearing the onus of proof has discharged it. If that party miscalculated and called too few witnesses or led insufficient evidence, that party will suffer the consequences of its own miscalculation, but there is nothing irregular about the proceedings if it does not call all the witnesses who testified in the original proceedings. If the applicant would have liked to summons a witness who was not called to the arbitration proceedings, he or she may request a subpoena to be issued to secure their attendance.

On the second ground it appears that the parties are agreed on which inspector counted the number of passengers and the arbitrator

incorrectly stated that Moeti had counted them. However, despite this obvious error nothing turns on this. It is the evidence itself which is important and the evidence of the number of passengers on the bus was not a matter of dispute.

The applicant’s complaint that his appeal against his previous written warning had not been decided did not prevent the arbitrator from considering the warning in arriving at his decision. When the applicant referred his unfair dismissal claim he could also have referred a dispute over the fairness of the final written warning and that could have been heard by the same arbitrator as an unfair labour practice dispute. However, the arbitrator did not have the power to consider the validity or fairness of the previous final written warning as that issue was not part of the dispute that was referred to arbitration. Moreover, even when the applicant mentioned his appeal at the arbitration hearing he did not explain why the warning should be disregarded. Accordingly, the arbitrator cannot be blamed for not entering into an examination of the validity of that warning.

The applicant’s complaint about the fairness of the procedure is lacking in specific detail about the shortcomings he relies on to make this submission. When I asked him what this referred to, the applicant mentioned criticism he had of the way certain evidence was allegedly ignored. I address this complaint elsewhere though, strictly speaking, this was not an issue raised in the applicant’s founding papers.

An issue which related to the handling of the arbitration itself was the applicant’s claim that the arbitrator was biased. This was based on the fact that on the first day of the hearing it started twenty minutes late and the arbitrator had entered the room at the same time as the employer’s representative. The applicant speculated that they may have had some discussions prior to entering the venue, but he agreed he could only speculate on this. He also agreed that at the time he had accepted the arbitrator’s apology that she was late because of traffic. Neither he nor his representative raised any concern of bias at the arbitration hearing. In the circumstances it cannot be said that the applicant has advanced any convincing evidence on which a reasonable person might conclude that the arbitrator was acting in a biased fashion.

It is not a matter of dispute that the contentious ticket provided by the elderly passenger was not issued by the applicant’s

ticket machine, and the arbitrator was aware of this. The issue before the arbitrator was that there was no record of payment for one passenger’s ticket yet the passenger had paid for a ticket and the applicant refused to issue a replacement one. The issue of the ticket produced by the elderly passenger on behalf of the passenger without a ticket is something of a red herring. The applicant himself queried how such a ticket could have been issued for another route when the bus going on that route only departed at least twenty minutes after his bus had departed from the terminus. On the other hand, he said that the ticket was a valid cash transfer ticket and could have been validly used for his route without the passenger being required to pay him for another ticket. When the applicant was cross-examined, he did not dispute that a passenger had been found without a ticket issued by him, nor did he dispute that the controversial ticket had been produced not by the passenger, but by an elderly lady sitting near the front of the bus. Moreover from the transcribed portion of the arbitration hearing, it appears that the applicant did not challenge the evidence that there were 63 passengers on the bus, and had signed a document to that effect.

Another difficulty with the applicant’s account of the ticket produced by the elderly lady was that originally he had claimed he had issued the ticket, only to change his version later to suggest it could not be valid because of the time it was issued.

It is clear that the record was incomplete and no effort had been made by the applicant to reconstruct the missing portions. However, that in itself is not a ground of review. In his founding affidavit the applicant gave no indication of parts of the evidence that were missing which were crucial to his case and without which he could not establish his grounds of review. He should at least have indicated to the respondent any crucial evidence which was missing in order to try and obtain agreement on the reconstruction of those parts of the record.

In light of the analysis, I am not persuaded that the arbitrator committed any reviewable irregularities or that the arbitrator was biased. Further, the arbitrator’s findings were ones that a reasonable person could have reached on the information available.

Order

In the circumstances, the review application is dismissed and no order is made as to costs.

_______________________

R LAGRANGE, J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: In person

FIRST RESPONDENT: S Sithole of Bowman Gilfillan