Supersteel Merchants (Pty) Ltd v Roodt and Others (JR2140/21) [2024] ZALCJHB 205 (15 May 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2140/21

In the matter between:

SUPERSTEEL MERCHANTS (PTY) LTD Applicant

and

MONICA ROODT N.O.

First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Second Respondent

SEAN JASON SMIT Third Respondent

Heard: 9 May 2024

Delivered: 15 May 2024

Summary: Application to review and set aside arbitration award. Outcome was one any reasonable decision maker could have arrived at.

JUDGMENT

DANIELS J

Introduction

[1] The applicant brought an application to review and set aside an arbitration award issued, under case reference GAEK5610-21, by the second respondent. The third respondent opposed the review.

[2] For ease of reference, the applicant will be referred to as “the employer”. The first respondent will be referred to as “the commissioner” or “the arbitrator”.

Material facts

[3] Mr Sean Jason Smit (hereafter referred to as “Jason” - his brother also features) was employed by the applicant, until his dismissal.

[4] Jason’s brother, namely Mr Deandré Smit (“Deandré”) worked for a sister company of the applicant, Africa Trading, located on the same premises as the applicant.

[5] The applicant is managed by Ms Sonja Schroeder; while Africa Trading is managed by Mr Norman Schroeder. The relationship between these two companies, or their respective managers, was unclear.

[6] On 5 February 2021, Deandré, while driving a truck owned Africa Trading collided with, and damaged, the vehicle of a fellow employee, Mr Elmar Van Niekerk (“Elmar”).

[7] Elmar issued summons against Deandré in the Magistrate’s Court, for damages arising from the accident.

[8] In the summons, Elmar alleged that Deandré drove recklessly which caused the accident and that, because Deandré was not driving the truck in the course and scope of his duties, vicarious liability did not arise. Accordingly, Elmar alleged, Deandré was personally liable for the damages resulting from the accident.

[9] Deandré decided to collect statements to support his own version – that he was not driving recklessly and he was driving the truck in the course and scope of his duties. Jason decided to assist Deandré by making a statement and by soliciting similar statements from others.

[10] Jason was summoned to a disciplinary hearing where he faced the following charges:

“Charge 1: Dishonesty or attempted dishonesty, forgery or giving false of misleading statements to anybody.

Charge 2: Misuse of position to promote personal interest.

It comes with great concern that Supersteel Merchant management and staff feel that you misused your position in our company to gather information that can enrich your brother Deandre Lee Smit regarding his incident with Elmar Van Niekerk (sic) car and the truck of the company, due to you working in our office and having access to our staff and convincing them to assist him with his case.

Charge 3: Contravention of any provision of regulation contained in any applicable legislation, internal policies, procedures and practices.

Contravention of internal policy and procedure. Revealing confidential information: Without obtaining the prior approval of the company reveals confidential information. Sean Jason Smit has gathered or obtained confidential information from the company staff me (sic) members. Jason Smit you are also under contract and also contravened in the act, by signing a sworn statement in defense of Deandré Smit which you were not allowed to discuss company matters with him, and disclose any information from the company to Deandré Smit, that meaning confidential information was revealed without prior approval from management.

Charge 4 : Intimidation / Inciting

4.1: Directly or indirectly influencing others to engage in disorderly conduct.

Jason Smit went in person directly to staff and discussed private and confidential information about Deandré Smit case, and the case of the company. Untrue stories were told, and the information given was false, and tried on a few occasions to convince the staff, even they told Jason they did not want to be a part of the story, we feel you have still had part in intimidating them to come home with you and your brother to make statements at your home.”

[11] Following a disciplinary hearing, Jason was found guilty of all charges and dismissed. He referred a dispute to the CCMA, which was arbitrated before the first respondent. In the arbitration award, the commissioner found that his dismissal was substantively unfair. That award forms the basis of the review application presently before this court.

Evidence presented at arbitration

[12] The employer called two witnesses, both of whom were implicated in the alleged misconduct and neither of whom claimed to represent management or the employer itself. The employer called Messrs Thabo Khasu and Mr Jaco Kruger. The third respondent testified on his own behalf.

Mr Thabo Khasu (“Khasu”)

12.1 From time to time, after work, he travels home with Deandré and Jason. On one occasion, while being given a lift home, Deandré asked him for a favour. Deandré told Khasu that he would inform him of the details later.

12.2 During the following week, Jason asked Khasu whether he would like a lift home after work. Khasu accepted the offer. During the trip Deandré described his difficulties with Elmar and solicited his help. Khasu agreed to assist and was driven to the Smit family home where he met with Deandré. During this meeting, Jason was in the kitchen.

12.3 As a result of the meeting with Deandré, Khasu deposed to an affidavit on 31 May 2021 (hereafter “the first affidavit”) stating:

“Deandre was given permission to drive the truck before he was dismissed, and after the incident he was still driving the truck. He was doing it for months before the incident.”

12.4 The employer gave Khasu a final written warning for deposing to the first affidavit.

12.5 Thereafter, on 14 June 2021, Khasu signed a second affidavit stating that the first affidavit was not made voluntarily and he was misled. Khasu stated that he was manipulated into signing the first affidavit because he was given an assurance that no disciplinary action would be taken against him for signing it (this was incorrect because he was given a final written warning).[1] The second affidavit makes no mention of Jason, and it does not state that the first affidavit was factually incorrect insofar as it related to the accident.

12.6 Khasu testified that the contents of his first affidavit was accurate.[2] He testified that he was not intimidated by Jason to sign the first affidavit. He further testified that Jason was not present when Deandré asked him to sign the first affidavit.

12.7 The third respondent contends that the second affidavit (included in the employer’s bundle of documents) was not properly admitted into evidence because the employer’s bundle was only handed to the parties, and the commissioner, after Khasu had completed his testimony.

12.8 Despite this, the second affidavit was included in the arbitration record by the applicant.

Mr Jaco Kruger (“Kruger”)

12.9 Kruger testified that, one morning, at work, while having tea with Jason and another employee (“Ian Kruger”); Jason asked him if he would be willing to sign an affidavit to assist Deandré. Jason did not specify the nature or content of the affidavit. However, when Jason attempted to assure Kruger that he would not be disciplined for making the affidavit, Kruger decided not to assist. Kruger conceded that Jason did not intimidate or pressure him into signing any affidavit.

12.10 After the approach by Jason, Kruger decided, of his own accord, to go to the South African Police Services to make an affidavit relating to the accident. This affidavit formed part of the documents before the commissioner, but no reference was made to its content during the arbitration, or in the award.

12.11 The applicant does not contend that the commissioner erred by failing to take Kruger’s affidavit into consideration.

Sean Jason Smit (“Jason”)

[13] Jason denied all the charges against him. Furthermore, Jason testified, the accident did not involve property of the applicant, his employer.

[14] Jason testified that, on 28 May 2021, he deposed to an affidavit in which he stated: “I am aware and witnessed Deandre driving the truck. Under my knowledge, he had the authority to do so. I witnessed him driving the truck after the incident happened as well.” Jason testified that he had made a statement to help his brother but that doesn’t mean the contents were untruthful. He testified that the contents of his affidavit was true.

[15] In addition, Jason testified that the employer had applied discipline inconsistently because, unlike Khasu, he was not given an opportunity to retract his affidavit to save his job.[3] Furthermore, he testified, it was inconsistent for the employer to dismiss him, while only issuing a final written warning to Khasu, for the same misconduct.

[16] Under cross examination, the applicant’s representative did not put it to Jason that his affidavit, or the first affidavit of Khasu, was either untruthful or inaccurate. Nor was it put to him that he intimidated anyone.

[17] The focus of the cross examination was that Jason revealed confidential information by deposing to an affidavit. Jason, of course, disputed that his affidavit was confidential. He stated that his affidavit related to a private matter between Elmar and Deandre. It does not hold any financial consequences for the applicant, his employer.

Legal principles and analysis

[18] In Sidumo and another v Rustenburg Platinum Mines Ltd and others[4] the Constitutional Court held that the appropriate test to be applied in relation to reviews of arbitration awards issued by the CCMA or Bargaining Council is whether the outcome is one which no reasonable commissioner could reach on the material before him or her. The so-called Sidumo test has subsequently been refined.

[19] In Herholdt v Nedbank Ltd (COSATU as Amicus Curiae)[5] the Supreme Court of Appeal (“SCA”) considered the test on review. The SCA held that the reasonableness test does not do away with the procedural grounds for review in section 145(2)(a) of the LRA. However, such procedural defects must indicate that the arbitrator misconceived the nature of the enquiry or arrived at an unreasonable result. If the arbitrator misconceived the nature of the enquiry this is adequate to review and set aside the award.

[20] In Goldfields Mining SA (Pty) Ltd v CCMA and others[6] the Labour Appeal Court (“LAC”) reminded us that the concept of reasonableness embraces a range of outcomes, all of which are reasonable. Accordingly, the test is whether the outcome is one that no reasonable decisionmaker could arrive at, on all the material before him or her. The award should not be evaluated on a fragmented and piecemeal basis, but on the totality of the evidence. In addition, said the LAC, a failure to follow a fair and proper process may lead to an unreasonable result.

[21] In Head of the Department of Education v Mofokeng and others[7] the LAC clarified that if an arbitrator failed to apply his or her mind to the material issues, this would ordinarily suggest that the outcome is unreasonable or that the arbitrator misconceived the nature of the enquiry. However, an error of law or fact does not, by itself, render the outcome unreasonable. What matters is the materiality of the error. If the error has a distorting effect on the outcome this would signify that the error was material, and the outcome

unreasonable. The mere fact that the arbitrator’s reasoning was flawed is insufficient, the court must consider whether the result is unreasonable in light of all the evidence.

Analysis of the grounds of review

[22] The applicant in this matter argues that the award is so unreasonable that no reasonable decisionmaker could reach such decision on all the material before her.

[23] The applicant submits that the commissioner ignored material evidence before her, namely the second affidavit of Khasu, which had a distorting effect on the outcome.

[24] In addition, the applicant contends that the commissioner found that the employer had acted inconsistently when this could not be justified on the evidence before her.

Alleged material error of fact

[25] At arbitration, Jason represented himself and the employer was represented by its Human Resources Manager.

[26] The employer alleged that the commissioner committed a material error by failing to take into consideration the second affidavit deposed to by Khasu.[8] The employer did not explain how this had a distorting effect on the outcome. The second affidavit does not state that the contents of the first affidavit were incorrect.

[27] The third respondent contended that the commissioner cannot be criticised for “ignoring” the second affidavit when it was not tendered into evidence. The transcript reveals that:

27.1 When the proceedings commenced, the commissioner asked the employer’s representative whether Jason had a copy of the employer’s bundle. The employer’s representative replied that Jason had a copy of the documents used at the disciplinary hearing but he did not have a copy of the bundle the employer prepared for the arbitration.

27.2 The commissioner advised the employer’s representative to make three copies of the employer’s bundle (one for the witness, one for the commissioner and one for the applicant).[9] Kruger leaves the hearing to make copies of the employer’s bundle.

27.3 The employer’s representative advised the commissioner that she is ready to call her first witness, Khasu. The commissioner asks the employer’s representative whether she would like to wait for the documents bundle to be copied, but the offer was firmly rejected.[10]

27.4 When Khasu’s evidence was completed, the commissioner enquired about the employer’s second witness. The employer’s

representative stated that the second witness was not available because he had left to copy documents and had not returned. The

hearing adjourned until the employer’s second witness reappeared (with copies of the employer’s documents bundle).[11]

27.5 Khasu was not referred to the contents of his second affidavit during his evidence, or his cross examination.[12] When Jason attempted to cross-examine him about his second affidavit, the commissioner enquired which two affidavits were being compared (because there was only one before her).[13] The hearing proceeded without any further reference to the second affidavit.

27.6 Khasu testified that his first affidavit was correct.[14]

Alleged inconsistent application of discipline

[28] At the start of the proceedings, Jason confirmed to the commissioner[15] and the respondent that he was challenging the appropriateness of the sanction on the basis that there was no consistency in discipline.

The employer called two witnesses, both of whom were implicated in the alleged misconduct, neither of whom purported to represent the employer. Neither of the employer’s witnesses testified that the employer had applied discipline consistently.

[29] During his evidence, Jason testified that discipline was not consistently applied because, unlike Khasu, he was not allowed to withdraw his affidavit. Furthermore, Jason testified, he was dismissed while Khasu was given a final written warning, for the same or similar misconduct.

[30] Although, during argument, the employer’s representative submitted that discipline was fairly and consistently applied, it presented no evidence to distinguish the alleged misconduct of Khasu from that of the applicant.

[31] The commissioner considered the abovementioned facts, and concluded, in paragraph 27 of the award, that the employer had not discharged the onus of proving that discipline was consistently applied.

[32] In SA Police Service v Safety and Security Sectoral Bargaining Council and others[16] the court stated that once the employee has pertinently put the issue of consistent treatment in issue, the employer has a duty to rebut such allegations. The court noted that the onus of rebutting the allegation of inconsistency rests squarely on the employer.

[33] In this case, the employee pertinently alleged that the employer inconsistently applied discipline. Despite this, the employer called no witnesses to discharge the onus. In the circumstances, the finding that the employer had not proven that it applied discipline consistently is hardly unreasonable.

Alleged dishonesty and intimidation

[34] Kruger did not testify about the contents of his affidavit, which he made independently. He did not testify that Jason had asked him to be dishonest in an affidavit. Both employer’s witnesses testified that they had not been intimidated. Given that the principal charge against Jason related to dishonesty, it was strange indeed that the employer presented no evidence that the statements, or affidavits, contained false information. Nor did it allege that Jason solicited false statements.

Alleged unreasonable outcome

[35] In the absence of the defects alleged by the employer, the award is reasonable and there is no permissible basis to find that the award is one that no reasonable decision maker could arrive at. The award is reasoned and consistent with the evidence, properly tendered, and considered in its totality.

Costs

[36] In this court, it is trite that costs do not follow the result. Nevertheless costs may be awarded taking into consideration all the relevant factors implicated in the concepts of “law and fairness”. In addition, in truly exceptional circumstances,

improper conduct of the parties may still be punished by punitive cost orders.

[37] The third respondent contended that the applicant should bear the costs of the application on a punitive scale because it has represented to the court that key evidence, namely the second affidavit of Khasu, was presented at arbitration when this was plainly false. I agree.

[38] The transcript clearly illustrated that the second affidavit of Khasu was not placed before the commissioner until after Khasu had completed his evidence. Despite this, the applicant alleged that the commissioner behaved improperly by not considering this evidence. This is entirely unacceptable.

[39] A further example of unacceptable conduct occurred where the applicant stated, in para. 17 of its heads of argument, that Kruger confirmed in his affidavit that the third respondent intimidated Messrs. Ian Kruger and Brian Khasu. This affidavit may have been part of the employer’s bundle of documents, but it was not referred to in any of the evidence before the commissioner. Nor was the contents of such affidavit put to the third respondent during cross examination.

Conclusion

[40] In light of what is set out above, the application is dismissed with costs on an attorney and client scale.

RN Daniels

Judge of the Labour Court of South Africa

Appearances:

For the Applicant :

Instructed by:

For the First Respondent:

[1] Transcript p34 lines 17 – 25: Mr Khasu: “Okay, the second affidavit I did I feel, because I feel I did, this thing, because I wasn’t told the whole story, I wasn’t told everything what’s going to happen, my job is going to be in danger, I might lose my job, I wasn’t given information about that, that’s why I changed my statement because I didn’t know the whole story, about the story.”. Transcript p35 lines 12 - 22 Mr Khasu: “I changed my statement because I was going to lose my job and then Deandre gain something and then I will be sitting at home losing my job and I wasn’t given the whole story to choose for myself if I want to risk my job or not.” 2

[1] Transcript p34 lines 17 – 25:

Mr Khasu: “Okay, the second affidavit I did I feel, because I feel I did, this thing, because I wasn’t told the whole story, I wasn’t told everything what’s going to happen, my job is going to be in danger, I might lose my job, I wasn’t given information about that, that’s why I changed my statement because I didn’t know the whole story, about the story.”.

Transcript p35 lines 12 - 22

Mr Khasu: “I changed my statement because I was going to lose my job and then Deandre gain something and then I will be sitting at home losing my job and I wasn’t given the whole story to choose for myself if I want to risk my job or not.” 2

[2] Transcript at p28` line 25 – p29 line 6: Mr Khasu: “Deandre was driving the truck? Mr Smit: “Yes” Mr Khasu: “Yes, Deandre was driving the truck.” Mr Smit: “Okay so its true. I mean do you think its confidential information?

[2] Transcript at p28` line 25 – p29 line 6:

Mr Khasu: “Deandre was driving the truck?

Mr Smit: “Yes”

Mr Khasu: “Yes, Deandre was driving the truck.”

Mr Smit: “Okay so its true. I mean do you think its confidential information?

[3] Transcript at p60 line 11- 16

[4] 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC)

[5] (2013) 34 ILJ 2795 (SCA)

[6] (2014) 35 ILJ 943

[7] [2015] 1 BLLR 50 (LAC)

[8] After the employer issued a final written warning to Khasu for deposing to his first affidavit, Khasu deposed to a second affidavit. In the second affidavit, Khasu stated that he had been misled into deposing to the first affidavit because he did not realise that he would place his employment in jeopardy.

[9] Transcript p15 lines 12 – 16; p 15 lines 23 – 25; p16 lines 4 9

[10] Transcript p13 line 16 to p16 line 9; transcript p21 line 22 – p22 line 6

[11] Transcript p36 lines 2 – 12

[12] Transcript p22 line 11 – p 38

[13] Transcript p34 lines 4 – 14

[14] Transcript p31 lines 1 – 5

[15] Transcript p11 lines 13 - 21

[16] (2011) 32 ILJ 715 (LC) at para 10