Tlowana v South African Road Passenger Bargaining Council and Others (JR 2717/2019) [2021] ZALCJHB 213 (26 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2717/2019

In the matter between:

GRAHAM LOUIS TLOWANA Applicant

and

SOUTH AFRICAN ROAD PASSENGER

BARGAINING COUNCIL First

Respondent

SIBONGISENI SITHOLE N.O. Second

Respondent

GREYHOUND COACHES Third

Respondent

Considered: 01 July 2021

Delivered: (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties’ representatives by email. The date for hand-down is deemed to be on 26 July 2021)

JUDGMENT

CASSIM, AJ

[1] The applicant was dismissed on 20 March 2019 by the third respondent, Greyhound Coaches (Greyhound). He was employed in the capacity of a coach operator. The applicant challenged his dismissal in the structures of the first respondent, the South African Road Passenger Bargaining Council. The second respondent, the commissioner who made the award on 25 July 2019, concluded that the dismissal of the applicant and his co­ employee, Gerald Khubeka (Khubeka) by Greyhound was substantially and procedurally fair.

[2] In this review application, the applicant attacks the reasoning and findings of the commissioner and seeks to have same reviewed set aside and remitted to another commissioner for a re-hearing. Prior to dealing with the merits of the review application, I must point out that the review application is substantially late and there are no proper reasons to justify condonation.

[3] The applicant delivered the record of the arbitration proceedings more than four months after the record was filed by the first respondent. No consent for an extension was sought by the applicant nor was Greyhound engaged on this aspect. Any delay has potential prejudicial effects on the other party to the litigation. The failure to request an extension is by, itself, an indication that the erstwhile employee does not appreciate the gravity and cost implications of proceedings of this nature. I, nevertheless, consider it appropriate to deal with the merits of the matter, although there is nothing before me to warrant the granting of condonation.

The merits

[4] On 6 February 2019, the applicant, together with Khubeka, were the co­ drivers for the Greyhound trip from Johannesburg to Mossel Bay. In Welkom, the bus was stopped for inspection by four officials of Greyhound. There were nine passengers without tickets. The applicant argues that Khubeka accepted full responsibility for this mishap and that he should be absolved. At the hearing before the commissioner, it was common cause that:

4.1. there were nine passengers on the bus without valid tickets;

4.2. no standby tickets were issued to the passengers;

4.3. paperwork relating to the trip was not done.

[5] On the common cause facts, Khubeka failed to comply with his material obligations. He permitted passengers to travel without valid tickets. The reasonable inference is that the passengers paid some monies (probably less than the full fare) to Khubeka. The applicant and Khubeka were charged with misconduct in that they were carrying unauthorised passengers (i.e. passengers without valid tickets) on 6 February 2019 on the service from Johannesburg to Mossel Bay via Welkom and Bloemfontein. The employer's case was that the nine passengers confirmed that they boarded the coach at Park Station in Johannesburg.

[6] The commissioner concluded that the applicant had direct knowledge that there were nine passengers on the bus without tickets. This, because on the applicant's own version, he was informed by Khubeka in Potchefstroom about the nine passengers and he advised Khubeka to call the tracking company at Bloemfontein. Clearly the commissioner was not satisfied with this explanation. The applicant, in order to protect his employer, could have made his standby book available to issue tickets, notified the employer or take other measures to deal with this issue. I would have expected him to have immediately brought this to the attention of the inspectorate when the inspection took place in Welkom. His failure to do so is telling.

[7] I cannot fault the commissioner's findings that the applicant had knowledge of passengers on his bus without valid tickets. This finding is reasonable and rational and the conduct of the applicant and Khubeka is serious misconduct. A bus company in which its drivers facilitate passengers not paying to the company cannot survive and renders the business economically in perilous conditions. Both Khubeka and the applicant acted dishonestly and in direct opposition to their calling and their employer's interest.

[8] There is no substance in this review application. The applicant conducted himself badly and undermined his employer's interest. The attack in the heads of argument on the process is similarly meritless. The parties sensibly agreed that the commissioner determines the dispute by reference to the documentation, common cause facts and argument.

[9] The review application falls to be dismissed.

Order

1. The review application is dismissed.

2. There is no order as to costs.

N. Cassim

Acting Judge of the Labour Court of South Africa

Representatives:

For the applicant: Mr Graham Louis Tlowana

Instructed by: In

Person

For the respondent: Ms H Geldmacher

Instructed by: Hana

Geldmacher Attorneys