---

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 261/13

In the matter between:

NGULULU BULK CARRIERS (PTY) LIMITED                                                           Applicant

and

SATAWU                                                                                                        First Respondent

S MBATHA                                                                                               Second Respondent

COMMISSIONER THOMAS NTIMBANA                                                     Third Respondent

NATIONAL BARGAINING COUNCIL FOR THE

ROAD FREIGHT INDUSTRY                                                                     Fourth Respondent

Heard:           11 July 2014

Delivered:     29 November 2016

JUDGMENT

ROBB AJ

Introduction

[1] The Applicant seeks to review and set aside an arbitration award issued by the arbitrator (the Third Respondent) on 18 January 2013 under Case No. NELRFBC 21251. The arbitrator found that the dismissal of the Second Respondent was procedurally fair but substantively unfair. The arbitrator ordered the reinstatement of the Second Respondent as well as payment of arrear wages from the date of his dismissal.

[2] The First and Second Respondents opposed the application.

Background facts

[3] The Second Respondent was employed by the Applicant on 23 March 2008 as a driver. He was dismissed on 4 June 2012 pursuant to a disciplinary inquiry. The charge that the Applicant levelled against the Second Respondent was as follows:

‘A wilful refusal to carry out a proper assignment for which the employee was employed for at Richards Bay as instructed by Jan Oosthuizen.’

[4] The incident which led to the levelling of the charge against the Second Respondent occurred on 16 May 2012. Mr Oosthuizen, an operational supervisor of the Applicant responsible, inter alia, for routine changes of drivers, instructed the Second Respondent to hand over the operation of the truck the Second Respondent was driving to a relief driver. In front of three relief drivers, the Second Respondent refused to hand over his truck, started the truck and drove off. The incident occurred at a truck stop at the Engen Garage on the N2 highway. Two hours later, the Second Respondent handed the truck over to a Mr N Dlamini, who testified at the hearing. The Second Respondent was thereafter charged on 31 May 2012 and was ultimately dismissed pursuant to a disciplinary inquiry on 4 June 2012.

[5] The Second Respondent referred a dispute to the National Bargaining Council for the Road Freight Industry, the Fourth Respondent. An arbitration was held on 24 October 2012 and 18 January 2013 and the award of the arbitrator is dated 18 January 2013 and was received by the Applicant on 28 January 2013.

[6] On receipt of the award, the Applicant instituted these review proceedings. The grounds of review may be summarised as follows:

6.1         that the arbitrator failed to properly capture evidence;

6.2         that the arbitrator failed to apply his mind to the evidence presented to him at the arbitration;

6.3         that the arbitrator committed misconduct in relation to his duties as a commissioner;

6.4         that the arbitrator's findings were not that of a reasonable decision-maker;

6.5         that the arbitrator did not make proper credibility findings; and

6.6         that the arbitrator failed to apply arbitration guidelines.

The specific grounds of review in relation to the evidence

[7] The Applicant alleges that the arbitrator failed to properly capture evidence. In paragraph 11 of his award, the arbitrator recorded that Mr Oosthuizen took three relief drivers to the truck stop at the Engen Garage "from Greenhill Lodge to fill diesel (sic)". The evidence of Mr Oosthuizen was that he went to the truck stop with three relief drivers in order to effect a driver exchange. This is borne out by the record of proceedings on review at page 171 (page 106 of the transcript, lines 10 to 19). The Applicant contends that the arbitrator failed to capture the evidence properly, in that Mr Oosthuizen went to the truck stop with relief drivers with the specific purpose of effecting a change of drivers.

[8] The second basis of review is that the arbitrator failed to apply his mind to the evidence. The Applicant sets out a number of examples on which it relies. The Applicant contends the background to the award sketched by the arbitrator in paragraph 5 omitted a number of important aspects, such as the challenge to Mr Oosthuizen's authority, the disruption to the Applicant's operation, and the domino effect that resulted. The Applicant contends that the arbitrator failed to apply his mind to the fact that the Second Respondent was aware of the practice of changing trucks. The Applicant takes issue with the fact that the arbitrator did not apply his mind to the evidence that the misconduct was "a Grade 3 offence" in terms of the Applicant's disciplinary code which merited dismissal, and that the Second Respondent's refusal was wilful and based on the fact that Mr Oosthuizen allegedly did not greet him. The Applicant deals with evidence of the Second Respondent's witness, Mr Dlamini, who confirms that Mr Oosthuizen is the superior and can order the change-over of a vehicle.

[9] The third basis of review is that the arbitrator committed a gross irregularity in that he misconducted himself in relation to his duties as a commissioner by refusing to take into account the testimony of one of the Applicant's witnesses, Mr Wessels, during the proceedings. Inter alia, the arbitrator stated as follows on the record:

‘The only relevant witness in this particular case is Mr Oosthuizen.  I am not going to attach any value to what you are wasting time with during the course of this process.  I am not going to attach any weight into the other witnesses, except Mr Oosthuizen, because that is the relevant question that will deal with the Applicant in term of what transpired."  The arbitrator added to that by stating "the other witnesses are not going to add any value’. 

In fact, Mr Wessels' evidence was clearly relevant on the impact the alleged misconduct of the Second Respondent had on the Applicant's operation, and that it was the job of Mr Oosthuizen to order the changing of truck drivers. This evidence was not taken into account or even recorded in the award of the arbitrator, as is evident from paragraph 10 of his award where he deals in scant detail, if at all, with the evidence of Mr Wessels.

[10] The fourth basis of review was that the findings of the arbitrator were not that of a reasonable decision-maker. The Applicant contends that a reasonable decision-maker would not have found that the Second Respondent's refusal was justified in the face of the instruction from his supervisor for the reasons as set out by the arbitrator in paragraph 21 of his award, which included that Mr Oosthuizen allegedly did not greet the Second Respondent when Oosthuizen contended he did; that the evidence of Mr Ramokondo was inconsistent with that of Mr Oosthuizen in material respects when such inconsistencies that did exist were irrelevant; that such an instruction had to come from a person known to the Second Respondent; that drivers may not hand over a truck full of stock; and that a handover only takes place at Green Hill Lodge when the evidence was that it also happens at the truck stop.

[11] The Applicant contends that a reasonable decision-maker would have found that the Second Respondent's refusal was unreasonable especially if he was being relieved and maintains that the Second Respondent drove off leaving Mr Oosthuizen, the person in charge, looking helpless, incompetent and with his authority seriously undermined in front of three other drivers.

[12] The Applicant contends that a reasonable decision-maker would not have granted reinstatement where there is a wilful refusal to obey an instruction from a person in authority and that a reasonable decision-maker would have given reasons why reinstatement was appropriate in such circumstances.

[13] In addition, during argument, the Applicant's counsel referred me to paragraph 23 of the award of the arbitrator, where he invoked "public policy" in support of his contention that a driver carrying a load remains liable and responsible for such stock until offloading. The arbitrator thereafter appeared to take judicial cognisance of the lawless state of our roads as a further justification for the Second Respondent refusing to act as instructed by his superior Mr Oosthuizen. The Applicant contends there was no such evidence adduced at the hearing. The Applicant's counsel also referred me to paragraph 22 of the award, where the arbitrator found that an instruction must come from the person known to the employee. The Applicant contends that an employee must follow an instruction from a superior, known to the employee or not.

[14] The fifth basis of review was that the arbitrator did not make proper credibility findings. In particular, the Applicant takes issue with the arbitrator for not giving sufficient weight to Oosthuizen's evidence that he greeted the Second Respondent and that he found him alone at the truck stop. The evidence of Mr Dlamini on behalf of the Second Respondent introduced for the first time the aspect of other drivers refusing instructions and not being disciplined when this was not put to any of the Applicant's witnesses. The arbitrator failed to apply his mind to the Second Respondent presenting a new version at the arbitration as opposed to the disciplinary hearing or to the contradictions in the Second Respondent's evidence relating to being told to change with another driver. The arbitrator failed to assess the credibility of the Second Respondent's evidence in light of him stating that if he had been greeted he would have followed the instruction and thereafter stating that he had to complete the load and that under no circumstances would he hand over the truck without offloading. The arbitrator failed to assess the Second Respondent's credibility on the question as to whether Mr Oosthuizen gave him an instruction when he initially stated he did not know, thereafter said that he did not understand and thereafter stated that the greeting - or lack thereof - was not a problem.

[15] The final ground of review is that the arbitrator failed to apply the arbitration guidelines. The Applicant did not state in what regards such were not followed.

The first and second respondent's opposition

[16] The Second Respondent's Answering Affidavit to the Applicant's Founding Affidavit consists in the main of bare denials. The specific referrals to evidence by the Applicant are not challenged with reference to the record of proceedings.The Heads of Argument submitted by the First and Second Respondents consist of a review of the case law on review, and on insubordination.

The test on review

[17] It is trite, post Sidumo and Another v Rustenburg Platinum Mines Limited and Others (Sidumo),[1] that the test to be applied by this Court in deciding whether an arbitrator's decision is reviewable is whether a decision reached by the arbitrator is one that a reasonable decision-maker could not have reached. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision-maker could make. In Gold Fields Mining South Africa (Kloof Gold Mine) v CCMA and Others[2] the Labour Appeal Court held as follows:

‘In short: a review in court must ascertain whether the arbitrator considered the principal issues before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’[3]

[18] In Head of the Department of Education v Mofokeng and Others,[4]  the Labour Appeal Court held as follows:

‘Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry.  In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result.  Whether the irregularity or error is material must be assessed and determined with reference to the distorting affect it may or may not have had upon the arbitrator's conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome.  If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA.  Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable.  By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the inquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone.  The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.’[5]

The arbitrator's award weighed against the grounds of review

[19] In my view, the arbitrator failed to properly capture evidence, he failed to apply his mind to the evidence presented to him, he committed misconduct in relation to his duties as a commissioner, and he did not make proper credibility findings. The Applicant's cited examples in its founding affidavit and heads of argument, which I have dealt with in some detail above, withstand scrutiny and are properly adduced. As a consequence of the aforegoing, his findings were not that of a reasonable decision-maker.

[20] The arbitrator failed to capture evidence properly in that he misconstrued the nature of the visit by Mr Oosthuizen to the truck stop at the Engen Garage. It is clear from the evidence that Mr Oosthuizen went to the truck stop with the clear objective of changing drivers. The arbitrator found, against the evidence that the attendance at the truck stop was to fill up with diesel. Implicit in this mistake was that the arbitrator misconstrued the reason why Mr Oosthuizen went there in the first place.

[21] The arbitrator did not apply his mind properly to the evidence relating to the authority of Mr Oosthuizen to order the change of drivers, to the evidence that the Second Respondent and his witness knew that when ordered to do they had to agree to hand over their trucks to relief drivers, and that a wilful refusal to do so in front of three relief drivers amounted to insubordination. The arbitrator failed to apply his mind to the fact that the Applicant correctly regarded the charge as a Grade 3 offence justifying dismissal and instead found a host of reasons why the Second Respondent was justified in refusing to follow the instruction to hand over the truck. The reasons the arbitrator relied upon were flawed.

[22] The arbitrator refused to give due weight to the testimony of Mr Wessels. The evidence of Mr Wessel was important in regard to the impact the misconduct had on the Applicant's operations, as well as his evidence that it was the job of Mr Oosthuizen to order the change of truck drivers. Mr Wessels further gave evidence in relation to whether the Second Respondent had to offload his load first and thereafter obey instructions, which he stated was not the case at all.

[23] The arbitrator failed to make proper credibility findings in regard to the evidence of the Second Respondent, in particular the various contradictions that emerged from the Second Respondent's evidence, or to the evidence that other drivers had allegedly also refused to follow an instruction when such evidence was not put to the Applicant's witnesses and was presented for the very first time during the evidence of the final witness called on the Second Respondent's behalf. The arbitrator should have made proper credibility findings in this regard which would have impacted negatively on the credibility of the Second Respondent.

[24] In addition, the arbitrator concluded, without any evidence on this aspect which flew in the face of the evidence to the opposite effect which he ignored, that public policy dictates that a driver carrying a load remains responsible for the load until offloading occurs. The arbitrator took judicial cognisance of the lawless state of our roads as justification for his proposition that it would not be reasonable to hand over a loaded truck without completing his delivery schedule. There was no evidence to that effect by any witness. He also found without justification that an instruction must come from a person known to the employee.

[25] The arbitrator failed to assess the seriousness of the insubordination, which is what the charge against the Second Respondent amounted to. Insubordination consists of an intentional or wilful defiance of the employer's authority. In this instance, the arbitrator should have found that the instruction given by Oosthuizen was reasonable; that there was nothing preceding the instruction which entitled the Second Respondent to think he could or should defy it as he did; that his defiance was public i.e. in front of three relief drivers; that the instruction was repeated and still defied; and that as such, it was a case of serious insubordination.

[26] In all the circumstances, the findings which the arbitration reached were not those that a reasonable decision-maker could have reached. The arbitrator should have found that the refusal of the Second Respondent to obey Mr Oosthuizen's instruction was not justifiable. The arbitrator should have found that such refusal in the presence of three other drivers amounted to insubordination and a severe undermining of the authority of Mr Oosthuizen. The arbitrator should have found that Mr Oosthuizen had the authority to order a change in drivers at any stage. The arbitrator should have found that the diversion of the truck on the day in question had a considerable impact upon the Applicant's operation. The arbitrator should furthermore have given reasons for ordering reinstatement in light of evidence presented before him, although that is not relevant in light of the order which is granted hereunder.

[27] When the arbitrator's award is viewed in its totality, it is clear that he misconceived the nature of the inquiry, he failed to apply his mind to issues and to consider evidence which was material, he misconducted himself in the conduct of the inquiry, he made findings which were not supported by evidence and he ignored relevant evidence. In the circumstances, the arbitrator's decision was one that a reasonable arbitrator could not have reached on a conspectus of all the facts before him.

[28] I am of the view that this award cannot stand and that it should be interfered with on review. I see no reason why costs should not follow the result.

Order

[29] In the premises, I make the following order:

29.1      the arbitration award issued on 18 January 2013 under Case No. NELRFBC 21251 is reviewed and set aside;

29.2      the arbitration award is substituted with an order that the Second Respondent's dismissal was fair;

29.3      costs are awarded to the Applicant.

______________________

Nicholas Robb AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

FOR THE APPLICANT:                   Adv Pillay

                                                                Instructed by Yusuf Nagdee Attorneys

FOR THE RESPONDENTS:           Mr M M Baloyi

---

---