Of interest to other judges

THE LABOUR COURT OF SOUTH AFRICA, HELD AT CAPE TOWN

Case no: C164/2019

In the matter between:

KEVIN MALGAS	Applicant	
and		
NATIONAL BARGAINING COUNCIL FOR THE ROAD FREIGHT AND LOGISTICS INDUSTRY	First Respondent	
J J KITSHOFF (N.O.)	Second Respondent	
SESFIGILE LOGISTICS CC	Third Respondent	

Date of Hearing: 12 June 2020 (in chambers on papers)
Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 15 July 2020.

Summary: (Review-condonation for late filing – clause 11.2.3 of Practice Manual inapplicable where review application not filed by expiry of 60 day period- late filing of review condoned – award of unfair dismissal substituted)

JUDGMENT

LAGRANGE J

Introduction 
[1]	The review application was enrolled for hearing on 2 June 2020 but was postponed until 12 June 2020. It was postponed after the third respondent (‘Sesfikile’) filed an interlocutory application on 29 May 2020 seeking an order that the review application ought not to be heard until such time as the applicant had filed a condonation application for the late filing of the review and an application to reinstate the review application which it claims was deemed to be withdrawn.
[2]	Sesfikile contends that, because the record was not filed under rule 7A [6] of the Labour Court Rules within 60 court days of the applicant, Mr Malgas (‘Malgas’) being advised by the registrar that the record had been received, as required by clause 11.2.2 of the labour court practice manual, the review application was deemed withdrawn in terms of clause 11.2.3. Quite apart from this he had not filed a condonation application for the late filing of the review application in the first place.
[3]	The following directive was issued on 2 June 2006, in view of the interlocutory application of the third respondent claiming that the review application could not be entertained in the absence of an application for condonation of the late filing of the review and an application for reinstatement of the review application, in view of the record been filed more than 60 days after the applicant was advised that it was available by the registrar:

3.1	The review application is removed from the roll on 2 June 2020 and postponed to 10h00 at 12 June 2020 for argument using Zoom.
3.2	It is further directed that:

3.2.1	The applicant must file an answering affidavit to the interlocutory application filed by the third respondent by close of business on Monday 8 June 2020 and the  third respondent must file any answering affidavit by 12h00 on Thursday 11 June 2020.
3.2.2	Heads in the interlocutory application must also be filed by 12h00 on Thursday 11 June 2020.

[4]	The hearing on 12 June 2020 was conducted using a Zoom teleconference.

Background

[5]	The arbitration award was handed down on 11 February 2019 and received by the applicant at least by the end of that month.
[6]	The applicant was notified that the record was available for collection from the registrar on 26 March 2019.
[7]	It appears that an unsigned version of the notice of motion and founding affidavit was served on 27 May 2019, which would still have been over seven weeks’ late as the review ought to have been filed by 10 April.
[8]	The review application was served on the registrar on 28 June 2019, which is the same day the record was uplifted from the registrar. A complete application was only served on the third respondent a month later, on 2 August 2019. Since filing was only completed on that date, the review application itself was filed six months’ late.
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[1]	The record was filed on 1 August 2019, with an apology. Sesfikile argues it should have been filed by 31 May 2019 and accordingly should be regarded as withdrawn.
[2]	The applicant’s notice under rule 7A(8) was filed by 15 August.

[3]	Although clause 11.2.3 of the Labour Court Practice Manual would normally be applicable, which would require the applicant to file an application to reinstate his review application, because of the most peculiar sequence in which documents were filed, no review application had been properly filed when the record was made available for transcription on 26 March 2019. Consequently, the deeming effect of clause 11.2.3 did not occur and it was not necessary for Malgas to apply  to reinstate his review application. There was no review application which could be deemed to have been withdrawn, once the 60 days for filing the record after 26 March 2019 had expired.
[4]	The prosecution of the review application only began when the notice of motion and founding affidavit were filed by which stage the record had already been filed.

Condonation of the late filing of the review application

The delay and the explanation therefor

[5]	The upshot is that the review application was still filed six months late, which is a long delay. Malgas should have applied for condonation before the issue was raised by Sesfikile and not done so by way of an answering affidavit in the dismissal application. In any event, his request for condonation for the late filing of the review is considered below based on the very limited averments he made.
[6]	Malgas’s explanation for the delay is stated in very broad terms and lacking in detail. In essence, it relates to his alleged difficulties in having the short 25 page record transcribed. He says in April and May 2019 he was unemployed and therefore did not have the financial means to make transcripts of the record. He also states that the transcribers were reluctant
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to commence transcribing before payment had been received in full but does not state when he took the disc to a transcription service. He also says that he had to incur “various loans” to pay for the service, but provides no specifics about the transcription costs and when he obtained the loans in question. Equally vaguely, he says that he also needed the assistance of a legal representative as he realized that without such assistance he would have been ‘clueless’ about the court process, but does not say when he obtained legal representation. Accordingly, he claims that he processed the application himself, including the final filing of papers, on a trial and error basis without any legal assistance.
[7]	What Malgas does not explain is how the record came to be lodged by the bargaining council with the registrar. It is inconceivable the bargaining Council would have lodged the record unless it had received a review application. He must have taken some step for the Council to have produced the record within a month of him receiving the award. I note in this regard that he had already obtained a case number on 7 March 2019. Without knowing the case number the bargaining council could never have correctly lodged the record with the registrar. Evidently the council must have received some notice of the review application at that stage, but the same was not conveyed to the third respondent. These unexplained events are a matter of concern to the court as they could not have happened by sheer chance, and raise a question why there is no record of anything being conveyed to Sesfikile at that time.
[8]	It does appear that Malgas did send unsigned documents to the respondent by email to the company on 27 May 2019, so Sesfikile was at least aware that he was attempting to review the award. It also shows he was in a position to file his notice of motion and founding affidavit by the end of May 2019. At the end of June 2019 he filed a signed copy of his founding affidavit but did not sign the notice of motion. Even though the notice of motion did not have the applicant’s signature on it, in circumstances where he was acting for himself and where he had attested to the founding affidavit, I do not think the omission is a material one. For all intents and purposes, I am willing to accept that the application was launched by 28 June 2019. Even so, the review application was filed
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somewhat over two months late as it should have been filed by 10 April 2019. The record was filed a little over a month later at the beginning of August 2019.
[9]	The explanation for the delay is unsatisfactory as the applicant does not explain why he only first attempted to file documents, albeit incomplete ones, until the end of May or what prompted him to make a second attempt only at the end of June. He did not have the record in May but was able to draft his founding affidavit. He was in no better position at the end of May to file his founding papers than he was in March.
[10]	He also does not take the court into his confidence as to when he  retrieved the record for transcription and when he took it to the transcription service. There is also the unexplained anomaly of the bargaining Council lodging the record with the registrar which is highly improbable if it had not received a review application.
[11]	The sketchy explanation provided, including the significant unexplained anomalies in the progress of the review application, is not a satisfactory justification for a significant delay. Despite this, are the merits of the review application such that it would not be in the interests of justice to deny the applicant the opportunity of reviewing the award?

Prospects of success

[12]	Malgas was dismissed for making an unauthorized stop at certain premises in Mitchells Plain in the early evening on 15 March 2018, having been employed for just under two years by the third respondent. He claims that he was supposed to deliver four 20 litre drums of Engen product to that address on 12 March but could not find the address that day. The customer in question nonetheless signed that the goods were received on 12 March.
[13]	Photographs were produced showing the applicant and his assistant handling 210 litre drums of Engen product at the premises on 15 March. The relevance of this appears to be that the third respondent received information that two stolen drums of Engen product had been delivered to the customer’s address on 14 March 2018 and that the customer was
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given Malgas’s cell phone number and he arrived to collect the two drums on 15 March 2018. Sesfikile believes that he was a party to the theft of the Engen products and that was the only reason he went to the premises on 15 March. All the evidence presented in this regard was hearsay and the photographs do not show the drums in question being loaded onto any vehicle.
[14]	The applicant claimed that he had told his supervisor that he could not make delivery of four 20 litre drums he was supposed to deliver 12 March and that he would do so on 15 March. It is common cause that he failed to log his visit to the premises on 15 March. He claimed in his evidence that the reason he had not made the delivery on 12 March was that he could not locate the premises so he kept the goods in the truck in order to make the delivery when he had another opportunity to find the address.
[15]	The tracking device on the truck showed that on 12 March, the vehicle  was at 92 Cricket Crescent, Mitchell’s Plain. The address of the customer was 82 Cricket Crescent and that is the address Malgas said he delivered drums to on 15 March. Nevertheless, on that date the tracking device showed the vehicle was at 91 Cricket Crescent. Malgas testified that although there was a tracker on the vehicle, he had to locate the delivery address without GPS assistance.
[16]	Malgas claims the next opportunity to make the delivery arose on 15 March and he then delivered the drums to the customer. His explanation why he and his assistant appeared in photographs next to the drums Sesfikile claimed were stolen was because the customer had asked them to move those drums into another position. Even though the customer signed that he had received the delivery on 12 March, it was only on 15 March that the drums were delivered. He claims that he did not attempt to complete that delivery on 13 and 14 March because he was not travelling in the direction of that address. Malgas denied he was made aware during the induction course for delivering Engen products that they were not permitted to make unauthorized trips and claims that this rule was only introduced in May.
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[17]	The arbitrator found it implausible that he could not find the premises on one day but found them on the next occasion. The arbitrator found that Malgas’s failure to complete his log sheet on 15 March and the absence of being able to explain this led to conclude that the applicant was not being honest about his movements. He found it more probable that he had delivered the goods on 12 March which was the day the customer signed for them and there was no reason for him to go back there on 15 March. The arbitrator also found that it was improbable that the applicant would deviate so far from his route after 6 pm on 15 March in order to make a delivery. On that day he had been scheduled to make deliveries in Worcester, Ceres and Caledon. He also noted that the rule against unauthorized stops was a standard practice in the road freight and logistics industry and found that Malgas’s contract of employment prohibited such conduct. He found that the trust relationship was irreparably breached and accordingly the dismissal was fair.
[18]	As is often the case with laypersons, Malgas’s grounds of review are more like grounds of appeal. They are also not entirely coherent. In essence, they attack the findings of the arbitrator on the basis that certain evidence did not support some of those findings and conclusions. In short, as set out in the founding affidavit, which was not supplemented, the grounds of review are:
18.1	His supervisor knew that he still had the drums for delivery on his truck on 13 March 2018, yet the arbitrator concluded that he did not notify his supervisor of this.
18.2	On 15 March 2018, he was driving a small truck without a tail-lift which could not be used for the transport of 210 litre drums.
18.3	Contrary to the arbitrator’s claim that clause 7.1.11 of his contract of employment prohibited him or his assistant from making unauthorized stops, there was no such provision in his contract.
18.4	The arbitrator ignored the fact that there was an email proving that he and his assistant had delivered 20 litre drums to the customer and not 210 litre drums.
18.1	
18.5	The arbitrator ignored the fact that he had never been charged with unauthorized stops, theft or even late coming prior to the events in question.
18.6	The arbitrator failed to appreciate that his assistant who was charged with him is still working for the company and was found not guilty despite the evidence against them being the same.
18.7	Two of his colleagues who were also charged with the same offense but admitted to the misconduct were not dismissed for that.
[19]	As mentioned, these grounds are cast in the form of grounds of appeal, but I will assume in Malgas’s favour that they are intended to demonstrate that if the arbitrator had considered these claims, the arbitrator could not have come to the conclusion he did. In the heads of argument filed in support of the review application, an attempt was made to frame grounds of review in much broader terms that went beyond what was stated in the founding affidavit. This is contrary to the principle that the factual averments on which the grounds of review are based must be set out in the founding and supplementary papers of the applicant and cannot be advanced for the first time in argument, viz:
‘Our courts do not allow applicants in review proceedings to raise new grounds
of review in replying affidavits or from the bar during argument (Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635H-636B). ‘
[20]	Malgas is now legally represented, and has no doubt been advised that  his review can only succeed if he can show that the arbitrator could never have come to the conclusion he did had he not made the mistakes Malgas complains of. In essence, since the judgment of the constitutional court in Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC), the LAC has elaborated on the test to be applied in a reasonableness review. In Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC) the LAC stated:
‘[33] 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 enquiry. 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 effect it may or may not have had upon the arbitrator's conception of the enquiry, 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 enquiry 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.’ 
[emphasis added]

[21]	The question the court must consider at this stage is whether the grounds of review raised hold some prospect of success.
[22]	Regarding the arbitrator’s conclusion that Malgas did not advise his supervisor, Mrs. J that he still had the drums for delivery on his truck on 13 March 2018, the evidence simply does not support the arbitrator’s conclusion. More than once, Mrs J acknowledged that Malgas had told her that they were unable to do the delivery on 12 March. That being the case, it significantly raises the probability that the delivery had to be made on a subsequent date and that it is not implausible it could have been on 15 March. What she did dispute was that he specifically told her he was going to make the delivery on 15 March.

[23]	In relation to the arbitrator’s finding that clause 7.1.11 of Malgas’s contract of employment prohibited him or his assistant from making unauthorized stops, no evidence of this kind was led in the course of the evidence during the arbitration proceedings. In fact, Mrs J testified quite the opposite:
‘And as we have now found out that in his contract it is not stated about the unlawful and unauthorized stop, but yet in the HAZCHEM training that they do every year it is stipulated there. And with the induction…
When Malgas cross-examined Jooste he challenged her that the rule on unauthorised stops existed at the time of the events. She did not answer directly but claimed that vehicle movements had always been tracked. However, it is apparent the arbitrator did look at the documents in the bundle and found a provision in a document entitled SQAS Management System, Human Resources which states:
‘ 7.1.1 No driver or Assistant is authorized to stop or allow stopping of any Sesfigile vehicles without authorisation for any reason as this is linked to fuel theft, should the tracking department discover that this provision has been contravened disciplinary action will take place with a sanction of not less than Final Written Warning, Supension and Dismissal. Should it be discovered that the driver’s assistant is an accomplice in these transgressions the same disciplinary measures will apply.’

(sic)

Clearly this is the provision the arbitrator had described as being in Malgas’s contract of employment even though this was never referred to in evidence by Jooste and strictly speaking was not part of the evidence led in the arbitration hearing.
[24]	The arbitrator should at least have drawn the parties’ attention to this clause and given them a chance to deal with it in the arbitration before relying on it. The arbitrator came to the conclusion that the rule was established and known to Malgas on the basis of Malgas’s Hazchem and Engen induction training, which was alluded to in one line of Jooste’s evidence. The only other reference to this training was a brief cross- examination of Malgas about what that training entailed. All that
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questioning yielded was that Engen had emphasized the importance of their product been delivered. Jooste did not put any documentation to Malgas to contradict him or to support her claim of what had been covered in either training program.
[25]	The complaint about the arbitrator’s understanding about which drums had been delivered does not seem to have any bearing on the outcome of the award.
[26]	Once the arbitrator had found that Malgas was aware of the rule and had transgressed it, he dismissed his version as being without merit and simply concluded that the sanction of dismissal was appropriate. Nothing indicates that he gave any consideration to the existence of mitigating factors and, more particularly, Malgas’s prior disciplinary history. The arbitrator ignored the fact that he had never been charged with unauthorized stops, theft or even late coming prior to the events in question. To the extent that he relied on paragraph 7.1.11 dealing with unauthorised stops (quote above), which was clearly intended to address theft of petrol from vehicles, the arbitrator made no attempt to explain why Malgas’ transgression on this occasion did not warrant a final written warning.
[27]	As mentioned, Malgas in his review application challenged the fact that other staff charged with the same misconduct or similar offenses were not dismissed. Whether that is so or not, this was not something that he put before the arbitrator and accordingly the arbitrator can hardly be criticized for not dealing with this issue.
[28]	In light of the above, I am satisfied that even if there was a practice that unauthorised stops could give rise to disciplinary measures, and even if it would not have been unreasonable of the arbitrator to conclude that the trip to the premises in Cricket Crescent on 15 March was not specifically authorised for that day, there was nothing before the arbitrator to suggest that such misconduct warranted dismissal on a first occasion. The same reasoning applies even if I accept that the arbitrator was entitled to rely on paragraph 7.1.11 even though it was not led as part of the evidence.
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[29]	On the question of the appropriateness of dismissal, there was also no direct evidence led that the trust relationship had been destroyed. It is possible that the arbitrator’s finding in this regard might have been influenced by assuming that the only reason for going to the premises on 15 March was connected with the stolen drums. However, there was no evidence that Malgas had actually collected the stolen 210 litre drums  from the premises on that date. Jooste had agreed that Malgas had advised her that the 20 litre drums that were to be delivered had remained on the vehicle after 12 March and, by implication, must have been delivered after that date. It was never suggested to Malgas that he had misrepresented to Jooste that the 20 litre drums remained on the vehicle. By ignoring this evidence, the arbitrator did not consider why Malgas would have said the 20 litre drums were still on the vehicle if he had delivered them and therefore did not consider that there was another legitimate reason why he might have gone to the premises on 15 March, which had nothing to do with stolen drums delivered to the same premises by a third party.
[30]	In any event, the arbitrator’s conclusion that the trust relationship  had been destroyed is not explained. If it was based on the unstated conclusion that his trip on 15 March was directly related to the stolen drums, such reasoning was tendentious given the slender hearsay evidence actually tendered in support of any complicity on the part of Malgas. At best there might have been a suspicion raised but the arbitrator never articulated this and it would have been improper to draw inferences from the hearsay evidence tendered in this regard.
[31]	In conclusion, I am satisfied that at the very least that Malgas would succeed in establishing that the sanction of dismissal was not justifiable on the available evidence. It follows that the prejudice to him of not  condoning the late filing of his review application would be significant. In the light of the discussion above, notwithstanding the chaotic sequencing of his review application and poor explanation for all of the delay, I believe the late filing of it should be condoned.
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The review and relief

[32]	Because the merits of the review application have been dealt with in some detail in considering the review application, it is unnecessary to repeat that discussion here. In conclusion, I am satisfied that there was enough evidence for the arbitrator to have accepted that it is improbable that there was no prohibition on unauthorised stops, even if direct evidence of the express policy set out in paragraph 7.1.11 was not properly adduced. However, there was no basis for inferring that it was a practice that dismissal was the recommended sanction for a first offence, or even that it was the norm that such a sanction was regularly imposed in such cases. In this regard, it is noteworthy that the disciplinary code recommended a final written warning for the first act of non-compliance with standard operating procedures of the company. Moreover, even if regard is had to paragraph 7.1.11 dismissal was not the only recommended sanction.
[33]	It is arguable whether the arbitrator was correct in concluding that the stop at the premises on 15 March was not authorised, but I cannot say that it was a conclusion he could not reach on the basis that it had not been part of the planned route on that day and Malgas implicitly accepted that stopping at those premises had to bear some reasonable connection to the scheduled delivery route he was due to travel that day. This was evident from his explanation that it was not out of the way to make the delivery on his way back from Ceres. It is noteworthy that what Jooste emphasised was that Malgas had not told her in advance of his intention  of making the delivery in Mitchell’s Plain on 15 March, so it was not part of his agreed delivery route that day.
[34]	However, even if it the conclusion that the trip to Mitchells Plain on 15 March was not authorised, the conclusion that it warranted dismissal for a first offence, in circumstances where there was no prior disciplinary history, could not have been one the arbitrator could reasonably arrived at on the evidence. To the extent that he surmised the purpose of the trip was nefarious and that influenced his thinking the evidence that this was the most probable reason for the trip was very tenuous at best. His
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conclusion that the trust relationship had broken down could not be justified on the available evidence properly before him.
[35]	In the circumstances, the arbitrator’s conclusion that Malgas’s dismissal was substantively fair must be set aside and substituted. Insofar as retrospectivity is concerned, I have taken Malgas’s dilatoriness in finalising the review into account as well as his failure to seek condonation until this was raised by Sesfikile.
[36]	On the issue of costs, I believe it is fair in the circumstances where the employee’s own conduct necessitated the condonation application and where he was only legally represented in the hearing itself that he should only be entitled to the costs directly associated with the hearing on 12 June 2020.

Order

[37]	The arbitration award of the second respondent handed down on 11 February 2019 under case number WCRFBC 51990 is reviewed and set aside insofar as the second respondent concluded that the sanction of dismissal was appropriate and fair.
[38]	The second respondent’s finding that the dismissal of the applicant was appropriate and fair is substituted with a finding that his dismissal for making an unauthorised stop was unfair.
[39]	The third respondent must reinstate the applicant with retrospective effect to 15 July 2019, subject to the applicant being issued with a final written warning for making an unauthorised stop.
[40]	The applicant must tender his services at the third respondent’s premises within 15 days of the date of this order.
[41]	The third respondent must pay the costs of preparation for, and appearances on, 12 June 2020, including the drafting of heads of argument.
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Lagrange J Judge of the Labour Court of South Africa

Appearances		
For the Applicant:	N. Sauls instructed by DB Attorneys	
For the Third Respondent:	T Nkambule of Sesfikile Logistics CC