Grindrod Logistics (Pty) Ltd v SATAWU obo Kgwele and Others (JA53/16)  ZALAC 60 (18 October 2017)
- The test for bias is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias. Mere apprehensiveness on the part of a litigant or even a strongly and honestly held anxiety would not be enough.
- A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently or preferentially and the basis upon which they ought not to have been so treated must be set out clearly.
The employee, a driver of an articulated truck loaded with 8 vehicles, was driving to Walvis Bay on route C26. He realised along the way that he was driving on a gravel road. It was at night and it had been drizzling when he reached a "drift" or low-lying bridge with a heavy fast flowing creek traversing the road. He could not make a U-turn as the road was narrow and his carrier very long. He saw other vehicles passing through the drift. On the next morning, he took a calculated risk of crossing the drift but got stuck. He said:
'When I was trying to pass the trailer fell, I do not know, something stuck... That is when, after the trailer fell and then water started flowing and the sand and rocks as well towards the truck. I tried pressing the panic button, but there was no response.'This incident had serious consequences: out of the 8 vehicles that had been loaded on the hauler, 3 were salvaged and 5 were written-off. The repair costs of the hauler were approximately R1.2 million. The towing costs were in the amount of R204 014.
The employee was subjected to a disciplinary enquiry on two counts: (1) Unauthorised driving off-route and (2) Reckless and negligent driving. He was acquitted on Count 1 on the basis that he was not sufficiently briefed on the authorised route to Walvis Bay. He was found guilty of reckless and negligent driving and dismissed on 2 May 2012. At the CCMA the commissioner found that the employee had driven the truck in a reckless and negligent manner, and found that the employee failed to exercise the standard of care and skill that could be expected of an employee in his position. The commissioner rejected the union's argument that the employer had been inconsistent in the application of discipline. The dismissal was held to be fair.
On review at the Labour Court it was held that the approach adopted by the commissioner created a clear basis for the perception of bias by the union and the employee. This was so because the commissioner enquired from the employer's representative if he wished to call further witnesses after he had made it clear that he was closing his case. The commissioner adjourned the arbitration for a short period and on resumption, the employer's representative changed his mind and stated that he would call a further witness.
The Court held that the postponement of the arbitration, at the instance of the commissioner, was to give the employer the opportunity to arrange the attendance of a witness it never intended to call but for the commissioner's intervention. The commissioner had advanced the employer's case and gave it an unfair advantage. The court held that objectively the employee reasonably perceived or reasonably apprehended bias on the part of the commissioner and that on this point alone the arbitration award should be reviewed and set aside.
On the substantive issues, the Labour Court found that the commissioner had not properly applied his mind to the facts. He ought to have found that the employer failed to discharge its onus of showing that there was a rule prohibiting drivers from driving on gravel roads. The LC held that, even assuming that the rule existed, the rule was not consistently applied and therefore it was unfair to dismiss the employee. The Court further held that the commissioner did not take into account that the employer failed to produce evidence of its actual loss. The LC concluded that the decision by the commissioner is not one which a reasonable decision-maker could have reached, and set aside the award. The LC substituted the award with an order that the employee's dismissal was substantively unfair, and he was reinstated retrospectively from the date of his dismissal without loss of benefits and issued a final written warning valid for a period of six months.
On appeal the LAC held that the LC was wrong in concluding that the employee reasonably perceived or reasonably apprehended bias on the part of the commissioner. The union and the employee did not discharge the burden resting on them to show their reasonable perception of bias on the part of the arbitrator. The test for bias is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias. Mere apprehensiveness on the part of a litigant or even a strongly and honestly held anxiety would not be enough.
On the issue of inconsistency the LAC confirmed that a generalised allegation of inconsistency is not sufficient - a concrete allegation identifying who the persons are who were treated differently or preferentially and the basis upon which they ought not to have been so treated must be set out clearly. The employee had led this evidence, and the employer did not respond by leading evidence to substantiate why the circumstances of other employees who were not dismissed for reckless and negligent driving differed significantly from those in this case. The LAC concluded that the LC had been correct in finding the employer had been inconsistent.
In assessing the sanction for reckless driving the LAC held that the employer was partly to blame for the unfortunate circumstances. All the extenuating factors (including a clean disciplinary record) militated against the sanction of dismissal. The LC's order was confirmed.
Extract from the judgment:
 Before us the following grounds of appeal were advanced on behalf of the Grindrod. That the Court a quo erred in:
27.1. finding that the arbitration award was reviewable on the basis that there had been a reasonable perception of bias on the part of the commissioner.The evaluation
27.2. finding that the commissioner ought to have concluded that Grindrod had failed to discharge the duty of showing that there was a rule prohibiting drivers from driving on gravel roads. It was contended that, on the basis of Mr Kgwele's contradictory versions, pertaining to the pressing of the panic button, he must have been aware of the rule. It was also argued that the Court a quo attached undue weight to the fact that the commissioner refused to allow the union to cross-examine Mr Bhika on the aspect relating to pressing the panic button.
27.3. not appreciating that the commissioner considered the varying circumstances of the employees charged with similar misconduct in arriving at his decision that the dismissal was the appropriate sanction.
27.4. finding that the decision of the commissioner was not one which a reasonable decision-maker could have arrived at and also failed to appreciate the seriousness of Mr Kgwele's misconduct by reinstating and giving him a final written warning.
 In concluding that the dismissal of Mr Kgwele was unfair the Labour Court premised its finding on three pertinent issues which are the subject of this appeal. Firstly, the question of the alleged perception of bias on the part of the commissioner against Mr Kgwele; secondly, the factual and legal basis upon which the commissioner found that Grindrod discharged the onus to proof that Mr Kgwele breached the workplace rule and was therefore guilty of misconduct; and thirdly, the question of the alleged inconsistency in the application of discipline by Grindrod. I now turn to consider these issues in the paragraphs below.
The alleged perception of bias on the part of the commissioner
 The union took issue with the commissioner that, in conducting the arbitration proceedings, he exhibited bias against Mr Kgwele. The union's perception of bias was informed by the commissioner's adjournment of the proceedings in order to afford Grindrod an opportunity to call a further witness it never intended to call; and secondly, by the manner in which the commissioner posed elucidatory questions to Mr Kgwele which, it was contended, advanced Grindrod's course.....
 Ms Driver, for Grindrod, contended that the union's perception of bias on the part of the commissioner surfaced for the very first time during the review. In Satani v Department of Education, Western Cape and Others, this Court remarked that failure to object by a party or its legal representative cannot render an unfair process or conduct fair or acceptable. The test for bias is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias. Mere apprehensiveness on the part of a litigant or even a strongly and honestly held anxiety would not be enough. The question to be answered is: what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude.................
 There can be no question that a commissioner has a legal duty to act impartially in the conduct of the arbitration proceedings. It would defeat the whole purpose of dispensing justice if a commissioner was to surreptitiously hint, through tactical means, to any of the parties to the dispute, that their case was incomplete and required more evidence to be led. It is important to remember that in terms of s142 (1)(a) of the LRA a commissioner who has been appointed to attempt to resolve a dispute may subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute.
 To my mind, to establish that the commissioner acted irregularly in adjourning the proceedings thereby making room or affording Grindrod the opportunity to call further witnesses, the union and Mr Kgwele had to show that he acted mala fide and in breach of his duties so as to afford Grindrod an unfair advantage. That they did not do. It would serve no purpose to speculate on the possible reasons why the commissioner acted as described.
 What follows constitutes the sum total of the questions the commissioner posed to Mr Kgwele in clarification of what had emerged from his evidence ...............
 In my view, the reading of the above extract does not disclose anything sinister in the conduct of the arbitration proceedings. The Commissioner was entitled, in light of the circumstantial evidence presented by Grindrod, to establish, inter alia when, on Kgwele's version, he reached the drift; at what stage he decided to cross the rivulet; and his reason for crossing it.
 I am of the view that the Court a quo was wrong in concluding that Mr Kgwele reasonably perceived or reasonably apprehended bias on the part of the commissioner. The union and Mr Kgwele did not discharge the burden resting on them to show their reasonable perception of bias on the part of the arbitrator.
 Generally, a finding of bias on the part of the commissioner nullifies the arbitration proceedings which would have to commence de novo before a different arbitrator. Having concluded that the commissioner was biased it was not open to the Court a quo, as it did in this case, to determine the matter on the merits. This was a clear misdirection. It ought to have remitted the matter to the CCMA for a fresh arbitration.
The factual and legal basis upon which the commissioner found that Grindrod discharged the onus to proof that Mr Kgwele breached the workplace rule and was therefore guilty of the misconduct:
 A contentious issue arising for consideration under this rubric is whether Grindrod succeeded in proving that there was a rule prohibiting drivers from driving on the gravel roads. The parties' versions on this aspect were irreconcilable. On account of this disparity the credibility of witnesses, their reliability, and probabilities are important factors for the determination of the question.......
 On the conspectus of the aforegoing, the Court a quo erred in concluding that the commissioner ought to have found that Grindrod failed to discharge its onus of showing that there was a rule prohibiting drivers from driving on gravel roads.
 To recapitulate, Mr Kgwele was aware of the caveat that prohibited the travelling on gravel roads. He did not press the panic button when he reached the gravel road. He attempted to cross the heavy flowing stream with the carrier truck which got stuck in the process. The commissioner concluded that Mr Kgwele was reckless or negligent. The criticism of the commissioner's finding by the union that recklessness and negligence are two different forms of culpability, while true, is in my view fastidious. On the reading of the award it is clear that the commissioner's conclusions are founded on negligence. After all, the test for the review of the CCMA arbitration awards is whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach.
 There can be no cogent criticism of the commissioner's conclusion that Mr Kgwele failed to exercise the standard of care and skill that could be expected of an employee in his position. He was of the view that Mr Kgwele ought to have waited for help to arrive as opposed to taking the risk to cross the drift.
The inconsistency in the application of discipline
 The employer is required to apply the penalty of dismissal consistently in a precedent-setting system for essentially similar misdemeanours as employees who were sanctioned in the past as the misconduct under consideration. A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently or preferentially and the basis upon which they ought not to have been so treated must be set out clearly..............
 In SACCAWU and Others v Irvin & Johnson Ltd, this Court held that if a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. With reference to Irvin & Johnson Ltd, this Court, in Cape Town City Council v Masitho and Others pronounced:
'While it is true that an employer cannot be expected to continue repeating a wrong decision in obeisance to a principle of consistency..., in my view the proper course in such cases is to let it be known to employees clearly and in advance that the earlier application of disciplinary measures cannot be expected to be adhered to in the future.' Needless to say, the outcomes of enquiries would differ due to various factors which ought to be thrown in the melting pot and taken into account. In this case, as testified to by Grindrod's witnesses, the degree of negligence, the types of damages incurred, the severity of the incident, the employees' mitigating factors, would have to be duly considered. Regrettably for Grindrod, while it knew of the case it had to meet, it did not adduce any evidence of the six employees' disciplinary records and/or demonstrate that their personal circumstances differed significantly from those of Mr Kgwele.
 In his six years of service at Grindrod, Mr Kgwele had a clean disciplinary record. It is common cause that, although he had been to Namibia prior to the incident, it was for the very first time that he drove to Walvis Bay. It was during a rainy night when he got lost. He was acquitted on Count 1 on the basis that he was not sufficiently briefed on the authorised route to Walvis Bay. Mr Bhika was unable to say why Mr Kgwele was not so appraised by the control centre which, supposedly, monitors the vehicles en route that he was off-route and on a gravel road. In my view, Grindrod was partly to blame for the unfortunate circumstances. All these extenuating factors militated against the sanction of dismissal.
 The commissioner erred insofar as he concluded, without any reference to the employees' disciplinary records and/or personal circumstances,that the cases referred to by the Union to show that the employer was inconsistent in the application of discipline were not sufficiently similar to the case of Mr Kgwele. The Court a quo correctly found that Mr Kgwele provided sufficient information to enable Grindrod to investigate the cases of alleged inconsistency in the application of discipline. Its finding that Grindrod was inconsistent in the application of discipline cannot be faulted. In the premises, the dismissal of Mr Kgwele was substantively unfair. The corollary of this is that the arbitration award falls to be reviewed and set-aside.
 Although our finding that the dismissal was substantively unfair differs substantially from the finding of the Court a quo, it is not necessary to upset its order because same is in line with the order that we would have made. An appeal, by its very nature, is directed at a wrong order and not at incorrect reasoning. The upshot of this is that the appeal must be dismissed.
 Regard being had to the circumstances of the case, I am of the view that, it would not be in accordance with the requirements of law and fairness if Grindrod is ordered to pay the costs of this appeal. I make the following order.
- The appeal is dismissed with no order as to costs.