Supercare Services Group (Pty) Ltd v Du Plessis NO (C92/15) [2016] ZALCCT 9 [2016] 7 BLLR 717 (LC) (31 March 2016) per Steenkamp J.

The Labour Court reviewed and set aside a reinstatement award after deciding it was completely unreasonable.  The dismissal was not unfair.  The employee was alleged to have been in unauthorised possession of toilet rolls which were tossed over a fence and then collected by the employee.

‘The nub of the review is that the arbitrator did not consider the inherent probabilities, but fixated on the minor contradictions between the evidence of Ms Adams and that of Mr Jenkins’.

Excerpts without footnotes

[16] The arbitrator was faced with two mutually destructive versions – that of the employer, that the employee had stolen its toilet paper; and that of the employee, which was a bare denial.

[17] As the court held in Sasol Mining (Pty) Ltd v Ngqeleni NO one of the Commissioner’s prime functions was to ascertain the truth as to the conflicting versions before him.

[18] The manner in which arbitrators should resolve such disputes has often been outlined in terms of the technique set out by the SCA in SFW Group Ltd v Martell et cie

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows.  To come to a conclusion on the disputed issues a court must make findings on

(a) the credibility of the various factual witnesses;

(b) their reliability; and

(c) the probabilities.”

[19] The arbitrator did not weigh up the credibility and reliability of the employer’s witnesses as against that of the employee; neither did he consider the probabilities.

[20] Instead, the arbitrator focused on the contradictions between the versions of Adams and Jenkins.  He did not, in his award, explain how those versions were contradictory.  It is left for the Court ex post facto to gather that from the transcript.  In fairness to the arbitrator, some contradictions are indeed apparent: .  .  .  .

[21] What the arbitrator does not do, is to consider the credibility of the employee; or the inherent improbability of his bald denial.  Both Jenkins and Adams testified that they saw the employee with the black bag and that the bag contained toilet paper.  There was no reason for Jenkins to make up such a story.  He did not even know the employee.  He only learned his name when Adams, the co-employee, told him.  There was also no reason for Adams to make up the story.  In fact, she did not want her identity to be disclosed.  She had no bone to pick with the employee.

.  .  .  .  .

[25] In summary, the arbitrator did not consider the probabilities against the background of the credibility and reliability of the witnesses.  On the probabilities, the only inescapable inference is that the employee did indeed steal the toilet paper.  That is, in my view, the only reasonable conclusion that an arbitrator could have come to on the evidence before him or her.