An employee was dismissed almost 15 years ago on 4 June 2001 and there were 2 arbitral awards and 3 review applications in the LC. The employer appealed against the judgment of Cele J, dated 11 February 2014. The LAC allowed the appeal and set aside the judgment and upheld the last arbitral award finding that the dismissal was not unfair. The LAC found that Cele J was largely influenced by his own findings in the earlier review application and adopted the same findings and reasoning which led to the setting aside of the earlier arbitration award. ‘That approach, unfortunately, led the learned Judge astray. He overlooked material aspects of Mr Miya’s evidence, which were pointed out in the latest arbitration proceedings. Counsel for the appellant contended, correctly in my view, that the learned Judge isolated and confined his judgment to the evidence serving before the Commissioner, thus ignoring the versions which had been proffered by Mr Miya’. In addition Cele J incorrectly postulated the criminal law standard.
Combined Transport Services (Pty) Ltd v Miya (DA15/2014) [2016] ZALAC 57 (25 November 2016) per Makgoka AJA (Waglay JP and Musi JA concurring)
Excerpts without footnotes
Introduction
[1] This is an appeal against the whole judgment and order of the Labour Court (Cele J) handed down on 11 February 2014, in terms of which the first respondent was reinstated to his previous position as a driver at the appellant with compensation. The Labour Court also ordered the company to pay the costs of the suit. The appeal is with leave of this Court, which was granted on 5 November 2014, after the application for leave to appeal was dismissed by the Labour Court on 1 August 2014.
[2] The appellant is a company involved in the transport industry in Phoenix, Durban, KwaZulu-Natal. The first respondent (Mr Miya) is an erstwhile employee of the company. The second respondent is the Commission for Conciliation and Arbitration (the CCMA). The third respondent (the commissioner) is an appointed commissioner of the CCMA, who conducted the arbitration proceedings under the auspices of the CCMA.
[3] The matter has a long history and taken inordinately long to be finally adjudicated upon, both in the CCMA and in the Labour Court. Mr Miya was dismissed from the employment of the appellant almost 15 years ago, on 4 June 2001. After three arbitration awards and three review applications, this Court is finally seized of the matter. The circumstances which led to this extraordinary period of lack of finality will be apparent during the course of the judgment. In terms of the arbitration award issued on 17 June 2009, the dismissal of Mr Miya was confirmed as being substantively and procedurally fair.
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The facts
[5] The following is a brief factual background giving rise to the dismissal of Mr Miya. He was employed by the appellant as a bus driver in February 2001. He had to issue tickets for cash-paying passengers. Other, more regular passengers would present a pre-paid voucher. On 30 May 2001, he was on duty, and during the course of his journeys, he encountered two bus inspectors who did a routine inspection, which revealed that there were eight passengers aboard the bus, without tickets. Mr Miya was eventually charged with misconduct for that incident. The disciplinary hearing was scheduled for 4 June 2001.
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Issues on appeal in this Court
[25] In this Court, the appellant assailed the judgment of the Labour Court on four grounds. Firstly, it is contended that by virtue of having heard and determined the earlier review application involving the same parties on the same dispute, the learned Judge did not bring to bear, an unbiased, impartial and objective mind on the issues. In essence, the appellant asserted that the learned Judge should have recused himself from hearing the second review application. Secondly, the appellant argued that the learned Judge erred in finding that because Mr Miya had lodged an appeal on the same day of the hearing, the appellant’s witnesses were lying as to what transpired at the disciplinary hearing. Thirdly, it is contended that the Labour Court was wrong in concluding that the evidence of Mr Nieuwenhuys about the operation of the machine should have been rejected merely because he was not qualified as an expert. Lastly, it is argued that the Labour Court should not have ordered reinstatement and back-pay given the lapse of more than 12 years, where Mr Miya had contributed to the delay.
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Conclusion
[39] To sum up, I agree with the appellant’s contention that the Labour Court failed to have regard to the reasons advanced by the Commissioner in support of the arbitration award. What is more, the Court failed to state why the findings and conclusions made by the Commissioner were reviewable, i.e why they did not fall within the band of findings and conclusions a reasonable decision-maker could have reached based on the evidence before him. In my view, there was nothing unreasonable about those findings. As a result, the award issued by the Commissioner should not have been set aside. The commissioner’s findings are within the band of decisions which a reasonable decision-maker, applying his mind to the facts before him, would have made. The appeal should accordingly succeed.