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[2021] ZALAC 50
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Jacobs v KwaZulu-Natal Treasury (DA7/20) [2021] ZALAC 50; [2022] 3 BLLR 269 (LAC); (2022) 43 ILJ 1286 (LAC) (9 December 2021)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
DA7/20
In the matter between:
NATASHA DONNA
JACOBS Appellant
and
KWAZULU-NATAL
TREASURY Respondent
Heard:
05
November 2021
Delivered:
09
December 2021
Coram:
Waglay
JP, Davis JA and Kubushi AJA
JUDGMENT
KUBUSHI AJA
[1] The
crux of this appeal is whether an employer may invoke a confidential
agreement to conceal wrong doings
in the workplace, and whether an
employee who has signed a confidentiality agreement requires the
permission of the employer to
reveal wrongdoings in the workplace,
particularly when the information is required in legal proceedings,
in this matter, in the
arbitration proceedings.
[2] The
appellant, was charged and dismissed for misconduct concerning the
allegations that the appellant breached
an obligation to keep
confidential information pertaining to a recruitment and selection
process to which she was privy to by reason
of her position as a
member of the selection committee. It was alleged that the appellant
breached such confidentiality agreement
when she disclosed some
information pertaining to the recruitment process, in an affidavit
tendered as evidence in arbitration
proceedings (unrelated to these
proceedings), without first obtaining the permission of the employer.
[3] The
dismissal dispute was referred to the relevant bargaining council.
The pivotal finding of the arbitration
turned on the veracity of the
affidavit in question, particularly in connection with whether the
appellant was telling the truth
when she stated in the affidavit that
the minutes of the selection panel were amended, and whether she
required the permission
of the employer before the information in the
affidavit was released. The commissioner found the appellant not
honest when she
stated that the minutes were amended. The arbitrator,
further, found that the appellant breached the confidentiality
agreement
when she did not seek permission to disclose the
information attested to in the affidavit. Consequently, in the
arbitration award
issued by the arbitrator, the appellant’s
dismissal was found to be procedurally and substantively fair.
[4] The
dispute eventually ended before the court
a quo
on review. The
appellant challenged the arbitration award, alleging that the
commissioner committed several reviewable irregularities
which
amounted to her rendering the award that no reasonable commissioner
could have rendered. The decisive finding of the court
a quo
was that it had no power to review the finding by the arbitrator that
the appellant was dishonest when she stated under oath that
the
minutes of the selection panel were amended. The finding was
reinforced by the court
a quo
’s reasoning that the
appellant chose to pursue the review application without the full
record of the arbitration, thus making
it impossible for the court
a
quo
to determine the credibility of evidence tendered by the
appellant’s witnesses at the arbitration proceedings.
Consequently,
the court
a quo
confirmed the arbitration award
that the dismissal of the appellant was procedurally and
substantively fair, and, dismissed the
appellant’s claim for
relief.
[5] The
appellant aggrieved by the judgment and order of the court
a quo
,
has approached this court, leave to appeal having been granted on
petition to this court, to appeal against the entire judgment
and
order of the court
a quo
.
[6] It
became obvious during the deliberations in this court that the core
issue would turn on the truthfulness
and/or falsity of the affidavit
in question. The parties were, also, in agreement that should the
affidavit be found to be truthful,
the issue of the confidentiality
agreement would fall away. Primarily, the question was whether the
minutes of the selection committee
had been changed. If it was to be
found that the minutes were indeed changed, then, it would mean that
the appellant’s affidavit
was not false, and if it is so, the
issue of the confidentiality does not arise.
[7] The
appeal is opposed only by the first respondent, and for convenience,
I shall in this judgment refer to
the first respondent as the
respondent.
Factual Matrix
[8] The
facts upon which the appeal is based are mostly common cause and are
gleaned from the record of the proceedings.
The appellant was
employed with the respondent in 2015 as Director: Supply Chain
Management, until her dismissal in 2017.
At the time of her
dismissal, s
he had been employed in the Public
Service for twenty-one (21) years.
[9] The
incident that is the subject matter of this appeal occurred in 2009,
when
the appellant was in the employment of
KwaZulu-Natal Department of Community, Safety and Liaison (“the
Department of Community,
Safety and Liaison”). The appellant
was, then, tasked as a member of a panel constituted to recommend a
candidate for appointment
to the position of Assistant Manager:
Assets and Logistics. The other members of the selection panel
included Ms Buthelezi, the
chairperson of the panel, Mr Siphengane
and Mr Ashley Naidoo. Mr Parthab acted as the secretary of the panel.
[10] In
her capacity as a panel member, like other panel members, the
appellant signed a
Disclosure and Confidentiality Agreement
(“the Confidentiality Agreement”)
. In
terms of the said Confidentiality Agreement, the appellant undertook
to keep confidential and not disclose or discuss with
any person
apart from the panel members and the Human Resources representative,
in any direct or indirect manner, any matters raised
in any part of
the shortlisting/interviews or any related matter not mentioned
therein. She, further, acknowledged that she could
be subjected to
disciplinary action if she breached the said confidentiality
obligation, by disclosing, either verbally or in writing
or by any
other means, any matters raised in any part of the
shortlisting/interviews.
[11] In
terms of the job advertisement, candidates were required, amongst
others, to have detailed working knowledge
of various applicable
policies and legislation and to be proficient in a computer program
known as HARDCAT.
The appellant was responsible for setting
the test for the potential candidates on the HARDCAT system whilst
another panel member,
Mr Ashley Naidoo, was responsible for
evaluating the scores of each of the candidates.
[12] Each
of the shortlisted candidates was subjected to a computer literacy
test on the HARDCAT program, followed
immediately by an interview
comprised of a set of specific questions. According to the evidence
of the appellant,
after the selection process was finalised,
two candidates, Ms Van der Merwe and Ms Jamile, were found to have
performed very well,
but it was decided that Ms Van der Merwe be
recommended for the appointment as she had obtained a higher score
than Ms Jamile in
the HARDCAT test.
[13] It
is alleged that a few weeks after the panel discussion in which Ms
Van der Merwe was recommended for appointment,
the appellant received
the minutes of the selection panel from Mr Parthab for signature. It
became apparent to the appellant that
the minutes did not reflect the
correct position as to the person recommended for appointment by the
selection panel. In the minutes,
Ms Jamile was, according to the
appellant, incorrectly referred to as the candidate for appointment.
The appellant refused to sign the minutes and took
the matter up with Ms Buthelezi and was informed by Ms Buthelezi that
it was
her (Ms Buthelezi) prerogative to change the minutes.
The
appellant ended up reluctantly signing the minutes when she was
informed by Mr Ramsamy, her supervisor at the time, that the
Head of
Department had advised that she sign the minutes because of the
various investigations that were taking place in the department
regarding,
inter alia
, vacant posts. Thus,
the
appellant signed the minutes even though she knew the minutes did not
reflect the correct status of what happened during the
deliberations
of the selection panel.
[14] This
evidence of the appellant is denied by the respondent whose evidence
is that the panel members had unanimously
agreed that Ms Jamile was
the candidate to be recommended for appointment, and that the minutes
were signed by all the members
of the panel, as well as the
appellant.
[15] In
2015, when she was already in the employ of the respondent, the
appellant was approached by a representative
of the labour union,
NEHAWU, Mr Vusi Gama (“Mr Gama”), with a request to give
evidence, relating to the 2009 selection
process, in arbitration
proceedings between the Department of Community Safety Liaison and a
certain Ms Nelsen (“the Nelsen
arbitration”). The
appellant was informed by Mr Gama that the commissioner in the Nelsen
arbitration had, with the consent
of the parties therein, ruled that
the said evidence be presented to the commission in affidavit format.
Mr Gama was representing
Ms Nelsen in that arbitration.
[16] When
he approached the appellant for the affidavit, Mr Gama already had,
in his possession, copies of all
the documents from the
recruitment/selection process and a settlement offer to Ms Van der
Merwe, who had lodged a claim against
the department. The documents
had been provided by Mr Kgomotso Malatji, an official of the
Department of Community, Safety and
Liaison, who was representing the
department in the Nelsen arbitration.
Disciplinary Process
[17] A
year later the appellant was charged by the respondent for disclosure
of confidential information through
a sworn affidavit without being
authorised by the department of Community Safety and Liaison and the
submission of a false statement
or evidence to the department when
she responded to allegations of misconduct against her when she said
she provided an affidavit
in respect of arbitration at the request of
the legal administrative officer for the department of Community
Safety and Liaison.
In the disciplinary enquiry that ensued, the
appellant was found guilty of both charges and dismissed.
Arbitration
Process
[18] Not
satisfied with the outcome of the disciplinary enquiry, the appellant
referred an unfair dismissal dispute
to the General Public Service
Sectoral Bargaining Council (“GPSSBC”) for arbitration.
At the arbitration, the appellant testified in her
defence and called two witnesses, Mr Ramsamy and Mr Gama, to testify
on her behalf.
The respondent, on the other hand, called Ms
Buthelezi, Mr Siphengane, Mr Parthab and Ms Van der Merwe as
witnesses.
[19] During
the appellant’s arbitration, it was claimed that the
allegations contained in the appellant’s
affidavit submitted at
the Nelsen arbitration, were false and injurious to the Department of
Community, Safety and Liaison.
[20] In
her defence, the appellant, amongst others, contended that the
affidavit was submitted for a lawful purpose,
namely for a legal
process, a bargaining council arbitration, and if, as they claim she
made false statements in her affidavit,
there could not have been a
breach of confidentiality.
[21] After
the deliberations, the arbitrator found, amongst others, that the
appellant had deposed to an affidavit
that was not true and that she
lied. She found, also, that while the affidavit was for a legal
process, for disclosure to a bargaining
council arbitration, the
appellant had not sought permission to release such statement/such
information. The arbitrator, as a result,
concluded that the
appellant’s actions constituted misconduct of such a serious
nature that her twenty-one (21) years of
service and clean
disciplinary record could not save her from dismissal. Consequently,
the arbitrator found the dismissal to be procedurally and
substantively fair and that dismissal was the appropriate sanction.
Court
a quo
process
[22] Before
the court
a quo
, the appellant sought a determination of
whether there was a basis on which the appellant can claim that the
finding of the arbitrator
was a gross irregularity that required
interference by the court
a quo
. The crucial issue, according
to the appellant, turned on the arbitrator’s finding that the
affidavit in question was false.
The appellant is said to have
submitted an incomplete record of the proceedings of the arbitration
and elected to proceed with
that incomplete record.
[23] As
regards the veracity of the affidavit, the court
a quo
made a
finding that “
during cross-examination of the applicant [the
appellant], First Respondent’s representative appears to admit
that his own
witness, Parthab, had indicated that the minutes were
changed at the behest of the chairperson of the panel, one Buthelezi.
In
fact, it appears that he himself admitted this
”.
[24] Despite
this finding, the court
a quo
declined to interfere with the arbitrator’s factual finding
that the appellant’s affidavit was not true. The reason
for
such refusal is given in the judgment as the appellant’s
failure to include a record of all the evidence that was relevant
to
the arbitrator’s factual finding, in that,
the record of
the arbitration proceedings did not include all the evidence of the
witnesses who testified on this aspect
. The court
a
quo
,
also, found that it was not unreasonable for the arbitrator to find
that a panel member can breach her confidentiality obligation
if she
made any statement about the confidentiality process.
Analysis
[25] It
is common cause that the appellant stated the following in her
contested affidavit:
‘
I,
the undersigned Natasha Jacobs state under oath that:
1.
I
am testifying as a witness in this matter. The facts contained in
this affidavit are within my personal knowledge, unless it is
clear
from the context that they are not, to the best of my belief, true
and correct.
2.
In
2009 I was a member of the panel during the interviews for the post-
Assistant Manager – Supply Chain Management –
Asset and
Logistics – Ref CSL 03/2009.
3.
The
minutes were taken during the interviews for the post- Assistant
Manager – Supply Chain Management – Asset and Logistics
–
Ref CSL 03/2009.
4.
The
minutes were subsequently changed after the interviews for the post-
Assistant Manager – Supply Chain Management –
Asset and
Logistics – Ref CSL 03/2009.
5.
Subsequent
minutes did not really reflect what took place during the interviews
for post- Assistant Manager – Supply Chain
Management –
Asset and Logistics – Ref CSL 03/2009.’
[26] Essentially,
what the appellant attested to was that the minutes of the
recruitment/selection process were
subsequently changed after the
interviews, and that the subsequent minutes did not really reflect
what took place during the interviews.
[27] As
already stated, if indeed the minutes were amended, it means that the
appellant attested to the truth when
in her affidavit she stated that
the minutes of the recruitment/selection process were subsequently
changed after the interviews,
and the subsequent minutes did not
really reflect what took place during the interviews. The only
inference that can be made in
the light of such evidence, if it is to
be found to be true, is that the name of Ms Van der Merwe who was
recommended for appointment
was changed to that of Ms Jamile.
[28] It
is now trite that the test for review is whether the decision reached
by the commissioner is one that a
reasonable decision-maker could
have reached.
[1]
The Labour
Appeal Court in
Khambule
v National Union of Mine Workers and Others
,
[2]
when dealing with the applicable approach to a review, remarked as
follows:
‘
It
needs to be restated that when considering a review, the reasoning of
a commissioner is no guiding light in determining whether
the
decision or more particularly the “order” handed down is
reasonable. Put differently, a court reviewing an award
need not
consider the commissioner’s reasoning to determine whether or
not his/her reasoning justifies the award. The reviewing
court as has
been repeatedly held, must consider all the evidence led at the
arbitration and in the light of that evidence determine
whether the
award is one which any commissioner in the position of the
commissioner, who determined the arbitration, could reasonably
make.
If the answer is in the positive, then there must be no interference
with the award.’
[29] In
the current matter, the evidence that was tendered before the
arbitrator by the appellant was that the
minutes were changed. This
evidence was corroborated by that of Mr Parthab, a witness for the
respondent, who confirmed that the
minutes were indeed changed. The
evidence of Mr Parthab is vital, in this regard. He was the secretary
of the selection committee
and the person responsible for drafting
the minutes. That the minutes were amended would be within his
personal knowledge. On the
basis of Mr Parthab’s evidence, it
is clear that the minutes were indeed amended.
[30] In
oral argument, in this court, counsel for the respondent conceded, as
well, that the minutes were amended.
Counsel, also, submitted in oral
argument in this court that it had been established at the
arbitration proceedings that it was
common cause that the minutes
were changed. He, however, sought to argue that although the minutes
were changed the changes were
unanimously agreed to by the panel
members when they affixed their signatures to the new minutes, which
minutes were also signed
by the appellant. This argument, in my view,
does not change the factual situation that the minutes were amended,
nor does it take
the respondent’s case anywhere. Fact is, the
minutes were amended.
[31] Consequently,
it can be safely said that on the basis of the evidence led at the
arbitration which proved
that the minutes of the selection panel were
changed, and in the light of the fact that it was common cause that
the minutes of
the selection panel were changed, which was further
conceded by counsel for the respondent, it is evident that the
arbitration
award is one which a decision-maker in the position of
the arbitrator could not have reasonably made. It being so, the court
a quo
should have found that, the award made by the
commissioner in this matter, is not an award that any commissioner in
her position,
could have reasonably made. Consequently, the court
a
quo
ought to have set the arbitration award aside.
[32] Even
though the respondent’s counsel ended up conceding that before
the arbitration it was common cause
that the minutes of the selection
panel were changed, he, however, sought to argue that, before the
court
a quo
, there was no evidence to substantiate the
appellant’s allegation that the information in the affidavit
was truthful, this
due to the fact that the appellant did not provide
the full record of the proceedings at arbitration.
[33] Counsel’s
argument is, in my view, misplaced because in actual fact the missing
record was not required
to prove the appellant’s averment that
the minutes were amended. This is so because, firstly, it was common
cause, as I have
earlier indicated in this judgment, that the minutes
were changed. There was, therefore, no need for the appellant to
prove this
point. Secondly, in her founding affidavit before the
court
a quo
, the appellant stated the following:
’
12. A
few weeks later, I was requested by the secretary of the panel, Mr
Parthab, to sign the minutes of the appointment
panel. I noted
immediately that Ms Van der Merwe was not the recommended candidate
anymore, but Ms Jamile was now preferred. I
refused to sign the
minute and advised Parthab that I was not in apposition to do so, and
he advised me that the Chairperson of
the Panel had instructed him to
change the minute and that I should discuss the same with the
Chairperson. I then approached the
chairperson to raise concerns, but
she advised me that her decision was final. I then reported to my
supervisor, Mr Ramsamy, that
the minuted recommendation had been
amended. He asked me to speak to the Chair of the panel, Ms
Buthelezi, which I again did. The
latter informed me that she was the
Chair and she could amend the recommendation if she wanted to. I then
reported to Ramsamy again,
and he told me that he would speak to the
Head of the Department about the matter. He later returned to me and
said that the HOD
had advised that I sign the minute because of the
various investigations that were taking place at the department
regarding, inter
alia, vacant posts. I then reluctantly signed the
minute, not wanting to cause any trouble or endanger my own
occupation.”
[34] The
respondent in its answering affidavit puts all these allegations by
the appellant into dispute and does
not proffer an appropriate answer
thereto. The result is that having gone through all the evidence,
there is nothing to suggest
that the appellant’s version of
events is incorrect. Effectively, there is actually nothing from the
respondent to gainsay
the version of the appellant which was before
the court
a quo
, that would enable this court to reject her
version.
[35] In
essence, in trying to defend the arbitration award, which was
obviously wrong, the respondent in his answering
affidavit tendered
averments which are incorrect. By not responding to the appellant’s
averments as stated above, it means
the averments were admitted; in
particular, the averment that the minute was amended to reflect Ms
Jamile as the preferred candidate
whilst the selection panel had
opted for Ms Van der Merwe.
[36] Significantly,
the deponent to the answering affidavit, Mr Ndumiso Artwell Nkomo,
attested to the answering
affidavit well knowing that the averments
therein were incorrect for he ought to have known that the minutes
were changed.
[37] Furthermore,
the appellant, in my view, did not breach the confidentiality
agreement by tendering such evidence
before the Nelsen arbitration.
It would be a great travesty of justice if this court were to make a
finding that supports the respondent’s
version that the
appellant breached the confidentiality agreement when giving evidence
in an arbitration process or that she breached
the confidentiality
agreement when she disclosed the irregularities and/or dishonesty
that were committed by members of the selection
panel at a hearing
related to what transpired at the selection panel.
[38] It
is, also, my view that an employer may not invoke a confidential
agreement to conceal wrong doings in the
workplace and an employee
who has signed a confidentiality agreement does not require the
permission of his or her employer to
reveal wrongdoings in the
workplace if required to do so in legal proceedings. If permission is
to be obtained first, any dishonest
conduct will never see the light
of day.
[39] The
court
a quo
, also, made such a finding. It expressed itself as
follows in its judgment when considering this issue:
‘
To
my mind, whether misconduct was committed by Applicant really turned
on this point. An employer may not use confidential agreements
to
conceal wrongdoings in the workplace and an employee does not require
the permission of his or her employer to reveal the truth
to a legal
process, such as a court or arbitration proceedings.’
[40] The
respondent’s counsel, as well, conceded that a confidential
agreement may not be invoked to conceal
wrongdoing in the workplace.
The following is said in the respondent’s Heads of Argument:
‘
18.1 It
is at least arguable that it is not the purpose of the
confidentiality obligation to allow panellists to cover
up
substantial irregularities. Consequently, it is arguable that the
Appellant would not have committed misconduct if her affidavit
was
genuinely intended to disclose and/or report substantial
irregularity. The Arbitrator, therefore, needed to determine whether
the allegations in the affidavit were true and/or whether the minutes
had been changed to misstate the unanimous recommendation
of the
panel.’
[41] Although,
in the Heads of Argument it appears as if counsel was uncertain
whether such is the case, however,
in oral argument, in this court,
he conceded that it is so. He agreed that the confidentiality of
information does not force a
person to keep quiet if there is some
dishonesty or irregularity in the panel.
[42] On
the back of such concession, counsel however, sought to argue that,
in this matter, the confidentiality
agreement was breached before the
evidence was tendered in the arbitration proceedings. The submission
being that the breach occurs
when the person who signed the
confidentiality agreement approaches one of the parties and inform
that party about the confidential
material. In this matter, the
proposition by counsel is that the confidentiality obligation was
breached at the time the
appellant approached a government employee,
presumably Mr Gama, and disclosed the confidential information to
him. Counsel was,
nevertheless, at great pains to indicate evidence
on record where it is stated that the appellant approached an
employee (or even
Mr Gama) and divulged the confidential information
before she tendered evidence at the arbitration.
[43] The
uncontested evidence on record is that Mr Gama, who was at the time
involved in the Nelsen arbitration
and was in possession of the
documents relating to the 2009 selection process, is the one who
approached the appellant. And, in
any event, whether the appellant
approached Mr Gama or it is Mr Gama who approached the appellant, is
beside the point. The affidavit
correctly records that the minutes
were indeed changed after the meeting as the appellant alleges in her
statement.
[44] Having
found that the evidence at arbitration established that it was common
cause that the minutes were changed,
entails that the affidavit was
not false and thus, the appellant in tendering the so called
confidential information at arbitration
did not breach the
confidentiality agreement.
Costs
[45] In
a recent judgment of the Constitutional Court in
Union
for Police Security and Corrections Organisations v South African
Custodial Management
,
[3]
the court has upheld the trite principle applicable in labour matters
that costs do not necessarily follow the successful party.
Even
though both parties argued for a costs order if successful, they have
not persuaded me that this is a matter that warrants
a costs order to
be awarded.
[46] The
appellant has, further, argued for costs orders to be awarded in her
favour at arbitration, in the court
a quo
and in respect of
the application for leave to appeal, should she be successful on
appeal. The ground for a request for such costs
orders is, according
to the appellant, a consideration of the interests of fairness and
justice. I am, however, of the view that
the principle enunciated in
Union for Police Security and Corrections Organisations,
is
apposite even in this instance.
Order
[47] Consequently,
I make the following order:
1.
The
appeal is upheld.
2.
The
order of the Labour Court in case number D1475/18 is set aside and
substituted with the following order:
2.1
The
Arbitration Award is hereby reviewed and set aside;
2.2
The
First Respondent is ordered to reinstate the Applicant to her
employment position, with retrospective effect from the date of
her
dismissal, placing her in the exact position that she would have been
in had she not been dismissed;
3.
I
make no costs order.
Kubushi
AJA
Waglay
JP and Davis JA Concur
APPEARANCES:
FOR THE
APPELLANT: S MOODLEY
Instructed
by Narain Naidoo and Associates
FOR THE RESPONDENT: DP
CRAMPTON
Instructed
by Mdledle Incorporated
[1]
See
Sidumo
and Another v Rustenburg Platinum Mines Ltd & Others
[2007] 12 BLLR 1097 (CC).
[2]
(JA89/17)
[2019] ZALAC 61
; (2019) 40 ILJ 2505 (LAC) (24 July 2019)
at para 11.
[3]
[2021]
ZACC 26; 2021 (11) BCLR 1249 (CC).