• Law Reports
  • Massmart Holdings v Reddy and Others (DA2/2020) [2022] …

Massmart Holdings v Reddy and Others (DA2/2020) [2022] ZALAC 11; [2022] 4 BLLR 337 (LAC); (2022) 43 ILJ 1297 (LAC) (18 January 2022)

82 Reportability
Labour Law
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Labour Law — Unfair dismissal — Review of arbitration award — Employee dismissed for misconduct relating to dishonesty and gross negligence — Commissioner found dismissal fair — Court a quo reviewed and set aside award, ordering retrospective reinstatement — Appellant appealed against review decision, arguing improper evaluation of evidence — Court held that the court a quo erred in its approach, failing to assess the totality of the evidence and interfering with the commissioner’s findings without justification.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an appeal in the Labour Appeal Court against a judgment of the Labour Court (the court a quo) in review proceedings under the Labour Relations Act 66 of 1995 (LRA). The appeal concerned the correctness of the Labour Court’s decision to set aside an arbitration award of the Commission for Conciliation, Mediation and Arbitration (CCMA).


The appellant was Massmart Holdings (the employer). The first respondent was Mr Marvin Vinogren Reddy (the employee). The second respondent was the CCMA commissioner, B Grant No, who issued the arbitration award. The third respondent was the CCMA.


The procedural history was that Mr Reddy was dismissed for misconduct said to involve dishonesty and gross negligence. He referred an unfair dismissal dispute to the CCMA for arbitration. The commissioner issued an award finding the dismissal procedurally and substantively fair. Mr Reddy then brought review proceedings in the Labour Court, contending that the commissioner committed a gross irregularity and reached an unreasonable outcome. The Labour Court reviewed and set aside the award with costs and ordered retrospective reinstatement. Massmart thereafter obtained leave to appeal (via petition) to the Labour Appeal Court. Mr Reddy filed a cross-appeal directed at certain factual findings in the Labour Court judgment.


The general subject-matter of the dispute was whether the commissioner’s findings that Mr Reddy had committed misconduct (dishonesty and gross negligence) were sustainable on the evidence, and whether the Labour Court was justified (on review) in interfering with the arbitration award and ordering reinstatement.


2. Material Facts


Mr Reddy was employed by Massmart at the time of his dismissal and occupied the position of audit manager. He had approximately 20 years’ service with an unblemished record, and had worked in the audit environment for about 10 years, having been promoted to audit manager in October 2016. He reported to Mr Suren Roopnarian, his line manager, and was part of an internal audit team.


A central operational task was the development of a departmental risk assessment plan, which informed the annual audit plan and budgeting. The court treated the risk assessment process as complex, involving iterative engagements, evolving templates and calibration meetings, with a final output being entered into software (Team Mate) by a deadline.


The risk assessment process was initiated by email on 3 August 2017 (from Ms Cecile Louw), setting a deadline of 30 September 2017 for completion and capture in Team Mate. Further instructions were circulated on 17 August 2017 (from Ms Nokubonga Ngidi), including a template, a process description, guidance to refer to the previous year’s worksheet, and a direction that the risk assessment worksheet be submitted to Ms Louw by 8 September 2017 after internal review. A process meeting scheduled for 25 August 2017 did not occur and was rescheduled to 28 August 2017. A further email of 4 September 2017 introduced simplified templates.


It was expected that each risk assessment manager would populate the worksheet, provide it to their line manager for review, and then submit it onward by the stipulated date. In relation to Mr Reddy, it was common cause that he did not provide the risk assessment worksheet to Mr Roopnarian before going on sick leave, and that he did not produce the “said document” at the relevant times contemplated by the disciplinary charges.


Mr Reddy had pre-arranged and was permitted to take sick leave from 29 August 2017 to 11 September 2017 for a scheduled non-emergency medical procedure on 29 August 2017. His last day at work before sick leave was 28 August 2017.


Certain facts were expressly treated as disputed, and were regarded as critical to the dispute. These included what was said at a meeting on 25 August 2017 concerning Mr Reddy’s progress (Mr Roopnarian’s version was that Mr Reddy said he was “almost done”, while Mr Reddy’s version was that he said he had “started the process”). The parties also disputed what was agreed on 28 August 2017 about when Mr Reddy would provide the worksheet (Mr Reddy asserted an understanding that he would provide it post-operation on 30 August 2017, while Mr Roopnarian asserted that Mr Reddy undertook to provide it before sick leave or on the morning of 29 August 2017).


After the surgery, Mr Roopnarian communicated with Mr Reddy via WhatsApp initially about his health, and only later began enquiring (from 3 September 2017) about whether Mr Reddy had been able to attend to the risk assessment work. Mr Reddy provided points he said he had been considering for population of the worksheet. Mr Roopnarian considered these insufficient and contended he had to start from scratch. There was evidence that upon Mr Reddy’s return from sick leave on 12 September 2017, he finalised the risk assessment work that Mr Roopnarian had started.


Following Mr Reddy’s return, Massmart investigated and convened an internal disciplinary hearing. Mr Reddy was found guilty on two charges framed broadly as dishonesty (misrepresenting progress on the risk report/work) and gross negligence (failing to meet deadlines and failing to communicate inability to meet them), and was dismissed.


3. Legal Issues


The central legal questions were whether the Labour Court was correct, on review, to set aside the commissioner’s award on the basis that the commissioner misunderstood the enquiry, mis-evaluated material evidence, and reached an outcome that was not one that a reasonable decision-maker could reach on the evidence.


More specifically, the dispute required determination of whether, on the evidence before the commissioner, the employer had proved misconduct in the form of dishonesty and gross negligence as the basis for a substantively fair dismissal, and whether the commissioner’s findings on those issues were reasonable and sustainable.


The questions were predominantly concerned with the application of law to fact within the review framework for CCMA awards, including whether material evidence was ignored or misconstrued and whether credibility and probability assessments were properly made. The Labour Appeal Court’s task, as framed in the judgment, was to decide whether the court a quo correctly evaluated the evidence that served before the commissioner in concluding that the commissioner’s decision could not reasonably be sustained.


4. Court’s Reasoning


The Labour Appeal Court approached the matter by emphasising that, under the LRA framework, a commissioner is required to determine whether misconduct was committed and then whether dismissal was fair. In doing so, the commissioner must determine whether there was a workplace rule and whether it was breached, and the fairness enquiry is not confined to what occurred at the internal disciplinary hearing.


Turning to the dishonesty charge, the court considered that the commissioner’s reasoning proceeded from the premise that because Mr Reddy did not submit the final risk assessment worksheet, it followed that he had done no work and had been dishonest when reporting that he was compiling the risk report. The Labour Appeal Court held that this reflected a misunderstanding of the nature of the task: on the evidence, the worksheet was described as the end product of a long and complex process involving meetings, changing templates and iterative calibration. On that approach, the absence of the final worksheet did not logically establish that no work had been done in the preparatory stages.


The court reasoned that the dishonesty charge, properly understood in context, was directed at whether Mr Reddy was genuinely “in the process” of compiling the worksheet rather than whether he had already completed it. The evidence of Mr Roopnarian was treated as supportive of this, in that he stated he did not expect a completed document by the earlier date and wanted at least some work reflecting progress in the process. The court viewed the commissioner’s focus on the non-production of a final worksheet as an unreasonable basis to infer dishonesty.


The Labour Appeal Court then evaluated Mr Reddy’s account of the work he said he had undertaken as part of the risk assessment process, including consultations, considering management instructions and templates, attending the meeting intended to ensure alignment, preparing a list of audit points, and referring to the previous year’s assessment. The court treated these activities as consistent with participation in a complex risk assessment process where preparatory thinking and development of inputs formed part of the work expected. It also considered it material that Mr Reddy’s evidence that it was his first time conducting such a risk assessment was undisputed, and that the process information was not provided all at once but evolved through the process.


The court further relied on evidence that Mr Reddy, upon returning from sick leave, was able to finalise the worksheet that Mr Roopnarian had started, and that there was no evidence that Mr Roopnarian had to instruct him how to do so. From this the court drew support for the conclusion that Mr Reddy must have had an understanding of the process and that his ability to finalise the document tended to support that he had done initial work before sick leave.


On the gross negligence charge, the commissioner had found fault with Mr Reddy for failing to submit the worksheet and failing to alert Mr Roopnarian that he could not meet the 30 August undertaking, requiring Mr Roopnarian to initiate follow-up communication. The Labour Appeal Court accepted that Mr Reddy’s evidence of significant post-operative complications was unchallenged, and that those complications explained his failure to complete the work during sick leave. The court reasoned that, absent challenge to the incapacity evidence, it could not reasonably be concluded that Mr Reddy acted (grossly) negligently in failing to deliver by 30 August or in not communicating earlier, given that the evidence was that his condition prevented him from working as intended.


A significant evaluative point in the court’s reasoning was that Mr Roopnarian did not cross-examine Mr Reddy after his evidence in chief. The court treated this as leaving Mr Reddy’s version on material aspects unchallenged, with the consequence that the commissioner’s adverse credibility findings against Mr Reddy were not reasonably supported. This was linked to the court’s overall conclusion that the commissioner’s approach to the evidence, including the way the enquiry was framed and the manner in which probabilities were reached, resulted in an unreasonable outcome.


In light of these considerations, the Labour Appeal Court concluded that the Labour Court was correct to review and set aside the commissioner’s award. The cross-appeal was described as seeking correction of factual errors in the Labour Court judgment, but the Labour Appeal Court considered it unnecessary to address it given the conclusion reached on the main appeal.


5. Outcome and Relief


The Labour Appeal Court dismissed the appeal, thereby leaving intact the Labour Court’s order that reviewed and set aside the arbitration award and ordered retrospective reinstatement of Mr Reddy.


No order as to costs was made in the appeal.


Cases Cited


Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); [2007] 28 ILJ 2405 (CC).


Legislation Cited


Labour Relations Act 66 of 1995, including section 185, section 191(5)(a), section 192, and section 138.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Labour Appeal Court held that the Labour Court was correct to set aside the CCMA arbitration award because the commissioner’s findings that Mr Reddy had acted dishonestly and with gross negligence were not reasonably supported on the evidence. The commissioner was found to have misunderstood the nature of the risk assessment task by treating the absence of a final worksheet as proof that no preparatory work had been done, and to have failed to account properly for unchallenged evidence relevant to Mr Reddy’s illness and incapacity following surgery. The employer’s appeal was dismissed, and no costs order was made.


LEGAL PRINCIPLES


The judgment applied the principle that, in determining the fairness of a dismissal for misconduct, a commissioner must first determine whether the misconduct relied upon by the employer was committed, which requires an assessment of whether a workplace rule existed and was breached, and that the fairness enquiry is not limited to the internal disciplinary process.


It further applied the principle that a review court may set aside an arbitration award where the commissioner misunderstands the enquiry or mis-evaluates material evidence in a manner that produces an outcome that cannot reasonably be sustained on the totality of the evidence.


The judgment also applied the evidentiary principle that where a party’s material evidence is left unchallenged (including by a decision not to cross-examine), that unchallenged version must be weighed accordingly, and adverse credibility findings that disregard such unchallenged evidence may be unreasonable.

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2022
>>
[2022] ZALAC 11
|

|

Massmart Holdings v Reddy and Others (DA2/2020) [2022] ZALAC 11; [2022] 4 BLLR 337 (LAC); (2022) 43 ILJ 1297 (LAC) (18 January 2022)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
DA2/2020
In
the matter between:
MASSMART
HOLDINGS

Appellant
and
MARVIN
VINOGREEN REDDY
First Respondent
COMMISSIONER
B GRANT NO

Second Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION

Third Respondent
Heard:
19 November 2021
Delivered:
18 January 2022
Coram:
Coppin JA, Savage AJA and Kubushi AJA
JUDGMENT
KUBUSHI
AJA
Introduction
[1]
The first respondent, Marvin Vinogren Reddy, was dismissed from the
employ of the
appellant, Massmart Holdings, for misconduct relating
to dishonesty and gross negligence. The first respondent referred the
unfair
dismissal dispute for arbitration under the auspices of the
third respondent, the Commission for Conciliation Mediation and
Arbitration,
which served before the second respondent (“the
commissioner”). In the arbitration award that was issued by the
commissioner,
the first respondent’s dismissal was found to be
procedurally and substantively fair.
[2]
The first respondent challenged the award on review on the basis that
the commissioner
committed a gross irregularity in the assessment of
the evidence before her, to the extent that she arrived at a
conclusion of
fairness that no other commissioner could have reached.
The court
a quo
reviewed and set aside the award with costs
and ordered that the first respondent be retrospectively reinstated.
[3]
Pursuant to a petition for leave to appeal granted by this court, the
appellant is
hereby appealing against the whole of the judgment and
order of the court
a
quo,
and seeks that the order of
the court
a quo
be set aside and be replaced with an order
dismissing the review application with costs. The first respondent,
has on the other
hand, filed a cross-appeal in relation to certain
factual findings in the judgment.
[4]
The appeal was decided on the papers that were filed on record,
without oral argument,
with the consent of the parties involved in
this matter.
The
factual matrix
[5]
The factual matrix on which the appeal emanates are mostly common
cause and have been
gleaned from the papers filed of record. In
brief, the facts are that: at the date and time of his dismissal, the
first respondent
was in an employment relationship with the
appellant, and held the position of an audit manager. At the time of
dismissal, the
first respondent had worked for the appellant with an
unblemished record for approximately twenty (20) years. He had
previously
worked in different other divisions of the appellant, but
when he was dismissed he had been working specifically in the audit
environment
for ten (10) years and, had recently been promoted, in
October 2016, to the role of audit manager, a position in question at
the
times material to this matter. His line manager was Mr Suren
Roopnarian (“Mr Roopnarian”), to whom he reported.
[6]
As part of his duties as an audit manager, the first respondent was
responsible, together
with his line manager and subordinates, for the
development of the department’s risk assessment plan which
would then be
used to prepare the annual audit plan for their area of
operation. He formed part of what is known as the internal audit
team.
[7]
The risk assessment plan is said to be extremely important in the
furtherance of the
appellant’s governance function, as it
determines the resources required for the next financial year and the
subsequent budget.
Consequently, it is a complex process which
requires the holding of many meetings through the entire process
until the deadline
is reached, to calibrate findings.
[8]
The risk assessment process was kick started on 3 August 2017, by Ms
Cecile Louw (“Ms
Louw”), Massmart’s Audit Market
Leverage Manager, in an email circulated to a number of employees,
including the first
respondent and Mr Roopnarian, indicating that the
risk assessment was to be completed, and entered into the software
program, Team
Mate, by 30 September 2017.
[9]
Further details of the process were furnished on 17 August 2017 by Ms
Nokubonga Ngidi
(“Ms Ngidi”), the first respondent’s
Senior Internal Audit Manager, in an email transmitted to a number of
people
including the first respondent and Mr Roopnarian. The email
provided recipients with a template of the risk assessment to ensure

consistency and informed recipients of the steps to be followed in
the risk assessment and audit planning process, the first of
which
was to complete the risk assessment worksheet (attached to the email)
and to discuss same with their respective senior managers.
She also
advised the recipients that as a starting point they can refer to the
previous year’s risk assessment worksheet.
The recipients were
further advised that the risk assessment worksheet was to be
submitted to Ms Louw by 8 September 2017; and
that a meeting would be
scheduled for 25 August 2017 for the parties to go through the
process and ensure that they are all in
alignment and have the same
understanding of the process. This meeting did not materialise and
was rescheduled to 28 August 2017.
[10]
On 25 August 2017, the first respondent and Mr Roopnarian, held a
brief meeting between them, to discuss
the first respondent’s
progress with the risk assessment. The details of what transpired at
that meeting are in dispute and
forms a critical subject matter of
this appeal. Mr Roopnarian contends that the first respondent
informed him that he was”
almost done” with the risk
assessment worksheet, whereas the first respondent’s version
was that he informed Mr Roopnarian
that he had “started the
process”.
[11]
Ms Ngidi sent a further email on 4 September 2017, to several audit
managers, including the first respondent
and Mr Roopnarian, which
introduced simplified risk assessment templates to be used by the
managers to finalise their risk assessment.
[12]
In accordance with the above process, it was expected of each of the
risk assessment managers to populate
the risk assessment worksheet
and to submit same to their respective line managers, for review and
finally for submission to Ms
Louw by 8 September 2017. Like all the
other managers, it was expected of the first respondent to populate
the risk assessment
worksheet and to timeously hand it to his line
manager, Mr Roopnarian for review before submitting same to Ms Louw
by 8 September
2017.
[13]
In the meanwhile, the first respondent had earlier on, made
arrangements and was given permission to
take sick leave from 29
August 2017 until 11 September 2017 to undergo a scheduled
non-emergency medical procedure on 29 August
2017. The first
respondent’s last day at work was 28 August 2017.
[14]
It appears that the first respondent and Mr Roopnarian held another
meeting between them on 28 August
2017, the details of which are also
in dispute. The first respondent’s testimony is that there was
an understanding at that
meeting that he would provide the risk
assessment worksheet post-operation, on 30 August 2017; whereas Mr
Roopnarian’s evidence
is that the understanding was that the
first respondent was to provide the worksheet on the day before he
went on sick leave and
being unable to do so he undertook to provide
same in the morning of 29 August 2017, which he, also, failed to do.
[15]
In terms of the charge sheet preferred against the first respondent,
the deadline for the first respondent
to hand in the risk assessment
worksheet to Mr Roopnarian is stated as 28 August 2017 and 30 August
2017. Thus, when the first
respondent went on sick leave, that is on
28 August 2017, he had not provided Mr Roopnarian with the risk
assessment worksheet.
The first respondent’s version, as
earlier stated, is that he had undertaken to provide the risk
assessment worksheet after
his operation which would be 30 August
2017. However, this did not materialise as after the procedure, the
first respondent was
not fit enough to undertake the work.
[16]
Immediately after the surgery, Mr Roopnarian contacted the first
respondent via WhatsApp several times
enquiring about his health,
nothing work related was mentioned. It was only on 3 September 2017
that Mr Roopnarian started making
enquiries about whether the first
respondent had been able to attend to the risk assessment worksheet
and found that the first
respondent had not started with it. The
first respondent provided Mr Roopnarian with points which the first
respondent had been
considering and which he contended, he would have
used in populating the risk assessment worksheet. Mr Roopnarian’s
evidence,
however, is that the points provided were inadequate to
enable proper compilation of the risk assessment worksheet and that
he
had to start the work from scratch. It is alleged that the first
respondent returned from sick leave on 12 September 2017 and
finalised
the risk assessment that Mr Roopnarian had started working
on in his absence.
[17]
On his return to work, the first respondent was investigated for
misconduct and was eventually subjected
to internal disciplinary
hearing where he was found guilty of two acts of misconduct with
which he was charged and then dismissed.
Arguments
[18]
The gravamen of the appellant’s complaint in this court is that
in coming to the decision the
court
a quo
reached, it
considered the first respondent’s evidence before the
commissioner in a fragmented and piecemeal approach, such
that its
decision essentially resulted in a rehearing of evidence rather than
the broad-based evaluation of the totality of the
evidence. According
to the appellant, permitting the court
a quo
to approach the
review in this manner defeated the review process and resulted, in
effect, in a determination of whether the commissioner’s

decision was wrong, rather than whether it impacted on the overall
reasonableness of the decision. Thus, it was argued on behalf
of the
appellant that the court
a quo
’s decision resulted in an
interference with the factual findings of the commissioner without a
clear indication of why the
commissioner’s findings cannot
reasonably be sustained on a full conspectus of the evidence.
[19]
Conversely, it is submitted on behalf of the first respondent that
the court
a quo
was correct in its finding because the
commissioner failed to understand the essential question before her,
misevaluated facts,
failed to consider material evidence entirely and
adopted a probability test before even evaluating all the evidence.
The first
respondent contended that the commissioner simply listened
to the two stories (which apparently she cajoled out of the
witnesses)
and came to the conclusions as to what probably happened,
without considering facts and evidence that were available to her in
the bundles of documents and the testimony of the witnesses.
According to the first respondent, a reasonable commissioner would

have evaluated all the evidence and only then applied the probability
test.
[20]
This court, has therefore, to determine whether the court
a quo
correctly evaluated the evidence that was before the commissioner to
have reached the decision the appellant is attacking.
The
applicable law
[21]
The Constitutional Court in
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
,
[1]
whereat the court held, at paras 58 and 59 thereof, that:
‘
58.
Section 185 of the LRA provides that every employee has the right not
to be unfairly dismissed
and subjected to unfair labour practices.
Where an employee claims that he or she has been unfairly dismissed,
the dismissal dispute
is submitted to compulsory arbitration in terms
of section 191(5)(a), either before the CCMA, or a bargaining
council. On the other
hand, section 192 of the LRA, under the
title
Onus in dismissal disputes
, provides that once an
employee establishes the existence of the dismissal, the employer
must prove that the dismissal is fair.
59.
The statutory scheme requires a commissioner to determine whether a
disputed dismissal was
fair. In terms of section 138 of the LRA, a
commissioner should do so fairly and quickly. First, he or she has to
determine whether
or not misconduct was committed on which the
employer’s decision to dismiss was based. This involves an
inquiry into
whether there was a workplace rule in existence and
whether the employee breached that rule. This is a conventional
process of
factual adjudication in which the commissioner makes a
determination on the issue of misconduct. This determination and the
assessment
of fairness, which will be discussed later, is not limited
to what occurred at the internal disciplinary inquiry.’
Discussion
[22]
It is self-evident from the above quote that in order for the
commissioner to determine the fairness
of the dismissal she first has
to determine whether a misconduct on which the employer’s
decision to dismiss was based, was
committed.
[23]
In this matter, the first respondent was found guilty of the
following misconduct:
i)
Charge 1: in that the first respondent acted dishonestly, in that he
advised
Mr Roopnarian on more than one occasion during the period 26
August 2017 to 3 September 2017 that he was in the process of
compiling
the risk report notwithstanding the fact that he had not
done any work in respect of the risk report.
ii)
Charge 2: in that the first respondent acted in a grossly negligent
manner and/or
acted in dereliction of his duty in that he failed to
meet the agreed upon deadline (28 and 30 August 2017) for the
submission
of the risk report; failed to communicate to Mr Roopnarian
that he would not meet the agreed upon deadlines; and in fact follow

up conversations regarding the risk report and his failure to meet
the deadlines had to be initiated by Mr Roopnarian.
[24]
It is common cause that the first respondent
was
dismissed for misconduct relating to dishonesty and gross negligence.
It was, therefore important that the commissioner makes
a finding
that the employer had proven dishonesty and gross negligence in order
to come to a finding that the dismissal was fair.
[25]
It is common cause that both charges on which the first respondent
was found guilty of, involved the
failure to produce a document which
he had allegedly promised. It is also not in dispute that the first
respondent never produced
the said document.
The
misconduct based on dishonesty
[26]
In respect of the charge based on dishonesty, the issue was that the
first respondent advised Mr Roopnarian
that he was compiling the risk
report when in fact he did not do any work in respect of the said
report.
[27]
The commissioner made a finding that the first respondent acted
dishonestly based on his evidence that
when Mr Roopnarian enquired
about the progress of the report, the first respondent indicated that
he was working on it, whereas
in fact he was not doing so. The
commissioner based her finding that no work has been done by the
first respondent on the fact
that there was no risk assessment
worksheet submitted or completed by the first respondent on which Mr
Roopnarian would have been
able to complete the work on.
[28]
It is my view, that the commissioner misunderstood the question
before her and incorrectly evaluated
the evidence, which resulted in
her coming to an unreasonable finding.
[29]
What, in my view, the commissioner failed to understand is that the
risk assessment worksheet was the
final document to be produced after
a long and complex process. The process required consultations,
meetings with client businesses,
receiving instructions on how to
proceed for the year under consideration and receiving templates that
would guide the process
so that everyone was in alignment. This was
explained in detail by Mr Roopnarian in his evidence in chief when he
stated the following:
‘
Every
auditor understands the starting behind audit plan is a risk
assessment and there is a detailed process around that. Because
of it
being complex the process is an inter-written one so while the
template is sent out there are meetings held consistently
about where
we are, our thoughts, change in templates until we get to the
deadline. So, Mr Reddy [the first respondent] is quite
right in that
there have been meetings that has been held subsequent to the initial
instruction; there has been a change in templates,
there has been
further confirmation of what needs to be done. But again, it is part
of the process as each one goes through their
own risk assessment in
the division to be able to say what about this, what about that and
we meet again and we calibrate and we
discuss and we get to the
point.’
[30]
The risk assessment worksheet, therefore, was the end product of all
these interactions. The first
respondent had to go through all this
process before he could write the risk report.
[31]
The commissioner’s finding that the first respondent did not do
any work because he did not provide
Mr Roopnarian with the final
product, that is, the risk assessment worksheet, is, in my view,
unreasonable. Contrary to the finding
of the commissioner, from the
perusal of the charge sheet coupled with evidence on record, the risk
assessment worksheet was not
the work that the first respondent was
supposed to show as an indication that he has not been honest. What
was expected of the
first respondent, as charge 1 indicated, was to
show that he had been in the process of compiling the worksheet and
not that he
had already completed compiling the risk assessment
worksheet.
[32]
Having understood the evidence, particularly that of Mr Roopnarian,
being in the process of compiling
the risk assessment worksheet would
not necessarily be the physical completion thereof. Mr Roopnarian
explained it in his closing
argument when he remarked as follows:
‘
At
no stage did I ever expect a completed risk assessment document from
Mr Reddy by 28
th
. I expected some work being done. Yes, by
[my] WhatsApp confirmed if any work had been done by the 28
th
.
I think the risk assessment process ought to have been subject today
(sic!) it is very, very time consuming, it requires deep
thoughts. .
.’
[34]
It is also apparent from this statement that it was not the final
document, that is, the risk assessment
worksheet, that Mr Roopnarian
was aggrieved about, but the work preceding the completion of the
worksheet. In answer to a question
put to him by the first
respondent, Mr Roopnarian answered “
I have never asked for a
completed product, give me what you have done at least.
”
[35]
The question, therefore, is whether the first respondent did not do
this work. In my view, he did.
[36]
It is the first respondent’s testimony that in doing the work
that was required pre-completion
of the risk assessment worksheet, he
consulted with one of the audit managers who took him through the
process for clarification
and how he should go about with it; he
considered the information provided by the leverage manager; he
attended the meeting of
28 August 2017 to get more clarity and to
ensure that he gets to the correct output and to make sure to that he
was in alignment
with how the risk assessment was to be developed; he
had created a list of audit points which he intended to utilise in
completing
the risk assessment worksheet and considered the previous
years’ assessment report. His testimony is that he had gone
through
the process itself and understood the risk areas that
required to be changed. The only thing that was outstanding,
according to
him, was to physically change the ratings on the
template, which he would have done post-operation. This is the work
that the commissioner
should have sought to establish, instead of
finding out whether the risk assessment worksheet had been completed
or not.
[37]
As earlier stated, the risk assessment process is said to be complex,
and it is not in dispute that
it was for the first time that the
first respondent participated in the process. However, when assessing
the evidence before her,
the commissioner failed to consider the
first respondent’s undisputed evidence that it was the first
risk assessment that
he had done. The first respondent testified that
‘
for somebody who
is doing it for the first time, surely the process warrants you to,
in order to be professional and to execute
it to a point where you
can deliver something of quality you have to go through the process
in its entirety to understand it and
then be able to execute the task
at hand.’
[38]
This evidence is material in the sense that the information required
to complete the risk assessment
was not provided all at once. The
process that the first respondent had to go through is explained
clearly by the appellant’s
witness, Mr Roopnarian, in his
testimony as quoted in paragraph 29 of this judgment.
[39]
The fact that the employee mulled over the issues or could have had
rough sketches to work on and then
gather information as soon as he
could so that when the deadline came, he and the line manager were
able to then form together
one document in the form of the risk
assessment worksheet, could not, in my view, be faulted.
[40]
In addition, it is common cause that the first respondent provided Mr
Roopnarian with a list of factors
which he said were his thoughts
which he was going to use when he populates the risk assessment
worksheet. Mr Roopnarian also confirmed,
as indicated above, that
“
while the template is sent out there are meetings held
consistently about where we are, our thoughts, change in templates
until
we get to the deadline.
” Thus, thinking through the
process is one of the work that is expected of a manager to do in the
process of coming up with
the risk assessment worksheet. I, as a
result, do not see why the first respondent should be faulted for
that.
[41]
Furthermore, there is unchallenged evidence on record that on his
return from sick leave, the first
respondent completed the risk
assessment worksheet on which Mr Roopnarian has started working on,
and submitted it to Ms Louw.
If the first respondent was able to
finalise the worksheet on his return from sick leave, it goes without
saying that he had done
some initial work before he went on sick
leave. There is no evidence on record that indicates that Mr
Roopnarian showed him how
to finalise the worksheet.
[42]
Over and above what is stated, the evidence of the first respondent
that on 28 August 2017, in a discussion
with Mr Roopnarian, there was
an understanding that the document will be provided post-operation,
which was 30 August 2017, was
not challenged. In his closing argument
before the commissioner, Mr Roopnarian, as earlier indicated,
remarked that he at no stage
expected a completed risk assessment
document from the first respondent by 28 August 2017.
[43]
This remark by Mr Roopnarian, is a clear indication that it was
expected by both the first respondent
and Mr Roopnarian that the work
will be finalised post-operation, during the sick leave.
Misconduct
based on gross negligence
[44]
The commissioner further made a finding that the first respondent had
acted grossly negligent when
he failed to submit a worksheet with the
risk assessment and failed to inform Mr Roopnarian that he was unable
to meet the deadline
when he realised on 30 August 2017 that he was
still not feeling well. He also did not make any effort to contact Mr
Roopnarian
as the only way Mr Roopnarian became aware that no
physical work has been done was on 3 September 2017, when Mr
Roopnarian once
again contacted the first respondent via WhatsApp.
[45]
It was the first respondent’s version that he had undertaken to
provide Mr Roopnarian with the
completed risk assessment worksheet on
30 August 2017. As earlier stated, Mr Roopnarian as well expected the
finished product post-operation.
This is common cause.
[46]
However, the first respondent submitted, correctly so in my view,
that it could not be said that he
acted either grossly negligently or
negligently by not informing Mr Roopnarian that he (the first
respondent) would not be able
to complete the work as undertaken,
because he was not well after the operation.  This he contended
was so, due to the fact
that his testimony that he could not complete
the work on 30 August 2017 because he was incapacitated owing to
post-operative complications,
was not challenged by the appellant.
[47]
The evidence on record is that after the operation, the first
respondent’s state of mind was
not well, he was not sleeping,
he was not eating and was excessively bleeding. He was constantly
having issues and not able to
do work. None of this evidence is in
dispute.
[48]
It is my view that had the first respondent not experienced
post-operative complications, it is possible
that he would have been
able to work on the risk assessment and completed the worksheet. On
his own version, which is not contested,
the first respondent was
fully prepared to work during his sick leave and Mr Roopnarian was
aware about that. It, however, became
impossible for him to do so
given the severity of his post-operative problems. His ability to
finalise the risk assessment worksheet
on his return to work after
the sick leave gives credence to his argument that he had gone
through the process and would have been
able to complete the risk
assessment worksheet by 30 August 2017.
[49]
It should be remembered that after the first respondent’s
evidence in chief, Mr Roopnarian opted
not to cross-examine him.
Consequently, all the evidence tendered by the first respondent,
which is unchallenged, should be accepted
when considered against
that of Mr Roopnarian. As a result, the commissioner’s
credibility findings against the first respondent
are unreasonable.
Cross-appeal
[50]
The cross-appeal was only an attempt by the first respondent to
correct certain factual errors on the
part of the court
a quo
.
However, because of the decision I came to in respect of the appeal,
I find it not necessary to deal with.
[51]
In my view, the court
a quo
was correct to have reviewed and
set aside the findings of the commissioner, as it did. There is no
basis therefore to interfere
with the decision taken by the court
a
quo
and accordingly the appeal is dismissed. There is no order as
to costs.
Kubushi
AJA
Coppin
JA and Savage AJA concur.
APPEARANCES:
FOR
THE APPELLANT:

P Maharaj-Pillay
Instructed by Webber
Wentzel
FOR
THE FIRST RESPONDENT:
S Moodley
Instructed by Narain
Naidoo and Associates
[1]
2008 (2) SA 24
(CC); [2007] 28 ILJ 2405 (CC).

Back to Law Reports