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[2024] ZALCJHB 89
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Moodley-Veera v Commission for Conciliation, Mediation, and Arbitration and Others (JR 1200/2020) [2024] ZALCJHB 89 (22 February 2024)
FLYNOTES:
LABOUR – Dismissal – Misconduct –
Misrepresentation –
Arbitrator
finding dismissal fair – Alleges conduct did not attract
sanction of dismissal – Reasonableness test
–
Assessment of evidence – Findings not disconnected from
evidence – Employee did not agree with policies
and ignored
them – Attitude displays no remorse – Meritless
grounds of review – Unsubstantiated bias claims
–
Findings fall within band of reasonableness based on evidence
presented – Application dismissed.
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1200/2020
In
the matter between:
DEVOSHUM
MOODLEY-VEERA
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
ELSABE HARMSE
N.O Second
Respondent
GOVERNMENT
EMPLOYEES
MEDICAL
SCHEME
Third
Respondent
Heard:
7 September 2023
Delivered:
22 February 2024
This
judgment was handed down electronically by consent of the parties’
representatives by circulation to them via email.
The date for
hand-down is deemed to be on 22 February 2024.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The Third Respondent (Respondent or GEMS) employed the Applicant in
May 2019 as Senior Manager: Internal Forensic Investigation,
whose
position falls within the Respondent’s internal audit unit. She
was suspended on 18 November 2019, pending an investigation
into
allegations of misconduct and on 29 January 2020, the Applicant
received a notice to attend a disciplinary hearing scheduled
for 10
February 2020.
[2]
The Respondent proposed
that a process as envisaged in section 188A of the Labour Relations
Act
[1]
(LRA) be followed, to
which the Applicant agreed and the Second Respondent (arbitrator) was
appointed to conduct the inquiry into
the allegations of misconduct.
[3]
The section 188A inquiry commenced on 12 March 2020 and was concluded
on 30 June 2020. It was held over 15 days during
the period from
March to June 2020. The Respondent called five witnesses and the
Applicant testified.
[4]
The charges levelled against the Applicant were as follows:
‘
FIRST
ALLEGATION OF MISCONDUCT:
i.
During August 2019 and / or during September 2019 you have
allegedly unilaterally decided to refer a matter in relation to fraud
and corruption of an erstwhile Executive of GEMS (that was an ongoing
investigation in the HAWKS office under reference number
CAS
244/04/2018) to the Special Investigations Unit ("SIU")
after it was specifically agreed between you and your direct
line-manager, the Chief Audit Executive ("CAE"), Mr. Molapo
Masekoameng ("your line-manager"), that you should
deal
directly with the HAWKS as it related to this matter.
ii.
Your above-mentioned engagement with the SIU was not
communicated to or authorized by your line-manager. Your actions in
this regard
caused embarrassment to your line-manager when he was
surprised to learn of the SIU's involvement in the matter during a
telephone
call with Colonel Thabo Motedi, especially because during
the meeting held with you, Colonel Thabo Motedi and the CAE on 23
August
2019, you were instructed thereafter to write to Col Motedi's
direct head to obtain information on why there was no progress on
the
matter which you did not do, and instead directed the matter to the
SIU without obtaining consent from your line manager first.
iii.
The telephone call held between Colonel Thabo Motedi and your
line-manager was made in your presence.
iv.
You persisted with communication and / or engagement with the SIU
(only) after your line-manager specifically instructed
you to write a
letter to the HAWKS and to copy the SIU in the e-mail.
v.
Your e-mail, dated 10 September 2019 to your line-manager,
illustrates that you defied his instructions and decisions by
continuing
to engage with the SIU contrary to an agreed approach on
the matter made on 23 August 2019. You have failed to involve your
line-manager
in an important matter where a reporting line exists.
vi.
Your alleged conduct displays disregard for your
line-manager’s authority over you and the official matters
assigned to you.
vii.
Your alleged misconduct caused reputational harm to the
employer in that the HAWKS was already engaged in the above matter
through
Colonel Thabo Motedi.
viii.
Your conduct caused the employment relationship to deteriorate
and breached the trust relationship.
SECOND
ALLEGATION OF MISCONDUCT:
i.
On 26 August 2019 you were requested in an e-mail from the Senior
Manager: Compliance & Ethics to sit as a panellist
in internal
interviews for the position of Ethics Specialist.
ii.
You requested via an email to your line-manager whether it would be
appropriate for you to be part of the interviewing
panel.
iii.
You displayed insolent behaviour and disregard for your line
manager's instruction, by confirming availability for the
interviews,
before obtaining a response from your-line manager;
iv.
Your actions in this regard seriously undermined the authority of
your line-manager and is an example of how you regularly
make
decisions outside your scope of work without the involvement of your
line-manager. Your actions further constitute insolent
behaviour
towards your line-manager, Mr Masekoameng.
v.
When your line-manager, Mr. Masekoameng, responded to your e-mail, he
confirmed that you should exclude yourself from becoming
involved
with the recruitment in another division that falls outside of your
job responsibilities.
THIRD
ALLEGATION OF MISCONDUCT:
i.
It is further alleged that on numerous instances during the course of
your employment, more specifically from July 2019
to October 2019,
you disregarded the authority of your line-manager and directly
communicated / raised issues with the Audit Committee
Chairperson
and/or the Institute of Internal Auditors of SA ("IIASA")
whereas you are required to follow internal escalation
processes.
Your alleged conduct caused a deterioration in the employment
relationship and an irretrievable breakdown in the trust
relationship.
ii.
On 19 August 2019, you received a clear instruction from your
line-manager, Mr. Masekoameng, not to involve yourself with the
External
Quality Assurance Review interviews and as expressed to you,
in the introduction meeting with the service provider of the External
Quality Assurance Review ("EQAR") by your line manager,
that you are responsible for Internal Forensic (Fraud) Investigations
and thus played no role in the audit work under review. Despite this
clear instruction and you being reasonably aware that you
had no role
in the Internal Audit Function of GEMS, you inserted yourself and you
involved yourself with the said EQAR interviews
by contacting the
reviewer/s of the Institute of Internal Auditors ("IIA SA").
iii.
In your e-mail dated 29 August 2019 and sent to Mr. Joe Lesejane
("the Audit Committee Chairperson") you wrote
and confirmed
the abovementioned: “...
l held a meeting with the EQAR lady
last week as I pushed my way into being interviewed...”
iv.
As a result of your alleged conduct, you ignored your line-manager's
instruction/ decision and exceeded your authority.
v.
In allegedly perpetrating the abovementioned misconduct you displayed
disrespect to your line-manager and his official
decision in this
regard.
vi.
Your alleged conduct evinces distrust in your line-manager and
ultimately your employer.
FOURTH
ALLEGATION OF MISCONDUCT:
i.
It is further alleged that on numerous instances during the
course of your employment, more specifically from July 2019 to
October
2019, you disregarded the authority of your line-manager and
directly communicated / raised issues with the Audit Committee
Chairperson
and/or the Institute of Internal Auditors of SA ("IIASA")
whereas you are required to follow internal escalation processes.
Your alleged conduct caused a deterioration in the employment
relationship and an irretrievable breakdown in the trust
relationship.
ii.
You wrote in an e-mail on 29 August 2019 to the Audit
Committee Chairperson,
inter alia
the following
"...l
was motivated and had a sense of an idea that my opinion of the work
of internal audit was either "does not comply"
or
"partially conforms" with the IIA standards...",
iii.
"...
l know Molapo will not provide me with the
report...";
and
iv.
“
...My personal view is that there was a deliberate
attempt to procure the services of the llASA for the EQAR...I have
not approached
Molapo on this matter and I know that this will not be
a positive outcome...l am not comfortable with a number of dealings
that
are currently occurring.”
v.
The content of your e-mail of 29 August 2019 and
inter alia
the above statements made therein to the Audit Committee Chairperson
constitute speculation, opinions and questioning of the decisions
and
processes of GEMS and do not amount to facts.
vi.
Your alleged misconduct in this regard are aimed at sowing discord in
the workplace, tarnishing your line-manager's good
reputation and
caused distrust within the workplace.
FIFTH
ALLEGATION OF MISCONDUCT:
i.
On 10 September 2019, you have misrepresented your position
within GEMS in an e-mail to Mr. Charles Net, the Acting Chief
Executive
Officer of the Institute of Internal Auditors of South
Africa ("IIASA") by stating that you are a Senior Manager
for
“
Auditing..."
and that you are an
"internal auditor"
whilst you are appointed as a
Senior Manager for Internal Forensic Investigations within the Audit
Unit.
ii.
You have made this misrepresentation to Mr. Nel after he
enquired into your authority to request reasons for the
"Generally
Conforms"
outcome of the EQAR as well as other information
pertaining to the EQAR-process.
iii.
Your alleged misconduct in this regard is viewed as gross
dishonesty.
SIXTH
ALLEGATION OF MISCONDUCT:
i.
Your e-mail communication addressed to employees of IIA SA, namely
Unathi Mnyimba and Mr. Charles Nel on 28 and 29 August
2019 as well
as 10 September 2019 constitutes serious misconduct in that you
brought the Employer's name into disrepute by stating,
without a
factual basis, that “
the Internal Audit unit, the unit would
not have achieved a "GC" (Generally Conforms) however a
"PC' (Partially Conforms)”
as well as
"there
is a motive on why the organization was driving for a “GC”…”
ii.
By sending the abovementioned e-mails, you did not act in the best
interest of your Employer and displayed total disregard
for the
Employer's internal procedures and investigations undertaken by the
Principal Officer and the Audit Committee at the time
in respect of
the EQAR-process.
ii.
Your conduct further shows your defiance of your line-manager
(the Chief Audit Executive ("CAE"), Mr. Molapo
Masekoameng),
in that you should have raised the issues with him
first in terms of the Employer's line of authority. Your actions also
caused
your line-manager extreme embarrassment as evinced from the
e-mail from Mr. Nel, dated 10 September 2019.
iii.
You have raised concerns in respect of the EQAR without
providing a factual basis therefor and requested reasons for the EQAR
finding
without having the necessary authority to do so.
SEVENTH
ALLEGATION OF MISCONDUCT:
i.
Your "complaint" to IIA SA relating to
"Official
EQAR procedures not followed..."
on or about 11 September
2019 has reference. In your "complaint", you have allegedly
committed gross misconduct by accusing
your line-manager,
inter
alia
of being unethical, unprofessional, acting with
"personal
gain"
and having an ulterior motive” in reference to
the EQAR-matter.
ii.
Your allegations against Mr Masekoameng in the abovementioned
"complaint" were made maliciously and the intent to
discredit
your line-manager.
iii.
The complaints raised by you to the IIA SA are based on
your own opinion and suspicion and not on facts. Your conduct in this
regard seriously damaged the trust relationship between yourself and
your employer, especially because you published your complaints
within GEMS.
EIGHTH
ALLEGATION OF MISCONDUCT:
i.
During October 2019, you leaked confidential information to
fellow employees in respect of a whistleblowing complaint and
subsequent
internal investigation (and /or assessment) in respect of
alleged fraudulent qualifications of certain executives,
inter
alia
Dr Sam Lewatle.
ii.
You improperly, unprofessionally and contrary to your
employer's policy and procedure, disclosed the identities of the
persons (Drs.
Moloabi and Lewatle) implicated in a whistleblowing
complaint (and who may be investigated or are assessed to be
investigated)
to fellow employees.
iii.
Moreover, you have falsely accused and spread the rumours that
Dr Lewatle has been receiving an illegal performance salary bonus
based on a fraudulent PHD-qualification.
iv.
Your abovementioned leak of confidential information and false
claims resulted in bald accusations and rumours of fraud amongst
fellow employees, spread by you, in respect of
inter alia
Dr
Sam Lewatle, Executive Corporate Services ("Lewatle").
v.
Your alleged conduct in this regard is defamatory and caused
reputational and emotional harm to Dr Lewatle and has the potential
of financial risk and disrepute to your employer.
vi.
In allegedly committing the abovementioned misconduct, you
have improperly insinuated the guilt of the person under
investigation
and prematurely expressed wrongdoing on the part of Dr
Lewatle, before a proper process was concluded to determine his
guilt.
vii.
In the premises, you failed to protect the integrity of the
forensic investigation function, failed to follow the employer's
policy
and procedures and caused a serious breach in the trust
relationship with your employer.
NINTH
ALLEGATION OF MISCONDUCT:
i.
On 16 October 2019 you displayed a total disregard for the
Employer's internal policies, procedures and protocol by sending an
e-mail,
dated 16 October 2019, to Ms. Jeannie Combrink (and copied
Mr. Yashwin Singh therein) and affirming your relationship issue with
your line-manager, Mr. Molapo Masekoameng, by questioning his
decision to exclude your attendance at the Audit Committee meeting
to
be held on 17 October 2019.
ii.
In the aforesaid e-mail, you also complain about Mr
Masekoameng allegedly
"hindering"
your performance.
iii.
In the aforesaid e-mail you intimate that Mr Masekoameng is
hiding
"governance issues"
and accuse him of being
responsible for certain
"governance issues".
iv.
Your conduct in this regard illustrates defiance, disrespect
and distrust towards your line-manager and his authority.
v.
You should have raised the relevant complaints and / or issues
against your line-manager in terms of the Employer's applicable
Employee
Relations Policy of which you are fully aware.
vi.
You deliberately sent the aforesaid e-mail, under the guise of
seeking
"guidance"
, to discredit and create
suspicion about your line-manager with fellow employees.
vii.
You have also improperly attached correspondence from Mr
Masekoameng addressed to you (only) to the abovementioned e-mail.
viii.
Your alleged conduct in this regard illustrates that you do
not trust your employer.
TENTH
ALLEGATION OF MISCONDUCT:
i.
As a result of your disgruntlement with your line-manager's decision
to exclude your presence from the Internal Audit Committee
meeting on
17 October 2019, as well as the history of your distrust in your
line-manager, you went on a frolic of your own and
trumped-up
accusations / complaints against your line manager, Mr. Masekoameng
in an e-mail addressed to Audit Committee Chairperson,
Mr. Joe
Lesejane, as well as Ms. Carolynn Chalmers, dated 16 October 2019,
inter alia
as follows:
(a)
You falsely accused Mr. Masekoameng of
"drastically”
changing the contents of the Internal Forensic Investigations Charter
“
...to avoid
proper protocols."
,
(b)
You falsely accused Mr. Masekoameng of acting unethically and
being biased by protecting three (3) GEMS Executives from being
investigated
by stating: “
..l am sure the CAE will not
provide you with the allegations /tip-offs that were reported through
the whistleblowing hotline as
these allegations deal with three (3)
Gems Executives..."
(c)
You falsely accused Mr. Masekoameng of making irregular
changes to the GEMS Audit Committee Charters
"...relating to
protocol and reporting etc. which is not aligned to the IIA
standards."
It is specifically recorded that you failed to
elaborate on what specific Institute of Internal Audit of SA
standards and/or compliance
is lacking, rendering your accusation
without reasonable basis;
ii.
Based on your own
"concerns"
(suspicions) and
without any factual and / or reasonable basis you cautioned the Audit
Committee against your line-manager's decisions
and reasoning in
respect of changes he had made to the GEMS Audit Committee Charters.
iii.
Your alleged "whistleblowing disclosure" of 16
October 2019 was made maliciously, in bad faith, without reasonable
substance,
constitute speculation, opinions and questioning of the
decisions and processes of GEMS and do not amount to facts.
iv.
Your words,
"...please find below my concerns that I
would have voiced in the Audit Committee should I have been given the
opportunity
to attend...",
contained in the abovementioned
e-mail confirms your insolent / insubordinate [behaviour] in that you
were specifically instructed
by Masekoameng not to prematurely
disclose investigations.
v.
You raised the issue of "whistleblowing" as an
afterthought.
vi.
Your alleged misconduct in this regard are aimed at sowing
discord in the workplace, tarnishing your line-manager's good
reputation
and caused an irretrievable breakdown in the trust
relationship with your employer.
SUMMARY:
In
allegedly perpetrating the above misconduct you have,
inter alia
:
A.
Breached clauses 1.3.2 and/or; 1.3.2.1; and/or 1.3.2.2; and/or
1.3.2.3; and/or 1.3.2.6; and/or 1.3.2.7 of your employment contract,
in respect of the performance and execution of your duties and
functions as a GEMS-employee and in your capacity as Senior Manager:
Internal Forensic Investigation Officer.
B.
Further breached clause 7 of your employment contract relating
to confidentiality and non-disclosure of GEMS information.
C.
Contravened your duty of good faith as envisaged in clause
11.1 of employment contract.
D.
Acted in contravention of, inter alia clauses Cl, C3, C4 and
C5 of the GEMS: Employee Code of Conduct.
E.
Acted contrary to the GEMS Whistleblowing Policy, 2019.
F.
Caused an irretrievable breakdown in the trust relationship
between yourself and your employer. Your alleged misconduct set out
in the above allegations sowed discord in the workplace and tarnished
or potentially tarnished your line-manager's good reputation.’
[5]
The arbitrator found that the Applicant contravened the Respondent’s
rules and that she was guilty of the misconduct
she was charged with
and the Applicant was dismissed. The Applicant seeks to review and
set aside the award so issued and she seeks
that the award be
substituted with an order that she did not commit the misconduct she
was charged with and that she be reinstated
retrospectively,
alternatively for the matter to be remitted for a hearing
de novo
.
[6]
The Third Respondent opposed the application for review.
The
evidence adduced
[7]
In order to assess the arbitrator’s findings and
the grounds
for review raised by the Applicant, it is necessary to consider the
evidence adduced at the section 188A inquiry.
The
Respondent’s case
[8]
The Respondent’s first witness, Mr Masekoameng, testified that
he is employed as the Respondent’s chief audit
executive (CAE),
based in the internal audit department. The internal audit and the
forensic investigations units report to him.
He explained that the
Applicant’s responsibilities were internal forensic
investigation and she did not form part of or perform
any auditing
work. She was the senior manager of the forensic investigation unit
and she was responsible for assisting the CAE
in the execution of his
mandate as it related to the actioning of whistleblower tip-offs and
any other investigation work to be
done, which came from either a
director, the principal officer, the audit committee or the board.
The Applicant did not report
to the audit committee and in terms of
her employment contract, she reported to the CAE or a person
designated for this purpose.
[9]
The Applicant was responsible for
inter alia
the development
of policies and procedures; overseeing and conducting investigations
of fraud and financial abuse; preparing investigation
reports and
communicating such reports through the relevant channels; and
recommending corrective action relating to internal control
failures.
She would interact with operational management, other investigators
and law enforcement agencies to communicate investigative
findings
and to ensure that prompt and appropriate action is taken in response
to reports of alleged fraud.
[10]
Mr Masekoameng explained that it was clear from the advertisement for
the position of Senior Manager: Internal Forensic
Investigations, the
Applicant’s contract of employment and her job description that
she was not responsible for the duties
relating to an audit function.
He disputed the Applicant’s version that she was responsible
for providing leadership to the
internal audit function and the
internal auditors, that she provided expert guidance on internal
audit matters and forensic investigations,
that she was part of the
internal audit function, attended audit committee meetings and board
meetings to discuss pertinent matter
relating to forensics and audit
and that she had unrestricted access to the board and the audit
committee. The CAE made it clear
that the Applicant had no audit
function and that he was the one to attend audit committee meetings
and to report to the said committee.
He has the discretion to invite
an official who was not
ex officio
entitled to attend an audit
committee meeting.
[11]
The Applicant was invited once, in July 2019, to attend an audit
committee meeting with the CAE. She was invited to join
as it was the
first audit committee meeting held after the Applicant was employed
by GEMS and she had to be introduced as the senior
manager
responsible for forensic investigations. Furthermore, Mr Masekoameng
wanted to give her exposure to how GEMS committee
meetings worked.
[12]
If there was a complaint lodged against the CAE, the system was set
up in such a manner that the complaint would not
be sent to Mr
Masekoameng, but would be sent to the principal officer, Mr Guni
Goolab, and the chairperson of the audit committee.
[13]
The Respondent has an employee relations policy, which was applicable
to the Applicant. The said policy provides for
a protocol to be
followed in the event that the Applicant had an issue with her line
manager and there are internal channels to
be followed. If the
Applicant had an issue with Mr Masekoameng, she could escalate the
issue through the appropriate channels,
up to the level of the
principal officer, who remains responsible for the Respondent’s
administration and ensures that the
policies are complied with. It
would be inappropriate for the Applicant to report issues in respect
of the CAE externally.
[14]
The audit committee’s role is
inter alia
to oversee
matters relating to the Respondent’s financial reporting and
they are responsible for the appointment of external
auditors, who
review the Respondent’s financial statements. The external
auditors are appointed to sign off and review the
annual financial
statements issued by GEMS. The CAE reports to the audit committee.
[15]
Mr Masekoameng explained that the audit committee charter and the
internal audit charter are reviewed annually and the
Respondent’s
policies, such as the whistleblowing policy, are subjected to regular
reviews.
[16]
In respect of charge 10, Mr Masekoameng testified that the Applicant
wrote an email to Mr Lesejane, the chairperson of
the audit
committee, and she copied Ms Chalmers, an external member of the
audit committee, which email pertained to an alleged
whistleblowing
issue. He explained that the correct protocol to lodge a
whistleblowing complaint would be to follow the whistleblowing
policy
and to raise the issue with the principal officer.
[17]
In respect of charge 1, Mr Masekoameng testified that an
investigation into tender irregularities within GEMS commenced
late
in 2016 and was concluded early in 2018. The board of trustees
appointed an investigation firm (Ligwa Advisory Services) to
investigate eight contracts of service providers and suppliers and
the presentation of the final report took place during January
2018.
The board of trustees indicated that criminal charges be lodged with
the SAPS and a case was opened during March or April
2018. Due to the
nature of the case and the value involved, a disclosure had to be
made to the Directorate for Priority Crimes
Investigation (Hawks),
whereafter the Hawks guided the Respondent through the process and
from that point forward, the Hawks ran
with the investigation. This
happened prior to the Applicant’s employment with GEMS and
subsequent to her appointment as
the senior manager responsible for
internal forensic investigations, some of the responsibilities were
handed over to her.
[18]
They had a meeting with the investigating officer from the Hawks on
23 August 2019, to get an update on the case and
to convey the
Respondent’s displeasure with the lack of progress on the
investigation. In the meeting, it was decided that
a letter should be
addressed to the line manager of the investigating officer, as there
was no progress and the Applicant was tasked
to draft the letter.
[19]
Mr Masekoameng subsequently enquired about the progress with the
letter and the Applicant informed him that she struggled
to get the
details of the person to whom Colonel Mothedi indicated that the
letter should be addressed. In the presence of the
Applicant, Mr
Masekoameng contacted Colonel Mothedi to get the contact details from
him. During the call, Colonel Mothedi asked
if the contact details
were still necessary or relevant because the SIU had already been
contacted. Mr Masekoameng ended the call
with Colonel Mothedi and he
testified that he was surprised and embarrassed because he was
unaware that the SIU was involved and
because it was not what was
agreed to in the meeting with Colonel Mothedi in August 2019. The
Applicant did not do what was agreed
to and what she was instructed
to do and according to Mr Masekoameng, if she did not agree with the
action that was agreed on,
she should have discussed it with him,
instead of just writing a letter to the SIU. Her conduct caused
embarrassment and reputational
damage to the GEMS as it was not
professional to agree on a course of action and to do something else.
[20]
The CEA explained that the issue was that the Applicant was
instructed to write to the Hawks, but contrary to the CEA’s
decision and instruction, she decided to take a different route and
to write to the SIU, because she believed that it would be
better to
follow that route, which was not aligned with the discussion they had
or the decision that was taken. Mr Masekoameng
testified that the
Applicant had undermined his authority.
[21]
In cross-examination it was put to Mr Masekoameng that she did not
refer a matter to the SIU, she merely engaged with
the SIU and what
she did was within her mandate. Mr Masekoameng disputed the
Applicant’s version and referred to the email
that the
Applicant had sent to the SIU, stating that “
GEMS stance on
this matter is that immediate intervention is required on this
matter. GEMS therefore request assistance in referring
this matter to
the SIU in order for this case to reach some finalisation”.
[22]
The Applicant’s version was further that it was part of her
mandate to engage law enforcement agencies and in doing
so, her
conduct was not insubordinate. The CAE responded that “
we
agreed on one thing. Your client [the Applicant] did not agree with
the way forward that I agreed with her. She decided to go
and do
something else”
and “
there is a difference between
engaging and purporting to have an instruction or a mandate to
appoint a law enforcement agency to
deal with the matter…”
[23]
The Applicant’s case was that her engagement with the SIU was
done in terms of the meeting held as she was seeking
alternatives in
taking the matter forward, other than writing to the Hawks and that
she had taken these steps in good faith and
in an attempt to advance
the prerogatives of the forensic investigations unit. Mr Masekoameng
responded: “
I dispute the outcome and the discussion of the
meeting of the 4
th
of September because your
client was never given any directive to go and engage the SIU on the
matter… on the point of good
faith, you don’t do things,
make commitments on behalf of the Scheme and then make proposals or
present alternatives after
you have already acted. I would disagree
with the point that this was done in good faith”.
[24]
The Applicant’s version was further that during the meeting
with Colonel Mothedi, she did not receive an instruction
to write a
letter, but that it was agreed upon that she would explore
alternatives in taking the matter forward. Mr Masekoameng
was adamant
that “
there was only one agreed way forward from the meeting
with Colonel Mothedi and that was to write the letter”.
[25]
The CAE testified that Ms Venter, the Respondent’s quality
assurance manager, informed the team members with audit
responsibilities that they would be subjected to an external quality
assurance review (EQAR). The Institute for Internal Auditors
(IIA)
requires that internal audit divisions should be subjected to an EQAR
at least every five years to assess whether the division
is managed
in line with the standards and whether the work is performed in
accordance with the standards of the IIA. The employees
who were
required to take part in the EQAR were the ones having auditing
responsibilities. That excluded the Applicant and she
received a
clear instruction from the CAE not to be involved in the EQAR.
[26]
The third charge related to the fact that the Applicant was given
clear instruction not to involve herself with the EQAR,
but despite
the instruction, she involved herself with the EQAR interviews by
contacting the reviewer and the IIA. The Applicant
was interviewed by
the reviewer, Ms Sennelo, contrary to the CAE’s clear
instruction. Ms Sennelo was appointed by IIA South
Africa to conduct
the EQAR.
[27]
Mr Masekoameng explained that when the audit survey form was
distributed to staff, the Applicant was included in the
distribution
list, but it was done just to keep her in the loop as to what was
happening in the organisation. In cross-examination,
he admitted that
it was in fact a mistake to send the form to the Applicant, as she
was not an internal audit manager. He sent
the form to the Applicant
by mistake, he did not invite her to take part in the survey.
[28]
This aspect was raised in cross-examination, especially the fact that
the survey was emailed to the Applicant wherein
it was written
“…
colleagues. May I ask you to complete the attached
survey and provide feedback as indicated below”.
Mr
Masekoameng responded that the first sentence of the email stated
that “
The attached survey is to be completed by all internal
audit managers”.
The Applicant was the Senior Manager:
Internal Forensic Investigations and she was not an internal audit
manager. The Applicant’s
version was that she was an internal
audit manager because she managed an internal auditor, therefore she
was required to complete
the survey. The CAE disputed this and stated
that internal audit managers are so appointed, which the Applicant
was not, she was
not part of the internal audit function. He further
clarified that the charge related to the Applicant pushing her way
into being
interviewed, not because she completed the survey.
[29]
The Applicant was not on the list of employees to be interviewed as
part of the EQAR.
[30]
Charge four relates to the email, dated 29 August 2019, which the
Applicant sent to Mr Lesejane and Ms Chalmers, with
the subject “
EQAR
concerns
”. The Applicant completed the internal audit
survey, which is to be completed by the internal audit personnel. She
was not
supposed to complete the form as she is not in the internal
audit division and she might not have sufficient information to
respond
to all the aspects.
[31]
The Applicant disregarded Mr Masekoameng’s authority when she
communicated directly with the audit committee chairperson,
Mr
Lesenjane, in her email of 29 August 2019. Mr Lesenjane responded to
the Applicant’s email on 29 August 2019 and he indicated
that
the principal officer must be involved in the issues she had raised
in her email and that the audit committee could not meddle
in it. Mr
Lesenjane advised the Applicant to raise her concerns with the CAE
and if she intended to escalate it, she should escalate
it to the
principal officer and the audit committee chairperson, who could then
confront the CAE with the principal officer.
[32]
Mr Masekoameng explained that the Applicant’s complaint related
inter alia
to the procurement of the EQAR and if a complaint
relates to procurement irregularities, it is a matter for the
principal officer
to deal with. The Applicant did not raise the
issues with the principal officer.
[33]
In cross-examination, it was the Applicant’s version that the
purpose of her email was to inform the audit committee
chairperson
about certain aspects which she had identified in respect of the
IIA’s conduct in the EQAR and to inform them
that she had
lodged a complaint with the IIA. Mr Masekoameng responded that there
were issues raised relating to EQAR and the IIA,
but there was also a
statement to the effect that there was a deliberate attempt to
procure the services of IIA South Africa for
the EQAR, which referred
to him.
[34]
It was further the Applicant’s version that the internal audit
charter gave her the authority to directly approach
the audit
committee or its chairperson when it relates to the functionality of
the internal audit function. Mr Masekoameng agreed
but qualified his
response by stating that employees cannot ignore all internal
protocols in terms of raising issues and that the
Applicant’s
conduct was not proper because her concerns related to his area of
responsibility and she should have raised
the issues with him –
“
the mere fact that I’m accountable to the audit
committee does not mean my subordinates can just jump over my head
and go
to the audit committee with the matters that concern me”.
[35]
In respect of charge five, Mr Masekoameng testified that the
Applicant misrepresented her position within GEMS to Mr
Nel, the
acting chief executive officer of IIA South Africa, after Mr Nel
enquired about the Applicant’s authority to request
reasons for
the outcome of and other information pertaining to the EQAR. The
Applicant stated: “
I am a senior manager for forensic
investigations and auditing within the internal audit unit and
reporting to the CAE… I
am raising these matters as a
concerned internal auditor…”
The Applicant’s
position was senior manager for internal forensic investigations.
[36]
Mr Masekoameng testified that the Applicant’s response to Mr
Nel was misleading and very concerning. He explained
that the
Applicant understood that if she did not indicate auditing
responsibilities, her complaint with the IIA may have been
put aside
as she had no business with internal auditing matters. Furthermore,
the Applicant had to exhaust all internal processes
of reporting and
escalating the issues before reporting it externally.
[37]
In cross-examination, it was put to Mr Masekoameng that forensic
investigation is not a separate function from internal
auditing. The
Applicant’s version was that internal auditing is an umbrella
term and forensic investigation is a field that
falls within internal
auditing. Mr Masekoameng disagreed with the version and explained
that forensic investigation is not a subset
of internal auditing and
that the applicable standards of internal auditing do not address
forensic investigation standards. He
reiterated that the Applicant
was not part of the team appointed to perform internal audit work.
Even though the Applicant is an
internal auditor by profession, she
was not employed by GEMS as an internal auditor.
[38]
The Applicant’s version in cross-examination of the CEA was
that she supervised an internal auditor, Ms Ndlovu,
during the period
August to September 2019, when the EQAR was conducted, and therefore
she was involved in the internal audit function
and participated
directly in performing internal audit work and therefore she had
business being involved in the EQAR. Mr Masekoameng
disputed this
version and explained that the Applicant was requested to manage Ms
Ndlovu for a very specific reason. Ms Ndlovu
had a conflict with her
manager and the Applicant was requested to review Ms Ndlovu’s
work at that point in time and it was
a very specific and limited
request. Ms Ndlovu’s work was not to be reviewed by the
Applicant for purposes of the EQAR. The
Applicant was well aware that
this was not part of her ordinary responsibility and after a few
weeks, she notified the CAE that
“
she’s no longer
doing it. And, knowing that it’s not part of her
responsibility, I obliged”.
[39]
The CAE testified that the Applicant’s conduct in this regard
was dishonest and that the position of Senior Manager:
Internal
Forensic Investigations requires a person of integrity. The Applicant
was dishonest and cannot be trusted.
[40]
In respect of charge six, Mr Masekoameng testified that the
Applicant’s communication to IIA South Africa, stating:
“…
the
internal audit unit would not have achieved a “GC”
however a “PC”...”
and that “
there is
a motive on why the organisation was driving for a “GC”…”
was damaging to the organisation. He testified that the Applicant
had a duty of good faith towards her employer and she had not acted
in good faith in making these statements to IIA South Africa.
[41]
In February 2020, IIA South Africa issued a letter, commenting on the
Respondent’s quality assessment review. It
was confirmed by Mr
Nel that GEMS had received a “
generally conforms
”
rating to the international standards for the professional practice
of internal auditing. Mr Masekoameng testified that
he did not know
what the ‘motive’ the organisation was driving for was,
as alleged by the Applicant in her correspondence
to IIA South
Africa. The email was damaging to the reputation of the organisation
and it was aimed to discredit GEMS.
[42]
Mr Masekoameng testified that the statement “
the
organisation has a motive does not portray the organisation in a good
light”
and he disagreed with the Applicant’s version
“
that motive means just having a good rating”.
[43]
Mr Masekoameng testified that the Applicant’s email to IIA
South Africa indicated that she was malicious and on
a mission to
discredit him and the Respondent. In cross-examination, it was put to
Mr Masekoameng that any person may lodge a complaint
with IIA South
Africa and that the Respondent’s case that the Applicant did
not have authority to refer the matter to the
IIA, was incorrect and
not in accordance with the applicable standards. It was clarified
that the Applicant was not charged for
misconduct in that she
referred her complaints to IIA South Africa, but rather that she had
accused the CAE of being unethical,
unprofessional and acting for
personal gain, having an ulterior motive, acting maliciously and with
the intent to discredit Mr
Masekoameng.
[44]
After the Applicant complained about procurement irregularities
pertaining to the appointment of IIA South Africa to
conduct the
EQAR, the Respondent appointed Grant Thornton to investigate whether
there were procurement irregularities. No irregularities
were found
in the procurement process and according to the CAE, it confirmed
that the Applicant’s allegations were unsubstantiated.
The
conduct of the Applicant was malicious and it shows that she is not
compatible with the role of a senior manager, as she raised
complaints without any substance or objectivity. The CAE explained
that the role of Senior Manager: Internal Forensic Investigations
entails the receiving of complaints, assessing them objectively and
making conclusions and recommendations, which the Applicant
is unable
to do as she lacks objectivity.
[45]
Charge eight related to the leaking of confidential information in
respect of an internal investigation into the vetting
of
qualifications of certain executives. The misconduct was a leak of
information of a whistleblowing tip-off instruction that
the
Applicant was tasked to investigate. The CEA explained that a
whistleblowing instruction constitutes confidential information.
The
Respondent’s whistleblowing policy provides that GEMS will keep
all matters reported and investigated strictly confidential.
[46]
Ms Nthinya complained to Mr Masekoameng that the Applicant discussed
confidential information with persons that it should
not be discussed
with and about the fact that assumptions or conclusions were made or
suggested, even before an assessment was
done. Ms Letts also
complained to the CAE about the information the Applicant requested
from her about her boss. The confidential
information related to Dr
Lewatle.
[47]
On 9 October 2019, Dr Lewatle addressed an email to Mr Masekoameng
and the principal officer, wherein he expressed his
unhappiness to
hear from his subordinates that he was under investigation by the
Applicant. He complained that his reputation,
integrity and conduct
had been questioned and his subordinates were coerced to cooperate
against him to provide information to
the Applicant. Dr Lewatle
requested intervention to stop the Applicant from using devious
methods and from spreading false information
and to ensure that
proper processes are followed.
[48]
The Applicant tried to obtain information regarding Dr Lewatle via
WhatsApp messages, which Mr Masekoameng testified
was not the proper
way to investigate a confidential matter. He testified that the
Applicant breached the rule in respect of confidentiality
and it
showed that she could not be trusted to handle confidential
information. She shared sensitive information with the subordinates
of the subject and did not comply with the whistle-blowing policy.
[49]
In cross-examination, it was the Applicant’s version that she
consulted with Ms Cindy Letts, the human resources
business partner,
and Ms Neo Nthinya, the employee relations manager, and that she was
permitted to consult with division personnel,
such as employee
relations, to ascertain the best course of action. Mr Masekoameng
disputed this and explained that at the time
the Applicant consulted
with the employee relations officer, she was still investigating the
matter and no conclusions were made.
The Applicant’s version is
flawed as there was no point in involving the employee relations
officer to confirm the way forward,
when the matter is still to be
investigated and there was no outcome, for which a way forward was to
be decided, more so as Ms
Nthinya reported to Mr Lewatle – the
Applicant should not have gone to Ms Nthinya to ask for a way forward
as far as her
boss was concerned, but should have approached the
principal officer, as Mr Lewatle’s responsible line manager. It
is not
proper to go to a subordinate of Mr Lewatle to get the way
forward on how the matter should be dealt with.
[50]
In short, the Applicant’s version was that the information she
had disclosed to Ms Nthinya, was confidential, but
she disclosed it
in a confidential meeting, within her powers to consult with Ms
Nthinya.
[51]
Charges nine and ten follow from Mr Masekoameng’s decision to
exclude the Applicant from the audit committee meeting
to be held on
17 October 2019. As a result of the CEA’s decision and the
Applicant’s disgruntlement with it, she wrote
an email to Mr
Lesejane and Ms Chalmers, complaining about her line manager.
[52]
The CEA indicated to the Applicant on 16 October 2019 that she was
not required to attend the audit committee meeting
of 17 October
2019. She subsequently addressed an email to Ms Combrink, the
Respondent’s chief compliance officer, and Mr
Singh, a senior
manager reporting to Ms Combrink. The Applicant stated that she found
her exclusion strange as she was a senior
manager in the internal
audit unit and alleged that Mr Masekoameng was hindering her
performance to raise and obtain clarity in
these meetings. She
complained that she could not raise her issues as she was denied
access to the audit committee meeting and
the Applicant sought
guidance from Ms Combrink.
[53]
Mr Masekoameng testified that it was not proper for the Applicant to
raise complaints with Ms Combrink about him hindering
her
performance, as Ms Combrink is his peer and Mr Singh his junior. It
was improper to refer the CAE’s decisions to his
peers and
another senior manager in another division. This was not the proper
channel for the Applicant to raise a relationship
issue with her line
manager. The issues should have been raised through the employee
relations policy or directly with the principal
officer.
[54]
Ms Combrink responded to the Applicant and advised her that the CAE’s
decision in relation to her attendance of
the meeting was in line
with the GEMS Governance policy, as senior managers attend these
meetings only by special arrangement.
The Applicant was invited to
alert Ms Combrink to any conflicting provisions in other governance
documents that she might be aware
of. The Applicant was specifically
advised that “
should you disagree with the decision of the
CAE, the disagreement and/or dispute may be managed in keeping with
paragraph 13 of
the GEMS employee relations policy”.
[55]
The Applicant responded to Ms Combrink by stating that “
section
9 of the internal audit charter further outlines that the internal
audit function has direct and unrestricted access to
the audit
committee at all times”.
She further informed Ms Combrink
that she had reported the matter to the audit committee chairperson
and Ms Chalmers.
[56]
The Applicant did not heed Ms Combrink’s guidance, instead, she
raised the issues directly with Mr Lesejane and
Ms Chalmers. Mr
Masekoameng testified that he was humiliated and embarrassed by the
Applicant’s conduct and it constituted
a breakdown in the
relationship of trust. The CAE expected that the Applicant, if she
had legitimate issues, would raise them,
following the formal and
applicable process.
[57]
In cross-examination, the Applicant’s version with respect to
disregarding protocol was that she regarded her exclusion
from the
audit committee meeting as an ethical matter and therefore she took
it up with the ethics department. Mr Masekoameng disputed
this and
testified that he made a decision that the Applicant would not be
attending audit committee meetings and he communicated
his reasons
with the Applicant. His reasons were that, based on the complaint
from Mr Lewatle that confidential information had
been discussed
beyond what should have been the borders, he was not comfortable
taking her to the audit committee because he could
not trust her with
confidential information. He testified that “
she’s now
not happy with that decision. She’s questioning my decision.
The mere fact that she’s not liking my
decisions and she’s
questioning my decision, does not make it an ethical issue”.
He
further explained that the Applicant did not accept his instructions
or decisions, which is why she saw it necessary to approach
Ms
Combrink and Mr Singh to check if his decision was correct.
[58]
Mr Masekoameng did not agree with the Applicant’s version that
she was merely seeking guidance from Ms Combrink
and Mr Singh about
her attendance of the audit committee meeting, as she also stated in
her correspondence to them that Mr Masekoameng
was hindering her
performance. He testified that the aforesaid statement was clear –
the Applicant was not seeking guidance
as to whether or not she could
attend the audit committee meeting, as she also raised a number of
governance issues with Ms Combrink
and Mr Singh. Ms Combrink provided
her with a response and as it was not the response she wanted, the
Applicant proceeded to the
chairperson of the audit committee.
[59]
The Applicant raised issues with the audit committee and in her
email, she made serious accusations and complaints in
respect of the
CAE, as was recorded in the wording of charge ten. She alleged
inter
alia
that she was ‘stonewalled’ by the CAE to perform
her investigative functions.
[60]
Mr Masekoameng disputed
that the complaints the Applicant raised with Mr Lesejane and Ms
Chalmers constituted whistleblowing, as
contemplated in the GEMS
whistleblowing policy or the Protected Disclosures Act
[2]
(PDA). He explained that the Applicant’s complaints related to
her line manager and should have been dealt with in terms
of the
employee relations policy. The complaints were not raised in good
faith and were not matters to be dealt with in terms of
the
whistleblowing policy, as the said policy does not apply to personal
grievances or other aspects of a working relationship.
The
whistleblowing policy provides that complaints raised in terms of the
policy must be raised without malice, must be made in
good faith and
must not be based on gossip, rumour or for personal gain. The policy
provides for reporting on an irregularity or
criminal act, not for a
mere request to review certain aspects of a decision etcetera.
[61]
The Applicant’s complaints raised with the audit committee,
which she alleged was whistleblowing, were investigated
and
considered by the audit committee and the principal officer. The
outcome was provided to the Applicant on 1 November 2019 and
it found
that the CAE was not stonewalling the Applicant, that the issues she
raised related to the CAE’s management style
and that the
Applicant was not conducting herself towards the CAE in a manner
which was required. The complaints raised were found
to be unfounded
and made in an attempt to discredit the CAE, they were
unsubstantiated and based on the Applicant’s own opinions
and
did not constitute a whistle blowing complaint.
[62]
It is evident from the transcribed record that the Applicant’s
representative posed a substantial number of irrelevant
questions to
Mr Masekoameng and he dealt extensively with issues that had no
bearing on the issues the arbitrator had to decide
and which took the
Applicant’s case no further. Also, it is apparent that the
Applicant’s representative stood the
proceedings down on a
number of occasions to take instructions and some propositions were
withdrawn after instructions were taken.
The cross-examination was
problematic and evidently, the Applicant’s representative had
great difficulty in putting her version
to Mr Masekoameng.
[63]
In my view, Mr Masekoameng summarised the gist of the issue in his
evidence when he said that “
it’s about your client,
when she thinks she’s doing the right thing, she just goes on
and act [sic] without authority”.
[64]
It is evident from the questions posed in cross-examination that the
Applicant’s conduct was informed or motivated
by her own
opinions or her own impressions of what the situation was, which was
not necessarily informed by or supported by facts.
In my view, the
Applicant acted with undue haste, without ascertaining what the true
position was and she acted when her subjective
impression was that
something was wrong or irregular, when it was not necessarily the
case. Statements made during cross-examination
support this
impression. To illustrate: statements such as “…
the
information I’m referring to relates specifically to my
client’s statement that
it is her view
that
there was a deliberate attempt to procure the services of the IIASA…”
“..she had a look at the reports and
some of the other
information contained in the shared folder and she reached what she
calls
a sense of an idea of her opinion
…”
[65]
The evidence of Mr Masekoameng was recorded in 612 typed pages of the
transcribed record.
[66]
The Respondent’s second witness was Ms Combrink, its chief
compliance officer. She explained that she is responsible
inter
alia
for compliance and ethics, risk management and integrated
reporting.
[67]
Ms Combrink explained that the internal forensics unit was
established to deal with whistleblower complaints and the
Board
resolved that it should be placed within the internal audit division
and that the CAE would be responsible for building up
capacity for
the internal forensics unit and for appointing the necessary people
to perform the function. The reporting line was
that the internal
forensics unit would report to the CAE, who in turn reports to the
audit committee, which is responsible to the
Board. The Applicant was
not supposed to report directly to the audit committee or Mr
Lesenjane, she reported directly to the CAE.
[68]
Ms Combrink interacted with the Applicant during the period May 2019,
when she was appointed, and November 2019, when
she was suspended.
She was introduced by Mr Masekoameng, as part of her induction or
orientation process, she saw the Applicant
at a meeting of the audit
committee and they had monthly engagements as part of developing the
ethics function to get an overview
of the type of issues that are
reported on the hotline, with the aim of improving the ethics risk
register. Ms Combrink did not
require or need to know the identities
of the individuals who were implicated in a whistleblowing complaint,
she just needed information
as to the type of issues that were
reported. They needed an understanding of whether the employees were
using the whistleblowing
hotline or not and what type of issues were
being reported. The information received on the hotline was
confidential and Ms Combrink
was only interested in the trends and
not the specifics of the information.
[69]
Mr Singh was appointed as the senior manager compliance and ethics in
June 2019.
[70]
In respect of charge eight, Ms Combrink testified that it was not
proper for the Applicant to go about an investigation
of a
whistleblower tip-off by means of WhatsApp communication, as it is
not a formal communication mechanism. It is further problematic
that
the Applicant approached Mr Lewatle’s subordinates during her
investigation and that she disclosed his identity. The
information
should not be made public until an investigation is concluded and
there is a real case. The Applicant’s approach
caused harm and
undermined the investigation.
[71]
In cross-examination, it was put to Ms Combrink that the Applicant
had not broken any rule when she sent the WhatsApp
messages. Ms
Combrink responded that “
I think I’ve stressed to you
in a previous question how important sound judgment is. So, I would
ask myself whether I would
conduct such serious and scheme business
that can have big consequences, whether I would conduct that on a
social media platform”.
[72]
Ms Combrink explained that the internal forensics unit was
specifically established to deal with whistleblowing and to
do so
confidentially and properly and that “
if employees are not
going to feel safe to submit or to report matters to this unit, then
it means that we’ve actually wasted
a lot of time and money in
setting this up”.
[73]
During September 2019, the Applicant requested a meeting with Ms
Combrink. She informed Ms Combrink that Mr Masekoameng
acted
unethically. Ms Combrink was very concerned, as the Applicant’s
unit was very new, and there was a possibility that
employees could
be coming forward with complaints against Mr Masekoameng or that
during the course of investigations, such information
came to the
fore. She asked the Applicant for more information.
[74]
Ms Combrink testified that nothing concrete was forthcoming, apart
from allegations about lifestyle audits and the EQAR.
When she raised
the issues with the CFO and the CAE, she was told that an
investigation was already underway as the Applicant had
filed a
complaint with IIA South Africa and with the chairperson of the audit
committee.
[75]
Ms Combrink testified that there is an employee relations policy,
which employees are required to follow to resolve issues
between
individuals and it provides for an escalation process. She explained
that if there is a serious matter, such as corruption,
and if an
employee has nowhere else to go, it is her duty to assist as she has
to protect the GEMS, and she would find it acceptable
for an employee
to schedule a meeting with her. If the issue is however a difference
of opinion or not getting along with one’s
line manager, such a
meeting would not be appropriate and she would be very uncomfortable
with a senior manager in her division
going to another executive
manager to have such a conversation.
[76]
In respect of charge ten, Ms Combrink testified that she received an
email from the Applicant on 16 October 2019 and
her impression was
that this is a matter which relates to an “
individual
employee to employee matter and that it’s not appropriate for
me, it’s not something that the ethics function
is supposed to
resolve… it looked like a grievance to me”.
Her unit
can give advice but cannot interfere in a relationship between two
employees. She testified that it was not appropriate
to send the
email to her or to Mr Singh, who reports to her. Ms Combrink disputed
the Applicant’s version that she wrote
the email to Ms Combrink
merely to seek guidance and she explained that the email made
allegations against Mr Masekoameng, which
were ultimately human
resource issues.
[77]
Ms Combrink advised the Applicant about the GEMS governance policy
and the employee relations policy in order for her
to seek guidance
from the said policies, but instead, the Applicant reported her
complaints to the audit committee. Ms Combrink
found this to be very
concerning, as there is “
a right way and a wrong way to do
things and I believe that she simply took the wrong way her. Then
secondly, I think the scheme
is harmed by all of this”.
[78]
Ms Combrink explained that the standard invitees to the audit
committee are set out in the audit committee charter and
it includes
the principal officer, the CFO, the CAE, and the Chief Compliance
officer and there is provision for the audit committee
to invite
employees who are not standing invitees. She made it clear that the
Applicant was interviewed for and appointed as Senior
Manager
Forensic Investigations and she is not employed as an internal
auditor. The role and responsibilities of the Senior Manager
Internal
Forensics do not involve any auditing work.
[79]
In cross-examination, it was put to Ms Combrink in respect of
reporting lines that the Applicant has a line manager,
but the audit
committee has an ultimate responsibility regarding the internal audit
functions and that as a forensic specialist,
she is within the audit
function, and therefore she is entitled to approach the audit
committee with functional issues. Ms Combrink
disputed this and
explained that the audit committee would first engage with the
Applicant’s divisional head, there is structure
and order in
what the Respondent does and it would be a completely disorganised
system if any forensic specialist could simply
approach the audit
committee.
[80]
She testified that she would not be able to continue working with the
Applicant, considering the position the Applicant
was employed for “
I
would worry that the information will not be kept confidential and
the investigations would be derailed because of it”.
[81]
The third witness called by the Respondent was Mr Lesejane, the
chairperson of the audit committee. Mr Lesejane is not
an employee of
the GEMS. He explained that the audit committee charter gets approved
by the Board. He confirmed that the amended
charter was approved.
[82]
Mr Lesejane confirmed that the audit committee has standing invitees,
which included the principal officer, the chief
operating officer,
the CFO, the chief compliance officer, the chief information officer
and the CAE. Executive managers can request
that their subordinates
attend the audit committee, but that is usually for a specific reason
as they do not really want the staff
at the audit committee meeting,
because it is for the executives to account.
[83]
Mr Lesejane explained that the audit committee is an advisory body to
the Board. The audit committee has a functional
part, where it makes
recommendations, which the Board has to approve. It also provides
assurance to the Board that internal control
processes, risk
management, information technology and financial reporting processes
are working effectively. The administrative
function of the audit
committee entails reporting to the principal officer and dealing with
issues such as the appointment of the
CAE. The audit committee has no
administrative role in the GEMS, as the principal officer is the one
who has the delegated function
to deal with administrative matters.
The only person the audit committee deals with is the CAE, through
the principal officer,
who ultimately accounts to the Board and they
do not get involved in staff-related matters. Those are dealt with by
the human resources
department and ultimately, the principal officer.
[84]
In clause 9 of the internal audit charter, mention is made of
unrestricted access for the staff of the internal audit
function to
the chairperson and members of the audit committee. It was the
Applicant’s version that in terms of the provisions
of the said
charter, she had unrestricted access to the chairperson of the audit
committee. Mr Lesejane explained that the Applicant
was employed as a
Senior Manager Forensic Investigations, within the internal audit
unit, reporting to the CAE. He explained that
the internal audit and
forensic investigation functions are separated, notwithstanding the
fact that they are within the same department
and reporting to the
same person. The expertise is completely different.
[85]
Mr Lesejane further explained that unrestricted access is always
subject to internal protocols and there are reporting
lines to be
followed.
[86]
He testified that the Applicant attended one audit committee meeting
after she was appointed in order for the audit committee
to meet her.
[87]
Mr Lesejane testified about the complaint the Applicant had raised
with him and Ms Chalmers on 16 October 2019. The audit
committee
meeting was held on 17 October 2019 and on 1 November 2019, the
outcome of the complaints raised was communicated to
the Applicant.
It was stated that the Applicant’s complaints were investigated
before Mr Lesejane reached his decision in
respect thereof. The
Applicant’s complaint, that she was stonewalled or marginalised
when she was not invited to the audit
committee meeting of 17 October
2019, was found to be without merit and that the Applicant was rather
raising issues with the CAE’s
management style. The disclosures
made were found to be unfounded and an attempt to discredit the CAE.
It was reiterated that the
Applicant was previously informed to
approach the principal officer if she wished to raise grievances
against the CAE and that
the correct process is not to address it
with the chairperson of the audit committee. The disclosures made
were unsubstantiated
and based on the Applicant’s own opinions
and were in some instances premature and did not constitute a
whistleblowing complaint.
The Applicant’s complaints were
dismissed.
[88]
In respect of the email the Applicant sent to Mr Lesejane in August
2019 to raise issues about the EQAR process, he testified
that the
issues raised related to her personal working relationship with the
CAE and other procurement issues. She was advised
that the audit
committee does not deal with those issues, as they are ultimately
dealt with by the principal officer. He testified
that he was
disappointed and concerned that the Applicant “
could be
sending such sensitive and critical matters where she is putting her
supervisor in a bad light...”
to him as the chairperson of
the audit committee.
[89]
On 26 September 2019, the Applicant requested a discussion with the
chairperson of the audit committee. Mr Lesejane responded
on 27
September 2019 and he copied the principal officer and the CAE in his
response. Mr Lesejane indicated that he was willing
to meet with the
Applicant, but there “
is process and protocol that we need
to respect. You previously made very serious allegations and I have
taken these with both Molapo,
your supervisor and Guni Goolab, the
principal officer. The principal officer is overseeing an independent
investigation of the
administrative related allegations. I am told
the report is ready but they are awaiting the report [from] the
IIASA. Administrative
matters are in the ambit of the principal
officer and as the audit committee, we will allow him to do his part.
You previously
made allegations of irregularities on the GEMS
procurement processes for the independent external reviewer. You also
made allegations
on human resource related matters. If you recall, I
asked you to address these matters with Molapo as your immediate
supervisor,
failing which you can escalate to the principal officer.
The principal officer has also expressed concern that you are raising
procurement and HR matters with the audit committee and not
escalating these internally first…”
[90]
Mr Lesejane testified that he had on at least four occasions reminded
the Applicant of proper protocol and processes
to be followed and he
repeated himself as it was clear to him that the Applicant was not
willing to report to or deal with her
immediate supervisor, the CAE,
or to escalate matters to the principal officer. The Applicant
undermined their authority and she
came across as someone who does
not follow protocol or authority.
[91]
Mr Lesejane explained that the Applicant was badmouthing Mr
Masekoameng and his view was that her complaints were not
made in
good faith but instead that there was an element of malice because
“
this person is a senior person. She has been in this
profession for quite a while, she should know how this profession is
working.
She is not new. If it was a junior, a junior internal
auditor fresh from university, I would pardon that person, that they
don’t
have practical experience. But we are talking about
somebody who has been in the profession…”
[92]
Ms Neo Nthinya, the employee relations specialist testified that she
is responsible for all employee relations, ranging
from grievances,
disciplinary hearings and representing GEMS at the CCMA, interactions
with trade unions and any other issues that
relate to employee
relations. She explained that she can assist a fellow employee with
an investigation into another employee’s
misconduct relating to
fraud in circumstances where the Respondent wants to determine
whether to take action in correcting the
behaviour. In such a case,
an employee would have to report wrongdoing or a transgression in
terms of the employee relations policy,
whereafter it is investigated
and the necessary process would unfold. She is not able to assist
when it relates to a whistleblowing
complaint as the audit department
is responsible for that.
[93]
On 3 October 2019, the Applicant addressed an email to Ms Nthinya,
pertaining to a meeting that was scheduled for 7 October
2019
regarding the GEMS whistleblowing policy. The purpose of the meeting
was to discuss Ms Nthinya’s input on the whistleblowing
policy
from an employee relations perspective. The Applicant subsequently
contacted her via email stating that “
I need to see you
urgently on a matter regarding investigations”.
Ms Nthinya
did not know what it was about and she went to the Applicant’s
office.
[94]
When Ms Nthinya arrived at the Applicant’s office, they did not
discuss the whistleblowing policy, instead, the
Applicant informed
her that there was a whistleblowing complaint received on the
official hotline relating to executives receiving
monies for
qualifications they claimed they obtained, but which were fraudulent.
The Applicant indicated that she was investigating
the matter, which
was related to fraudulent activities. At that time, the Applicant
just mentioned ‘executives’ and
she did not mention any
names.
[95]
Ms Nthinya testified that the Applicant did not confirm the
confidentiality of the meeting with her and she did not tell
her that
the information was confidential. Ms Nthinya informed the Applicant
that discipline is a function of line management and
if the issue
relates to executives, there was nothing she could do if she was not
mandated by the line manager, who would be the
principal officer. Ms
Nthinya indicated that the Applicant should take the issue to the
relevant person, as she could not assist
her without a proper
mandate. At that point, the Applicant indicated that she was
investigating Mr Lewatle for his PhD which was
obtained from a
university that does not exist and that he was receiving money from
the Respondent for that.
[96]
The Applicant indicated that it was a serious matter, so serious that
the Hawks were investigating it and that Mr Lewatle
would be arrested
soon. She told the Applicant to go to the principal officer and let
the principal officer instruct her (Ms Nthinya)
if they want her to
assist with the investigation. Ms Nthinya explained that the way the
Applicant expressed herself, it was as
if it was a foregone
conclusion that Mr Lewatle was indeed guilty and that consequences
would follow.
[97]
Ms Nthinya testified that she was shocked about the information the
Applicant had shared with her about Mr Lewatle, who
was the head of
her division. She went back to her office and told Ms Cindy Letts
that something strange was happening and that
she felt uncomfortable
about it. She was not sure what the Applicant expected from her, but
she felt uncomfortable, more so since
Mr Lewatle was her line manager
and she worked closely with him. Ms Letts’ advice was that she
should bring the Applicant’s
conduct to the attention of her
line manager. She subsequently called Mr Masekoameng and she told him
that she had a “
very uncomfortable, disturbing discussion
with one of his subordinates and I am not sure what it is that I am
supposed to do about
this”.
[98]
She explained that the manner in which the Applicant had approached
her and the things she told her were not in accordance
with any known
procedure for investigations at GEMS. She was given statements and
conclusions and she did not know what they sought
to achieve and to
her, it was weird and uncomfortable and she did not know what she was
supposed to do with the information. She
told the Applicant that she
could not assist her.
[99]
Subsequently, she attended a training course in Sandton with Ms Letts
and as they were having coffee, Ms Letts received
a WhatsApp message
from the Applicant. She showed Ms Nthinya the messages she had
received from the Applicant and they discussed
how uncomfortable it
made them feel. The message from the Applicant enquired whether Mr
Lewatle received an increment based on
his doctorate. Ms Nthinya said
that the Applicant had not treated the whistleblowing tip-off in a
confidential manner.
[100]
Ms Nthinya testified that the Applicant should have asked who had
received an increment based on their educational qualifications.
It
was unnecessary to ask Ms Letts to confirm whether Mr Lewatle had
received an increment based on his doctorate.
[101]
On 9 October 2019, Mr Lewatle raised a complaint in an email
addressed to the CAE and the principal officer to express
his
unhappiness about the fact that had he heard from his subordinates
that he was being investigated by the Applicant.
[102]
Ms Nthinya said that the Applicant’s conduct made her not trust
the Respondent’s whistleblowing system as
a lot of rumours went
around and the system was flawed and tainted.
[103]
Ms Nthinya testified that the information communicated to her by the
Applicant made her to doubt Mr Lewatle as well
as the Respondent, her
employer.
[104]
The Respondent’s last witness was Mr Mojapi, a senior manager
external forensic investigation. He is employed
by the GEMS and his
position is within the risk management and compliance department and
he reports to the chief compliance officer,
Ms Combrink.
The
Applicant’s case
[105]
The Applicant testified about how she viewed her position within GEMS
– “
I see myself in the internal audit function under
the chief audit executive. It’s not a sub-unit… It’s
a function
under the internal audit unit, so it’s a specialist
skill… a specialist in the internal audit function”.
The
Applicant explained that she regarded herself as a specialist in
forensic investigations or forensic auditing and according
to her,
forensic auditing and forensic investigation are exactly the same
thing.
[106]
It is evident from the transcribed record that the Applicant, in her
testimony, presented versions which were not put
to the Respondent’s
witnesses during their cross-examination.
[107]
The Applicant testified in respect of charge eight that she disagreed
with the charge. She received the whistleblower’s
report about
Mr Lewatle from Mr Masekoameng and she had to investigate the matter.
The report stated that Mr Lewatle’s profile
on LinkedIn showed
him with the fraudulent certificate and further that he was not
registered with SAQA. She disputed the charge
because the information
regarding the allegation that Mr Lewatle had a fraudulent
qualification, was already in the public domain
and it was therefore
not confidential information. She did not leak confidential
information as Mr Lewatle’s qualifications
were not
confidential.
[108]
The whistleblower also alleged that Mr Lewatle had been receiving
performance bonuses based on his qualifications, which
resulted in a
salary increment. This information was confidential and the Applicant
was required to investigate the allegation
by obtaining his personnel
files, which were kept in the human resources storeroom. She
contacted Ms Letts via WhatsApp and enquired
whether she would
qualify for a salary increment if she obtained a higher
qualification. She later enquired on whether Mr Lewatle
received a
salary increment based on his doctorate. The Applicant explained that
at this point she was busy with her investigation
on Mr Lewatle and
she wanted to confirm whether he had received a salary increment.
[109]
The Applicant explained that she had requested this information from
Ms Letts as she was the human resources manager
and the files
containing the information were in her office and she was the one to
provide the information the Applicant needed.
This was part of her
role and consistent with all her investigations through the
whistleblowing hotline by asking the relevant
unit for the
information needed. Her job description provided that she should
“
consult with division personnel
” in sourcing
information.
[110]
The Applicant disputed that it was inappropriate to request the
information via WhatsApp as WhatsApp is regarded as
a channel for
work-related matters and she had used it on various occasions to
discuss investigations with Mr Masekoameng. This
version was not put
to him during cross-examination.
[111]
She testified that she had a discussion with Ms Nthinya to seek
advice as to what the process would be if an executive
was suspected
of alleged fraudulent activity. Ms Nthinya advised her that normally
a letter to the person under investigation would
be sent from the
human resources department and such a letter is signed by Mr Lewatle.
Initially, she did not mention Mr Lewatle’s
name, but due to
the fact that Ms Nthinya was the subordinate of Mr Lewatle and the
letter was supposed to come from the human
resources executive, she
had to disclose to Ms Nthinya that the person involved in the
suspected misconduct was Mr Lewatle. Ms
Nthinya thereafter advised
that Mr Lewatle’s line manager, the principal officer, be
involved.
[112]
The Applicant said that Ms Nthinya, as an employee relations
specialist, should know that when dealing with an investigation,
it
should be confidential and not be communicated to other individuals
outside of the meeting or the relevant forum.
[113]
The Respondent’s ‘Standard Operating Procedure Manual’
(SOP) on whistleblower tip-offs made provision
for a pre-assessment
process. The Applicant testified that she disagreed with the
pre-assessment and that she conveyed to Mr Masekoameng
that the SOP
had to be revisited as pre-assessment is not a step in the
methodology for investigation of whistleblower complaints
and it was
not compliant with the PDA. Furthermore, it was part of her duties to
develop and establish processes relating to investigation,
only to
find that they were developed prior to her appointment.
[114]
The Applicant disputed that she falsely accused and spread rumours
that Mr Lewatle had been receiving an illegal performance
salary or
bonus. She explained that it was said in the hotline whistleblower
report, which report she had filed herself.
[115]
In respect of Mr Lewatle’s email to Mr Masekoameng, he informed
the Applicant that he would do a pre-assessment
of the matter,
discuss it with the audit committee and would get back to her to
confirm how he would handle the matter going forward.
The Applicant
testified that after she received the email from Mr Masekoameng, it
was evident to her that “
it was so obvious that he was
suppressing these investigations, that he did not want investigations
to happen when it came to executives
and that he already made a
determination from receiving Sam’s email that there was a
breach of confidential information,
without even having a discussion
with me, he already made that assumption. ..I further went on to
raise another email where I highlight
to him what is my position as
senior manager”.
[116]
During further correspondence with Mr Masekoameng, the Applicant
testified that “
I was just dismayed with him, to be honest
with him, I reached a stage that his behaviour throughout the whole
six months that I
have been there, there was suppression, not doing
the right thing, because that’s what we want to do is do the
right thing
in the organisation and he refused to do the right
thing”.
She disputed that her concerns related to a
grievance, as she was not aggrieved and “
my whole point of
raising issues with Molapo, of raising issues with the audit
committee chairperson, raising issues with the ethic
function, is
because we are required to report these matters lawfully. We need to
be able to protect the forensic investigations
and this is not my own
feelings or emotions that were involved, it was... I was appointed to
do a particular function for GEMS,
the best interest of GEMS and if
anything happens where the unit is victimised because the work was
being withheld, means that
this matter is a functional matter, it’s
a governance matter. So I believe it’s not a grievance…”
[117]
In respect of charge one, the Applicant testified that one of her
responsibilities was to deal with fraud and corruption
cases,
including the case that was reported to the Hawks in 2018. She
requested a meeting with Colonel Motedi, who was the investigating
officer from the Hawks. The meeting was arranged for 23 August 2019
and the reason for the meeting was that the case was outstanding
for
a long time. Colonel Motedi highlighted that he had capacity issues
and no work has been done in respect of the case. Subsequent
to the
meeting, a meeting was held with the principal officer on 4 September
2019 to give him feedback on all investigations. During
this meeting,
the issue of progress relating to the Hawks was raised. The principal
officer recommended that as a measure to expedite
the process, they
should speak to the head of the SIU.
[118]
The Applicant’s version is that she was only instructed to
write a letter to the Hawks after she had a meeting
with the SIU, to
find out if they could assist GEMS. The SIU confirmed that they have
the capacity and resources available to assist
with the case and only
after this, Mr Masekoameng instructed her to address a letter to
Colonel Motedi and his manager. The said
letter was signed by the CAE
on 13 September 2019. This version was not put to any of the
Respondent’s witnesses.
[119]
The Applicant testified that she did not agree with Mr Masekoameng’s
version of the events that transpired. She
submitted that she was
instructed to take the matter forward, under the supervision of the
CAE and the principal officer.
[120]
In respect of charge five, the Applicant testified that she did not
misrepresent her position with the Respondent because
she was a
Senior Manager Internal Forensic Investigation at the time and
managing an internal auditor in the internal audit function,
therefore she had the title of senior internal audit forensic
investigations and auditing.
[121]
Mr Nel, the CEO of IIA South Africa asked in his email to the
Applicant on what or whose authority within the organisation,
as she
was not the CAE, was she submitting her request to IIA South Africa.
She was not surprised to be asked about her authority
and her
impression of the question being posed by Mr Nel was that it was for
her “
to basically give a recommendation on which authority
did I have as either a member of the IIA or a member of the
organisation…
I’m regarded as a very esteemed member of
the IIA, so he basically wanted to find out whether I was CAE or a
member”.
Her response to Mr Nel, which the Respondent took
issue with, was to highlight to him that she had moved from her
previous organisation
and that she was a very senior manager in a new
environment. She did not misrepresent her position.
[122]
The Applicant testified that she had the authority to have a copy of
the EQAR as she was part of the interviews, she
submitted surveys and
the senior manager forensics plays a very key role in EQAR. She was
concerned when the CAE called a meeting
on 28 August 2019 to inform
the staff that he had received the draft EQAR report and that they
had received a ‘GC’,
because she had not received the
draft report. She then approached Unathi at IIA South Africa to raise
her concerns as she was
aware of a number of concerns and was of the
view that a number of findings were covered up. Unathi advised the
Applicant that
she does not deal with EQAR matters and that she
should contact Mr Nel, which the Applicant subsequently did.
[123]
The Applicant disputed that she was dishonest and insisted that as a
member of IIA, she had the authority to report
a particular matter
and to seek advice.
[124]
In respect of charge six, the Applicant testified that she reported
the matter to IIA South Africa for investigation
because she had all
the facts in her possession and had the necessary authority to report
any unethical conduct. She explained
that it was unusual for any
organisation to receive a ‘GC’.
[125]
The Applicant’s version was that in sending her email
communication to IIA South Africa, she “
acted within the
best interest of my employer. We all, with regards to best interest,
we want the organisation to be driving for
ethical leadership, for
proper governance processes to fight against fraud and corruption”.
[126]
She disputed that she displayed a total disregard for the
Respondent’s internal procedures in sending the emails
to IIA
South Africa because “
I disagree with internal procedures
for investigation because the IIA has a jurisdiction for unethical
conduct of internal auditors.
I have done that by reporting the
unethical conduct of three individuals in my complaints who are
members of the IIA, one being
Molapo, two being Yolanda Venter who
was the internal quality assurance assessor and three, Diana Sennelo,
who was the individual
who performed the EQAR. So, this matter deals
with unethical conduct of members and the jurisdiction for this is
not GEMS, it’s
the IIA and that GEMS should be able to allow
and respect the processes of another jurisdiction”.
[127]
In cross-examination, it was put to the Applicant that her version in
respect of charge six was not put to Mr Masekoameng
in
cross-examination when he testified. The Respondent’s
representative dealt with the aspects of the Applicant’s
evidence in chief which was not dealt with in cross-examination of
the Respondent’s witnesses in detail and it is not necessary
to
repeat it in this judgment.
[128]
In cross-examination, the Applicant for the first time testified that
she had no issue with the fact that Mr Masekoameng
excluded her from
the audit committee meetings. This version too was not put to any of
the Respondent’s witnesses and it
contradicted her own earlier
evidence and version put to the Respondent’s witnesses.
[129]
It is evident from the transcribed record that substantial and
material parts of the Applicant’s evidence were
not dealt with
in the cross-examination of the Respondent’s witnesses. It was
not put to the witnesses and they had no opportunity
to respond to
material parts of the Applicant’s version, as was presented for
the first time in her evidence in chief.
[130]
The transcribed record further shows that the Applicant did not
respond to questions being posed, but testified on issues
she wanted
to introduce and not responding to what she was asked.
[131]
In cross-examination, the Applicant reiterated that she had an issue
with the SOP manual, as, according to her, it was
in breach of a law
and a regulation and therefore she did not adhere to it. The
Applicant was of the view that she did not have
to report to the CAE
during the course and scope of performing her duties as a forensic
investigator, she only provided feedback
to him as she reported to
the CAE only administratively. Functionally she reported to the audit
committee.
[132]
The Applicant was referred to her contract of employment wherein it
was recorded that she shall report directly to the
CAE. It was put to
her that her line of report is through the CAE, who in turn reports
to the audit committee, which was spelt
out in her contract of
employment and the SOP and had been confirmed in the testimony of the
CAE, Ms Combrink and the audit committee
chairperson, Mr Lesejane,
and yet the Applicant insisted to dispute it. The Applicant was
unable to show even one instance where
and when she had reported to
the audit committee in the course and scope of performing her duties.
[133]
In respect of charge seven, the Applicant testified that she made the
assertions to IIA South Africa regarding Mr Masekoameng
because “
I
advocate for good governance. As a professional internal auditor, I
want the best for the profession. We have had several issues
in the
media where internal auditors were involved and external auditors
were involved in misrepresentation in reports etc, bringing
the
profession into disrepute. And my motive to submit this complaints to
the IIA South Africa was to say to the IIASA you need
to get your
ducks in a row or else we are going to have another scandal like the
state capture scandal, like the Steinhoff scandal,
like the
Tongaat-Hulett scandal and the Eskom scandal where internal auditors
and external auditors were used as mechanisms to
defraud an
organisation and I merely brought this to the attention of the IIASA
to deal with the unethical conduct should there
be instances of”.
[134]
The Applicant disagreed that the complaint was made maliciously and
with the intent to discredit Mr Masekoameng. She
explained that her
motive was always to ensure that “
we uphold our standard
wherever we are as internal auditors and my intentions are good
intentions to improve the value that internal
auditors bring to South
Africa”.
[135]
In respect of charge nine, the Applicant’s testimony, on
receiving the pack for the audit committee meeting, was
not put to Mr
Masekoameng. Her version differed materially from the version
presented by Mr Masekoameng and she made numerous accusations
pertaining to Mr Masekoameng, which were not put to him in
cross-examination.
[136]
The Applicant testified that when she received the email from Mr
Masekoameng on 16 October 2019, informing her that
she was not to
attend the audit committee meeting of 17 October 2019, she regarded
it as “
another suppression of speaking out on issues to the
audit committee who were in charge of the governance of
investigations…
I regarded it as the fact that Molapo has been
unethical in dealing with the investigations in the organisation and
is not addressing
these investigations for the best interest of the
organisation. And due to the fact that it’s the functionality
issue with
the audit committee chairperson and the audit committee, I
felt it appropriate to ensure that the audit committee chairperson
and
members know of this mission”.
She did not regard
the issues as a personal grievance, but rather a functional issue and
an ethical issue to be reported to the
audit committee. The Applicant
insisted that the issue was not an employee relations matter but that
it was a “…
governance matter. This is a functional
matter that is required through the ethics policy of the
organisation, to report these matters
via the process…which is
to the ethics executive and to the audit committee”.
[137]
The Applicant testified that she sent the email to Ms Combrink and Mr
Singh because Ms Combrink advised her that any
issues relating to
investigations and Mr Masekoameng should be in writing and that she
must also keep Mr Singh informed. She thus
acted on Ms Combrink’s
advice, a version that was not put to Ms Combrink in
cross-examination. She further testified that
she raised the issues
with Ms Combrink as they were ethical issues and governance issues,
which fell within Ms Combrink’s
mandate.
[138]
The Applicant disputed that she had sent the email to discredit and
create suspicion about Mr Masekoameng and she explained
that she was
merely seeking guidance or advice. Ms Combrink advised her to follow
paragraph 13 of the GEMS employee relations policy,
which advice she
did not follow because she did not regard the issue as an employee
relations issue.
[139]
She testified that she was not aware of the existence or provisions
of the Respondent’s governance policy until
she was made aware
of it by Ms Combrink on 16 October 2019.
[140]
In respect of charge three, the Applicant testified that she had
received an invitation to the opening meeting between
the CAE, Ms
Sennelo, who conducted the EQAR and the three internal audit managers
on 19 August 2019. Her understanding was that
by being invited to the
opening meeting, she was part and parcel of the EQAR and that she
would play a role in the EQAR. The purpose
of the meeting was to
introduce Ms Sennelo to the team. Furthermore, Ms Venter, the
internal quality assurance manager, copied
her in on an email wherein
she was preparing the staff for the EQAR. The CAE sent her the survey
to be completed for the EQAR on
19 August 2019 and he asked that the
survey be completed by all internal audit managers. At the time, she
was managing Ms Ndlovhu
and was regarded as an internal audit
manager.
[141]
When she received the aforesaid email from the CAE, she expected to
be part of the EQAR and that she was part of the
internal audit
function. She explained that “
I know that I would be part of
that EQAR is also due to the fact that I am the expert in fraud
investigations, expert in fraud risk
and would be advisory in that
regard”.
[142]
The Applicant completed the survey that was emailed to her and she
indicated that she was willing to participate in
a follow-up
interview with the assessment team. She sent the survey to Ms Sennelo
on 21 August 2019 and asked her to indicate when
she would like to
meet with the Applicant. Ms Sennelo responded “
can we meet
at 14:30 today
” and they agreed to meet as proposed. The
Applicant explained that she had not inserted herself in the EQAR,
but instead
“
I was given the opportunity to be part of the
EQAR, due processes were followed. And the EAQR lady was the
responsible person to
ensure who is interviewed, who is not
interviewed, how the processes were supposed to be followed”.
[143]
On 29 August 2019, the Applicant addressed an email to Mr Lesejane
and stated that “
I held a meeting with the EQAR lady last
week, as I pushed my way into being interviewed”.
She
explained that when she mentioned ‘pushed’, it was
because she was upset by the behaviour of the CAE when it came
to
certain matters “
so to me it was an emotional word that was
put in the email”.
She was upset due to the issues she
encountered at the time when she wrote the email and she used
‘pushed’ in the incorrect
context. This is yet another
version which did not feature in the cross-examination of the
Respondent’s witnesses.
[144]
The Applicant testified that there is no difference between internal
forensic investigations and forensic auditing,
“
it is the
same thing. It is just different titles that are used”.
[145]
The Applicant testified that she did not ignore her line manager’s
instruction because there was no instruction
not to participate in
the EQAR and she disputed that she exceeded her authority by
participating in the EQAR because she was invited
to the opening
meeting, she was invited to complete the survey and it was within her
authority to deal with it.
[146]
In respect of charge four, the Applicant testified that she wrote to
the audit committee chairperson because, according
to the GEMS
whistleblowing policy and procedure for reporting internal matters,
the internal audit charter and the audit committee
charter, provision
is made for reporting processes. The audit committee and its
chairperson take overall accountability for the
EQAR process.
According to the Applicant, it was the correct procedure to follow.
[147]
In respect of charge ten, the Applicant disputed that she wrote the
email on 16 October 2019 as a result of her disgruntlement
with her
line manager’s decision to exclude her from the internal audit
committee meeting. She explained that she merely
voiced her concerns
and it was part of the reporting process. “
The instruction
was not to attend the meeting. But the instruction was not to voice
my concerns”.
[148]
The Applicant’s evidence comprised more than 700 pages.
Analysis
of the arbitrator’s findings and the grounds for review
The
test on review
[149]
I have to deal with the
grounds for review within the context of the test that this Court
must apply in deciding whether the arbitrator's
decision is
reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
(
Sidumo)
as
whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court held that the arbitrator's conclusion must fall
within a range of decisions that a reasonable decision
maker could
make.
[150]
The Labour Appeal Court
(LAC) in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[4]
affirmed the test to be applied in review proceedings and held that:
‘
In
short: A reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing and came to a conclusion
that is reasonable.’
[151]
The applicant in a review application is not to take a microscopic
view and dissect every finding of the arbitrator
but has to show that
holistically, the award is unreasonable or that the arbitrator’s
findings led to an unreasonable outcome.
[152]
In considering the Applicant’s grounds for review, this Court
should not lose sight of the limited scope within
which a review
application is to be decided.
[153]
In
Head
of the Department of Education v Mofokeng
[5]
(Mofokeng),
the LAC provided the
following exposition of the review test:
‘
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will
ex
hypothesi
be material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error material to the
determination
of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues,
with the
result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted from the
correct
path in the conduct of the arbitration and as a result failed
to address the question raised for determination.’
[154]
The review Court is not
required to take into account every factor individually, consider how
the arbitrator treated and dealt with
each of those factors and then
determine whether a failure by the arbitrator to deal with it is
sufficient to set the award aside.
This piecemeal approach of dealing
with the award is improper as the reviewing Court must consider the
totality of the evidence
and then decide whether the decision made by
the arbitrator is one that a reasonable decision maker could make.
[6]
[155]
In
Quest
Flexible Staffing Solutions v Legobate
[7]
,
the LAC
confirmed the test to be applied on review:
‘
[12]
The test that the Labour Court is required to apply in a review of an
arbitrator’s award is this: “Is the
decision reached by
the commissioner one that a reasonable decision-maker could not
reach?” Our courts have repeatedly stated
that in order to
maintain the distinction between review and appeal, an award of an
arbitrator will only be set aside if both the
reasons and the result
are unreasonable. In determining whether the result of an
arbitrator’s award is unreasonable, the
Labour Court must
broadly evaluate the merits of the dispute and consider whether, if
the arbitrator’s reasoning is found
to be unreasonable, the
result is nevertheless capable of justification for reasons other
than those given by the arbitrator. The
result will, however, be
unreasonable if it is entirely disconnected with the evidence,
unsupported by any evidence and involves
speculation by the
arbitrator.
[13]
An award will no doubt be considered to be reasonable when there is a
material connection between the evidence and the
result or, put
differently, when the result is reasonably supported by some
evidence. Unreasonableness is, thus, the threshold
for interference
with an arbitrator’s award on review.’
[156]
The review test to be applied
in casu
is a stringent and
conservative test of reasonableness.
The Applicant
must show that the arbitrator arrived at an unreasonable result.
[157]
It is within the context of this test that I have
to decide this application for review.
The
arbitrator’s findings
[158]
The arbitrator had to determine whether the Applicant breached
workplace rules, as alluded to in the charges levelled
against her,
and if so, to determine an appropriate sanction.
[159]
In her analysis of the evidence, the arbitrator recorded that the
crux of the matter was whether the Applicant was guilty
of the
misconduct she was charged with. The Applicant denied any wrongdoing
but argued that, in the event that an adverse finding
is made against
her, her conduct did not attract a sanction of dismissal.
[160]
In deciding the issues
and being faced with two conflicting versions, the arbitrator
referred to the principles set out in
Stellenbosch
Farmers’ Winery Group Ltd and another v Martell et Cie and
others
[8]
.
[161]
The arbitrator found that there was a common thread in all the
allegations levelled against the Applicant, namely that
she did not
follow the Respondent’s reporting protocols, policies and
procedures, disobeyed instructions and disregarded
the authority of
her line manager, Mr Masekoameng and that she breached
confidentiality in that she disclosed confidential information
relating to a whistleblowing tip-off.
[162]
The arbitrator found that the Respondent has led extensive evidence,
corroborated by documentary evidence, where the
Applicant disregarded
reporting lines and protocols in voicing her issues and concerns. The
Applicant on the other hand failed
to adduce any evidence to show
that she indeed followed the internal protocols in reporting her
concerns.
[163]
The Respondent’s witnesses testified that the Applicant did not
have a direct reporting line to the audit committee
and that they had
advised her on the proper procedures to follow, which advice she
disregarded.
[164]
The arbitrator further found that the Applicant never afforded her
employer an opportunity to remedy or investigate
her complaints,
instead, she raised it directly with IIA South Africa, which caused
the Respondent huge embarrassment and reputational
harm.
[165]
The arbitrator found that the Applicant presented multiple versions
during the inquiry, she did not put most of her
version to any of the
Respondent’s witnesses during their cross-examination despite
being warned of the consequences, her
evidence was riddled with
inconsistencies and contradictions, she was evasive, combative and
did not answer questions during her
cross-examination. The arbitrator
further found that the Applicant tailored her evidence and that she
was not a credible witness.
[166]
The bulk of the Applicant’s testimony centred around Mr
Masekoameng’s unethical conduct, but which the Applicant
was
unable to provide any proof of – her response was that all her
evidence was with IIA South Africa, as they have exclusive
jurisdiction to deal with the matter. The majority of the issues that
the Applicant had with the EQAR, was what Ms Sennelo had
told her and
as Ms Sennelo was not called as a witness, the evidence on this
aspect remained hearsay evidence.
[167]
The arbitrator recorded that the Applicant was a very skilled and
senior person, who holds various qualifications and
has extensive
experience. The evidence showed that she did not agree with the
Respondent’s policies, procedures and protocols
and that she
was therefore justified to ignore them. The Applicant, being such a
qualified and senior person, should understand
the consequences of
her actions and that she had to abide by her employer’s
policies, procedures and protocols. The arbitrator
rejected the
Applicant’s argument that she was not aware of the Respondent’s
policies or that she did not receive training
and that the Respondent
should have counselled her. A senior employee who made it a point to
inform the inquiry of her capabilities,
skills and experience would
not need training or counselling. The evidence showed that in the
instances where the Applicant was
advised, she did not follow the
advice.
[168]
The arbitrator recorded that the Respondent’s witnesses
testified that due to the Applicant’s conduct, her
multiple
baseless and defamatory complaints, remarks and issues raised
externally, the trust relationship had completely broken
down and a
future working relationship was not possible. The Applicant showed no
remorse and she came across as disrespectful.
[169]
The arbitrator concluded that the main requirement of an employment
relationship is for the employee to serve the employer’s
best
interest and to act in good faith because the relationship is based
on trust. The Respondent, on a balance of probabilities,
established
a case of misconduct and the Applicant failed to provide a credible
explanation for her actions. The arbitrator found
that the Applicant
contravened the rules and that she was guilty of the misconduct she
was charged with. Considering a number of
relevant factors, the
arbitrator found dismissal to be an appropriate sanction.
The
grounds for review
[170]
Before I deal with the merits of this case, I have
to say something about the documents placed before this Court. The
pleadings
alone comprised 732 pages, of which 660 pages were the
Applicant’s founding and supplementary affidavits. The
transcribed
record was almost 2000 pages and the total record
comprised 3 018 pages. The pleadings and record were lengthy and it
took a substantial
period for this Court to peruse and consider the
documents filed in this application.
[171]
The Applicant has raised three grounds for review, which I will deal
with in turn.
[172]
The gist of the first ground for review is the way the arbitrator
dealt with the evidence and sought to attack the findings
of the
arbitrator, based on her assessment of the evidence and her failure
to consider relevant evidence. Considering the test
to be applied in
an application for review, there is an obvious difficulty with the
Applicant’s case in that she seeks to
attack the findings of
the arbitrator on every piece of evidence. The Applicant has taken a
microscopic approach and has dissected
and set out every piece of
evidence and fact that she believes were either not considered or
properly assessed by the arbitrator.
[173]
I already alluded to the exposition of the review test in
Mofokeng
in relation to errors of facts or issues and the analysis of the
question of whether the irregularity or error is material, which
must
be assessed and determined with reference to the distorting effect it
may or may not have had upon the arbitrator’s
conception of the
inquiry, the delimitation of the issues to be determined and the
ultimate outcome.
[174]
T
he question this Court must ask on review
is whether the way the arbitrator dealt with the evidence,
constituted an irregularity
or error which was
material,
whether it impacted the determination of the question of whether the
Applicant was guilty of the misconduct she was charged
with and
whether it distorted the arbitrator’s ultimate decision.
[175]
The test on review and
the context within which it is to be applied is that the review Court
is not required to take into account
every factor individually but
must consider the totality of the evidence and then decide whether
the decision made by the arbitrator
is one that a reasonable decision
maker could make based on the facts placed before him/her.
[9]
[176]
The LAC has confirmed that to do it differently or to evaluate every
factor individually and independently is to defeat
the very
requirement of section 138 of the LRA which requires the arbitrator
to deal with the substantial merits of the case and
to do so
expeditiously and fairly.
[177]
In
Bestel
v Astral Operations Ltd and others
[10]
,
the LAC considered the
limited scope possessed by this Court to review an arbitration award
and accepted that an arbitrator’s
finding will be unreasonable
if the finding is unsupported by any evidence, if it is based on
speculation by the arbitrator, if
it is disconnected from the
evidence, if it is supported by evidence that is insufficiently
reasonable to justify the decision
or if it was made in ignorance of
evidence that was not contradicted. The LAC held that:
‘…
the
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be correct
by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[178]
Let it be clear: this is an application for review and not an appeal.
This is a difference which this Court must maintain.
An award will
only be set aside on review if both the findings and the result are
unreasonable. Even where the arbitrator’s
findings or reasoning
may be unreasonable, the result could nevertheless be capable of
justification, and therefore be reasonable
and not be interfered with
on review.
[179]
An arbitrator has to
determine a dispute fairly and quickly and deal with the substantive
merits of the case. The arbitrator is
not expected to produce an
arbitration award to the standard of a Constitutional Court judgment.
Section 138(7)(a) of the LRA requires
an arbitrator to provide ‘brief
reasons’, which serves to distinguish awards from judgments of
courts. Arbitrators
are not expected to provide reasons dealing with
each and every aspect of the case
[11]
but must deal with the substantive merits of the case and the reasons
provided, must support the conclusion.
[180]
The fact that the arbitrator did not deal with every piece of
evidence, does not mean that she had ignored the evidence
or that she
had failed to apply her mind to it nor does it
per se
render
the award reviewable. More is required to succeed with an application
for review. It has to be emphasized that the review
test to be
applied
in casu
is a stringent and conservative test of
reasonableness. The question is whether holistically viewed, the
decision taken by the arbitrator
was reasonable based on the evidence
placed before her.
[181]
The reasons in the arbitration award must state the arbitrator’s
material findings of fact and the decision must
be made on the basis
of the evidence.
[182]
The Applicant must show that the arbitrator
arrived at an unreasonable result. In fact, the Applicant must show
that the decision
is one that a reasonable decision maker could not
make, based on the evidence presented. The test is not whether the
arbitrator
came to the best decision or a decision acceptable to the
Applicant. A review is not an appeal.
[183]
I have to consider the grounds for review within the context of the
test this Court must apply in deciding whether the
arbitrator's
decision is reviewable. The ultimate question is whether,
holistically viewed, the decision taken by the arbitrator
was
reasonable based on the evidence placed before her. To consider each
piece of evidence separately, will constitute a piecemeal
approach
which is an approach this Court has to avoid.
[184]
This Court has to consider the totality of the evidence placed before
the arbitrator and cannot embark on a process
whereby every minute
detail of the arbitration award is assessed and analysed.
[185]
I have considered the question of whether, holistically viewed, the
decision taken by the arbitrator was reasonable
based on the evidence
placed before her, after perusal of the transcribed record, the
arbitration award and the purported grounds
for review raised by the
Applicant.
[186]
Considering the evidence before the arbitrator, it
is my view the arbitrator’s findings are not disconnected from
the evidence,
but in fact, are based on the evidence presented.
The
arbitrator’s findings fall within a band of reasonableness
based on the evidence that was placed before her. The arbitrator
did
not misconceive the enquiry but indeed determined the principal
issues she was required to determine.
[187]
There is no merit in the first ground for review.
Appropriateness
of the sanction
[188]
The Applicant’s second ground for review is that the arbitrator
committed a gross irregularity in failing to consider
the mitigating
factors “
in ordering that I contravened the first to tenth
allegation of misconduct charged against me by GEMS”.
[189]
In my view this ground for review is misplaced as the consideration
of mitigating factors would not play a role in finding
an employee
guilty or not of misconduct. Only once the employee is found guilty
of misconduct, the consideration of mitigating
factors would become
relevant in determining an appropriate sanction.
[190]
Be that as it may, the Applicant submitted that the arbitrator did
not consider that there was no progressive application
of discipline
in the workplace, alternatively, if it was found that the Applicant
overstepped, it was done in good faith and with
the most ethical of
intentions. This should have been considered by the arbitrator.
[191]
In short, the Applicant’s argument is that the allegations of
misconduct do not warrant a sanction of dismissal.
The arbitrator was
irrational in issuing a sanction of dismissal because she did not
consider that the Applicant had no ulterior
motives, and had acted in
good faith and with the most ethical intention when she reported her
manager’s unethical conduct.
[192]
In my view, there is no merit in this ground for review.
[193]
The evidence adduced does not support this ground for review as it
showed that the Applicant did not act with the most
ethical intention
and without an ulterior motive when she reported Mr Masekoameng’s
alleged unethical conduct. On the contrary,
the evidence showed that
the Applicant viewed herself as superior, as a very senior, qualified
and experienced expert whilst she
viewed her line manager as someone
who was not qualified to manage her, who was not able to understand
the technical nature of
her job and she was willing to take steps to
discredit him and she was keen to be managed by someone else, who she
regarded as
worthy and qualified.
[194]
The Applicant could not adduce any evidence to substantiate her
allegations of unethical conduct and it is evident from
the
transcribed record, that the Applicant was still new in the
organisation, that she acted without having all the facts and that
she was willing to make allegations and raise concerns without
concrete proof but based on her own perceptions, assumptions and
opinions.
[195]
It is evident from the transcript that the Applicant did not agree
with the Respondent’s policies, procedures
and protocols and
that her case was that because she was not in agreement, she was
therefore justified to ignore them. The Applicant,
being such a
qualified and senior person, should understand the consequences of
her actions and that she had to abide by her employer’s
policies, procedures and protocols. The attitude adopted by the
Applicant is not one which displays remorse and an acknowledgement
of
wrongdoing, which would generally signal the possibility of
rehabilitation and future compliance, but it was rather a persistence
that her views are correct and that she would do as she thinks best.
[196]
The Constitutional Court
(CC) in
Sidumo
[12]
has set out the factors to be considered in determining the
appropriateness of the sanction. The CC held that the arbitrator must
take into consideration the totality of circumstances, including the
importance of the rule that had been breached and held that:
‘
There
are other factors that will require consideration. For example, the
harm caused by the employee's conduct, whether additional
training
and instruction may result in the employee not repeating the
misconduct, the effect of dismissal on the employee and his
or her
long-service record. This is not an exhaustive list.’
[197]
The CC emphasized that the arbitrator has to
consider all the relevant factors and circumstances.
[198]
In casu,
the
Applicant was employed for a period of six months before she was
suspended and eventually dismissed during the following year.
[199]
The arbitrator considered the fact that
the
Respondent’s witnesses testified that, due to the Applicant’s
conduct, her multiple baseless and defamatory complaints,
remarks and
issues raised externally, the trust relationship had completely
broken down and a future working relationship was not
possible. The
Applicant showed no remorse and she came across as disrespectful.
[200]
The arbitrator further considered that the Applicant was a very
skilled and senior person, who holds various qualifications
and has
extensive experience. The advice that was given to the Applicant was
ignored and the arbitrator rejected the Applicant’s
argument
that she was not aware of the Respondent’s policies or that she
did not receive training and that the Respondent
should have
counselled her. A senior employee who made it a point to inform the
inquiry of her capabilities, skills and experience
would not need
training or counselling.
[201]
The arbitrator considered the factors in mitigation, but ultimately
found dismissal to be appropriate considering the
impact her conduct
had on the Respondent and Mr Masekoameng, the senior position held by
the Applicant, the serious nature of the
allegations all viewed
together and the lack of remorse.
[202]
It is evident that the arbitrator considered all the relevant factors
and circumstances to decide whether dismissal
was an appropriate and
fair sanction, as she was required to do.
Exceeding
powers
[203]
The third ground for review is that the arbitrator exceeded her
powers in relation to the duties of an arbitrator.
[204]
There is no merit in this ground for review and there are two
difficulties with this ground for review.
[205]
Firstly, there are two
broad categories of excess of power – the absence of
jurisdiction and excess of powers within jurisdiction.
The first is
where an arbitrator acts in the absence of jurisdiction, that is
where the necessary jurisdictional facts are not
in existence, such
as the existence of an employment relationship or a dismissal. The
second category is where an arbitrator, having
jurisdiction, exceeds
the limits of his/her powers, for example where an arbitrator orders
reinstatement of an employee whose dismissal
was found only to be
procedurally unfair, or grants more than the maximum permissible
compensation or decided an issue which the
parties have not placed in
dispute.
[13]
[206]
The Applicant submitted that the arbitrator exceeded her duties by
taking issue with the extent to which her version
was put to the
Respondent’s witnesses and by showing bias towards GEMS
throughout the proceedings. These averments or grounds
do not support
the exceeding of powers by the arbitrator and this ground for review
is ill-advised.
[207]
Be that as it may, the criticism against the arbitrator regarding her
refusal to recall the CAE as a witness because
the Applicant’s
legal representative failed to put versions to him during
cross-examination, is without merit.
[208]
After a witness has given his or her evidence in chief, the other
party is given the opportunity to cross-examine the
witness. The
intended purpose of cross-examination is
inter alia
to reveal
weaknesses in the evidence adduced, to challenge the truth or
accuracy of the witness’s version, to bring to light
facts
reinforcing the cross-examiner’s case, to elicit favourable
facts, to place a defence on record and to put the version
of the
cross-examining party.
[209]
A party has a duty to cross-examine on aspects which he or she
disputes. The rationale of the duty to cross-examine
is that the
witness should be cross-examined to afford him or her an opportunity
to answer points supposedly unfavourable to him.
[210]
The failure to
cross-examine a witness about an aspect of his or her evidence may
have the result that the evidence may not be called
into question
later. The cross-examiner who disputes what the witness says has a
duty to give the witness an opportunity to explain
his or her
evidence, to qualify it or to reveal its basis. Failure to do so has
been dubbed extremely unfair and improper.
[14]
Apart from the injustice to the witness, failure to cross-examine may
indicate acceptance, comparable with admission by silence.
[15]
From this point of view, such evidence will carry more weight than
evidence disputed by means of cross-examination and the failure
to
cross-examine, will be a factor increasing evidential value.
[16]
[211]
A failure to
cross-examine a witness on any aspect is generally considered to be
an indication that the party who had the opportunity
to
cross-examine, did not wish to dispute the version or aspects of the
version of the particular witness who was available for
cross-examination.
[17]
A
cross-examiner is duty bound to put his or her defence or version on
each and every aspect he or she wishes to place in issue,
to the
witness.
[212]
In
Masilela
v Leonard Dingler (Pty) Ltd
[18]
,
the Court was faced with
a scenario where a version was not put to a witness in
cross-examination and held that:
‘
The
problem that I have with the applicant's version where it differs
from that of Masina is that none of it was put to Masina while
he was
testifying. This court has been denied the benefit of Masina's
response. It is trite that if a party wishes to lead
evidence to
contradict an opposing witness, he should first cross-examine him
upon the facts that he intends to prove in contradiction,
to give the
witness an opportunity for explanation. Similarly if the court is to
be asked to disbelieve a witness, he should be
cross-examined upon
the matters that it will be alleged make his evidence unworthy of
credit. In
Small
v Smith
1954
(3) SA 434
(SWA) Claassen J said at 438:
“
It
is, in my opinion, elementary and standard practice for a party to
put to each opposing witness so much of his own case or defence
as
concerns that witness, and if need be, to inform him, if he has not
been given notice thereof, that other witnesses will contradict
him,
so as to give him fair warning and an opportunity of explaining the
contradiction and defending his own character. It is
grossly
unfair and improper to let a witness's evidence go unchallenged in
cross-examination and afterwards argue that he must
be disbelieved.”’
[213]
In casu,
the transcribed record shows that the arbitrator
throughout pleaded with the Applicant’s attorney to put her
version to the
Respondent’s witnesses and she warned him about
the consequences of not doing so. The Applicant explained that she is
an
expert who has a law degree and advises SASLAW on legal matters,
she was represented by an attorney, yet she effectively complains
that the arbitrator did not treat her as an unrepresented layperson,
who did not know that it was required to put versions to witnesses
and who requested to recall a witness for that purpose, because he or
she did not know of any better. The Applicant was represented
by an
attorney, who failed to put her versions to the Respondent’s
witnesses, notwithstanding the fact that it is a basic
principle of
the law of evidence and that the arbitrator constantly urged him to
do so. She cannot blame the arbitrator for the
consequences of her
attorney’s failure to put her version to the witnesses,
alternatively for her own failure to provide
her attorney with proper
instructions.
The
arbitrator was biased
[214]
Bias in the context of a review application is regarded as a patent
gross irregularity.
[215]
The principles related to the concept of bias have been set out by
the Courts and a brief overview of those principles
is necessary.
[216]
In
Turnbull-Jackson
v Hibiscus Coast Municipality and others (Ethekwini Municipality as
amicus curiae)
[19]
,
the
Court dealt with unfounded allegations of impropriety made against
public officers, a
nd
held:
‘
Allegations
of bias, the antithesis of fairness, are serious. If made with a
sufficient degree of regularity, they have the potential
to be
deleterious to the confidence reposed by the public in
administrators. The reactive bias claim stems from unsubstantiated
allegations of corruption and incompetence. These are serious
allegations, especially the one of corruption. Yes, if public
officials
are corrupt, they must be exposed for what they are: an
unwelcome, cancerous scourge in the public administration. But
accusations
of corruption against the innocent may visit them with
the most debilitating public opprobrium. Gratuitous claims of bias
like
the present are deserving of the strongest possible censure.’
[217]
In
Sepheka
v Du Point Pioneer (Pty) Ltd
[20]
,
the Court threw caution
as follows in respect of allegations of bias:
‘
Any
allegation of bias, especially on the part of a Judge of this Court,
must be substantiated by a proper factual basis, must not
be based on
mere speculation and conjecture, and must be proved by the party
alleging bias.’
[218]
It is a trite principle of law that in order to succeed with a claim
of bias, more than mere conjecture must be shown.
It happens that, in
the normal course of events, litigants could harbour a sense of
apprehension against those administering justice.
This of course does
not mean that, any time a litigant is not happy with the proceedings
or that the judgment or outcome is not
in that party’s favour,
a claim of bias would suffice.
[219]
The Courts have time and
time again warned against litigants making unfounded allegations of
bias on the part of presiding officers
tasked to decide disputes,
without cogent proof to substantiate the allegation.
[21]
[220]
It is a natural result of adversary litigation that one party would
be successful and that the other party would fail.
The mere fact that
the outcome went in favour of the other party, does not render the
presiding officer or decision maker biased.
More is needed.
[221]
In casu,
the Applicant claims that the arbitrator was biased.
To succeed with this ground for review, the Applicant has to prove
bias and
has to substantiate this claim with a proper factual basis.
[222]
The Applicant’s case is that the arbitrator showed bias towards
GEMS throughout the proceedings, which is clear
from her attitude
towards the Applicant and her legal representative. The Applicant
referred to specific portions of the transcribed
record which,
according to her, showed the arbitrator’s bias. She further
stated that the arbitrator pointed out in bold
letters in the award
every time the Applicant had contradicted herself in
cross-examination.
[223]
In my view, there is no merit in this ground for review.
[224]
The LRA sought to introduce a dispute resolution system that would
resolve labour disputes expeditiously, informally
and inexpensively.
Section 138(1) of the LRA promotes this purpose and in relation to
the conduct of arbitration hearings under
the auspices of the CCMA,
provides the following:
‘
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities.’
[225]
The LRA (in section 138) spells out the nature and content of the
right to a fair hearing in CCMA arbitration proceedings.
A
commissioner is required to conduct the arbitration in a manner that
the commissioner considers appropriate in order to determine
the
dispute fairly and quickly, but must deal with the substantial merits
of the dispute with the minimum of legal formalities.
Subject to the
discretion of the commissioner, as to the appropriate form of the
proceedings, a party to the dispute may give evidence,
call
witnesses, question the witnesses of any other party, and address
concluding arguments to the commissioner.
[226]
In
CUSA
v Tao Ying Metal Industries and others
[22]
,
the CC placed the
following gloss on section 138:
‘
Consistent
with the objectives of the LRA, commissioners are required to “deal
with the substantial merits of the dispute
with the minimum of legal
formalities”. This requires commissioners to deal with the
substance of a dispute between the parties.
They must cut through all
the claims and counter-claims and reach for the real dispute between
the parties. In order to perform
this task effectively, commissioners
must be allowed a significant measure of latitude in the performance
of their functions. Thus
the LRA permits commissioners to “conduct
the arbitration in a manner that the commissioner considers
appropriate”.
But in doing so, commissioners must be guided by
at least three considerations. The first is that they must resolve
the real dispute
between the parties. Second, they must do so
expeditiously. And, in resolving the labour dispute, they must act
fairly to all the
parties as the LRA enjoins them to do.’
[227]
The true role of a presiding commissioner in arbitration proceedings
is not necessarily that of a ‘silent umpire’,
but he/she
must studiously avoid any form of intervention which is calculated to
create the impression that he/she is descending
into the arena which
is ordinarily reserved for the litigants.
[228]
It is evident from the transcribed record that the arbitrator adopted
a more inquisitorial approach, as she was entitled
to do, that she
asked questions for clarity and to confirm her own understanding of
the evidence and that where necessary, she
apologised for comments
she made. The Applicant’s complaints regarding the questions
asked by the arbitrator and the comments
she made, do not justify a
finding that the arbitrator was biased and that the Applicant was
deprived of a fair hearing. The threshold
to establish bias is higher
than what the Applicant is able to meet.
[229]
The fact that the arbitrator, in her summary of the evidence in the
award, used bold letters to highlight versions not
put or
contradictions in the Applicant’s version, cannot constitute
bias and did not deprive the Applicant of a fair hearing.
It is a
matter of style in writing up the award and had no impact on the
conduct of the hearing.
[230]
In my view, the arbitrator’s findings fall within a band of
reasonableness based on the evidence that was placed
before her and
there is no basis for this Court to interfere with it on review.
In
casu,
the Applicant was unable to make
out a case for review, applying the test of reasonableness.
Costs
[231]
This Court has a wide discretion in respect of
costs, considering the requirements of law and fairness.
[232]
In her notice of motion, the Applicant sought a cost order against
any one of the Respondents who opposed the application.
In argument,
Mr Chowan submitted that the Applicant is entitled to punitive costs
as the Respondent’s conduct will send a
message that it is
acceptable to abuse whistleblowers.
[233]
Mr Bekker for the Respondent submitted that this is a matter where a
cost order would be appropriate as the application
is an abuse of
process. The Applicant attached documents to her founding affidavit
which are in the record and she is effectively
pursuing an appeal. He
argued that the review application should be dismissed with costs.
Effectively, both parties were seeking
an order as to costs against
the other.
[234]
In
Zungu
v Premier of the Province of KwaZulu-Natal and others
[23]
,
the CC
confirmed that the rule that costs follow the result does not apply
in labour matters. The Court should seek to strike a
fair balance
between unduly discouraging parties from approaching the Labour Court
to have their disputes dealt with and, on the
other hand, allowing
those parties to bring to this Court (or oppose) cases that should
not have been brought to Court (or opposed)
in the first place.
[235]
The generally accepted purpose of awarding costs is to indemnify the
successful litigant for the expense he or she has
been put through by
having been unjustly compelled to initiate or defend litigation.
[236]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
Others
[24]
,
it was
emphasized that:
‘…
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and incur
legal costs. An appropriate award of costs is one method
of ensuring
that much earnest thought and consideration goes into decisions to
litigate in the Labour Court, whether as applicant
in launching
proceedings or as respondent opposing proceedings.’
[237]
This is a case where the Court has to strike a balance.
[238]
In my view, this is a case where it is appropriate
to make a cost order.
A cost order is a method of ensuring
that decisions to litigate in this Court are taken with due
consideration of the law and the
prospects of success. The Applicant
has filed a review application which had no merit. This application
compelled the Respondent
to oppose it and the Respondent is entitled
to the cost incurred in doing so.
[239]
This Court is ordinarily reluctant to make orders for costs against
individual litigants, for whom the prospect of an
adverse costs order
may serve to inhibit the exercise of what they perceive as their
rights. This is however not an immutable or
inflexible rule.
[240]
F
airness dictates that the Respondent
cannot be expected to endure enormous costs defending meritless
litigation. I am alive to the
fact that the Applicant is an
individual, but I cannot ignore the fact that she ultimately
initiated a review application without
any merit and that she was
legally represented throughout the proceedings.
[241]
In the present circumstances, the interests of justice require that
the Applicant pays at least a portion of the Respondent’s
costs. In my view, a sum equivalent to 25% of the Respondent’s
costs will best serve those interests.
[242]
In the premises, I make the following order:
Order
1.
The application for review is dismissed;
2.
The Applicant is to pay the Third Respondent’s costs, limited
to 25% of the taxed costs.
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For the
Applicant:
Advocate A Chowan
Instructed by:
Webber Wentzel Attorneys
For the Third Respondent:
Advocate W Bekker
Instructed
by:
Gildenhuys Malatji Inc Attorneys
[1]
Act
66 of 1995, as amended.
[2]
Act
26 of 2000.
[3]
[2007]
ZACC 22
; (2007) 28 ILJ 2405 (CC) at para 110.
[4]
[2013]
ZALAC 28
; (2014) 35 ILJ 943 (LAC) (
Gold
Fields
)
[5]
[2014]
ZALAC 50
;
[2015] 1 BLLR 50
(LAC) at para 33.
[6]
Gold
Fields supra
at
paras 18 - 19.
[7]
[2014]
ZALAC 136; (2015) 36 ILJ 968 (LAC)
at
paras 12 - 13.
[8]
[2002]
ZASCA 98; 2003 (1) SA 11 (SCA).
[9]
See
Gold
Fields
supra
at
paras 18 - 19.
[10]
[2010]
ZALAC 19
;
[2011] 2 BLLR 129
(LAC) at para 18.
[11]
Mansoor
v CCMA and others
[2000]
1 BLLR 79 (LC).
[12]
Sidumo
at
paras 78 - 79.
[13]
A
Myburgh, C Myburgh, ‘
Reviews
in the Labour Courts
’
,
LexisNexis at pp 107 – 117.
[14]
Small
v Smith
1954
(3) SA 434
(SWA);
Barry
v Mxaisa
1977
(4) SA 786 (O).
[15]
S
v Boesak
2000
(3) SA 381 (SCA).
[16]
CWH
Schmidt, H Rademeyer
,
‘Law of Evidence’,
LexisNexis
at 9-54 – 9-72.
[17]
See:
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
[1999]
ZACC 11; 2000 (1) SA 1 (CC).
[18]
(2004)
25 ILJ 544 (LC) at para 28.
[19]
[2014] ZACC 24
;
2014 (11) BCLR 1310
(CC) at para 35.
[20]
[2018]
ZALCJHB 336; (2019) 40 ILJ 613 (LC) at para 16.
[21]
See for example
Sappi
Kraft (Pty) Ltd t/a Tugela Mill v Majake NO and others
(1998) 19 ILJ 1240 (LC)
at para 48;
SMCWU
v Party Design CC
[2001]
6 BLLR 667
(LC) at para 12.
[22]
[2008]
ZACC 15
;
[2009] 1 BLLR 1
(CC) at para 65.
[23]
[2018[
ZACC 1
; (2018) 39 ILJ 523 (CC) at para 24.
[24]
[2012]
ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.