About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 146
|
|
Hollywood Sportsbrook Gauteng v Commission for Conciliation Mediation and Arbitration and Others (JR2519/21) [2024] ZALCJHB 146 (7 April 2024)
FLYNOTES:
LABOUR – Dismissal –
Dishonesty
–
Dismissal
found procedurally fair but substantively unfair – Employee
assisting credit bets to be placed in workplace
– No duty to
report misconduct based on doctrine of derivative misconduct –
Being accomplice to misconduct is
a competent verdict –
Employee an accomplice – Conduct constitutes dishonesty –
High premium placed on
honesty in workplace – Award
reviewable and set aside.
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: JR2519/21
In
the matter between:
HOLLYWOOD
SPORTSBROOK GAUTENG Applicant
and
Commission
for Conciliation
Mediation
and
Arbitration First
Respondent
Commissioner
Londeka
Sosibo Second
Respondent
Lirontso
Jacqueline
Mokoena Third
Respondent
Heard:
8 December 2023
Date
Delivered
:
7 April
2024
T
his
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time
for hand-down
is deemed to be 09 April 2024
Summary:
Employee
assisting credit bets to be placed in the workplace. No duty to
report the misconduct based on doctrine of derivative misconduct.
Being accomplice to the misconduct is a competent verdict. Employee
an accomplice. Employee’s conduct constitutes dishonesty.
High
premium placed on honesty in the workplace. Award reviewable and set
aside.
JUDGMENT
SAVANT,
AJ
Introduction
[1]
This
is an unopposed application in terms of section 145 of the Labour
Relations Act
[1]
(LRA).
The applicant seeks to review and set aside an arbitration award
under case number GAVL3546-20, dated 15 October 2021
(award), issued
by the second respondent (commissioner)
[2]
under the auspices of the first respondent, the Commission for
Conciliation, Mediation and Arbitration (CCMA).
Background
[2] The
applicant is a licensed betting business in terms of the applicable
gambling legislation.
[3]
On
26 October 2020, the applicant proffered the following allegations of
misconduct against the third respondent, Ms Lirontso Jacqueline
Mokoena (employee):
[3]
“
Gross
misconduct in that it was discovered on the 1
st
September 2020 that you failed to act in the best interest of the
company by not reporting your team member who had printed top
up
vouchers without payment on your terminal, with your login details
which resulted in a shortage.
Gross
misconduct in that it was discovered on the 1
st
September
2020 that you failed to act in the best interest of the company by
not reporting your team member who was taking credit
bets.
Gross
misconduct in that it was discovered that on the 1
st
September 2020 that you failed to act in the best interest of the
company by not reporting your fellow team member who was gambling
on
duty”.
[4] On
28 October 2020, the applicant convened a disciplinary hearing
against the employee. The applicant
found the employee guilty of the
above first 2 allegations of misconduct. On 30 October
2020, the applicant dismissed
the employee.
[5] The
employee subsequently challenged the fairness of her dismissal at the
CCMA. The commissioner found
her dismissal to be procedurally fair
but substantively unfair. The commissioner ordered the applicant to
reinstate the employee
but limited her backpay to 12 weeks,
having found that the employee did not “entirely have clean
hands”.
Arbitration
proceedings
[6] The
applicant led the evidence of two witnesses, namely Ms Loraine
Shabalala (Shabalala), an area manager
and Ms Moeketsi Ndlovu, a
senior team leader. The employee testified and led the evidence
of Ms Charrel Mathope (Mathope),
a fellow mobile clerk and Ms
Sibongile Makhoba (Makhoba), a betting clerk.
[7] I
do not intend to deal in detail with the evidence that was led at the
arbitration proceedings but merely
provide a summary of the salient
aspects thereof.
[8] The
employee disputed the existence of the workplace rules that informed
the basis of the misconduct
against her. The applicant led
evidence with reference to its disciplinary code to establish a duty
on employees to report
misconduct and which also made it clear that
credit bets, whether for customers or personal gain are prohibited
(and carries a
dismissal sanction).
[9] The
applicant also led evidence as follows:
9.1. It
provides training to its employees twice a year in respect of its
disciplinary code and regularly
cautions employees against taking
credit bets.
9.2. With
reference to video footage, it demonstrated that the employee
permitted a fellow employee, a “Margaret”
to print a bet
(ticket) using the employee’s terminal. Margaret then took the
ticket and walked away. According to
the applicant’s
testimony, this constituted a credit bet as there was no exchange for
cash when the ticket was printed.
The employee can also be seen
looking at a mobile phone (presumably her mobile phone), before
handing it over to Makhoba, who was
within her close proximity.
Makhoba then looks at the mobile phone and starts to take many credit
bets. In other words, Makhoba
prints bets on her terminal without
receiving any cash for the bets. The footage also shows the
employee on least one occasion
looking at Makhoba when she was
printing the tickets/bets.
9.3. Credit
bets constitute a serious offence and dismissal as a sanction is
always imposed. If the bets
are not paid for it will cause the
applicant financial loss. Also, if a person wins the bet taken, the
person will benefit for
not paying for it. It led evidence further
that if credit bets are condoned, it will serve only to promote such
conduct. It also
dismissed Makhoba for placing credit bets. Makhoba
reported a loss of R700.00 when cashing up on her terminal.
This prompted
the applicant to view video footage and that is when it
discovered impropriety on Makhoba and the employee’s part. The
trust relationship with the employee cannot be salvaged.
9.4. Even
though the employee was short on her terminal when cashing up, the
monies balanced. She should
not have called a fellow employee (a Ms
Lerato) when she was cashing up to double check her cash shortfall
but rather a team leader
(which according to the applicant, can also
be viewed in the video footage).
9.5. It
was not permitted to share login details. It was permissible to use a
different employee’s
login details when logging onto a computer
but not a terminal (which is situated next to a computer). If
there is a shortfall
when cashing up on an employee’s terminal,
it will be assumed that the shortfall is attributable to the person
whose login
details were used on the terminal. The only exception to
print bets is if you are at an event and you do not “have a
machine
to send a voucher”. You can then contact the branch and
request vouchers (presumably a betting ticket), but it must be done
with senior management’s consent. This only happened on one
occasion when there was an event at the Vereeniging Correctional
Service.
[10] Below
is a summary of the employee’s evidence at arbitration:
10.1. She
was not aware of the disciplinary code. She disputed that credit bets
were impermissible. She worked
for the applicant for 6 years prior to
her dismissal.
10.2. She
was authorised by her manager, Shabalala, to allow her colleague on 1
September 2022 (presumably
Margaret) to login onto her terminal.
10.3. The
employee conceded under cross-examination that her version at the
disciplinary hearing was that
she handed Makhoba a mobile phone
reflecting a message from Margaret, requesting her to place bets on
Margaret’ behalf. During
cross-examination however, she stated
that she simply handed the phone to Makhoba without reading the text
message from Margaret.
10.4.
When
pressed further, she stated that there were team members who “were
sent to work on the field” and that they were
allowed to send
them messages from clients to print tickets on their behalf.
[4]
She says that a ticket expires after a certain period and that is why
she gave the mobile phone to Makhoba. The team manager and
managers
were aware of this and encouraged them to sell tickets in this way.
[11] Mathope
testified that it is not possible to log onto a system twice in a
day. When “relievers”
visit other branches, they do not
use their own login details but the details of mobile clerks from
that particular branch.
[12] Makhoba
testified that:
12.1. She
was employed by the applicant as a betting clerk. Insofar as field
work is concerned, betting clerks
attend do work in the field.
Betting clerks “were playing tickets on behalf of customers”.
A manager’s permission
is required to place bets in the field
on behalf of customers.
12.2. Under
cross-examination, she testified that she was dismissed because she
gave a ticket to a person
who was in the street before receiving
money for it. She conceded that placing credit bets were wrong.
12.3. When
questioned by the commissioner in respect of the credit bet in
question for which she was dismissed,
she mentioned that Margaret
assisted with facilitating the transaction and that she (i.e.,
Makhoba) did not receive the cash but
Margaret received the cash
(R150.00).
The
Award
[13] As
mentioned, the commissioner found the employee’s dismissal to
be procedurally fair but substantively
unfair.
[14] The
commissioner accepted that employees were not permitted to conduct
credit bets and that the employee
was aware of this rule. The
commissioner found that the employee did not place a credit bet but
her colleague, Makhoba did.
[15] Even
though the employee did not raise the issue of consistency at the
arbitration, the commissioner
implied that the applicant applied
discipline inconsistently. The commissioner stated that another
employee, Lerato was present
for a moment when Makhoba was placing
credit bets but “there was no indication of any disciplinary
actions taken against
her”. Presumably this was with
reference to the video footage which displayed Lerato verifying the
employee’s
cash balance when cashing up.
[16] The
commissioner accepted the employee’s evidence that she was not
aware if credit bets were placed
in her presence. The commissioner
found that the employee was working and did not see the credit bets.
The commissioner reasoned
that when the employee handed a mobile
phone to Makhoba, she would not have known if the message on the
mobile phone was for a
customer or for Makhoba’s “own
betting”. The commissioner stated that the employee just
happened to be there
when Makhoba placed the credit bets.
[17] The
commissioner found further that if the employee was aware that credit
bets were taking place, she
would have reported it. She found
that even if the employee witnessed credit bets, dismissal was not an
appropriate sanction
as she was not “associated” with
such conduct. Accordingly, the commissioner found that the employee’s
dismissal
was substantively unfair. However, the commissioner limited
her backpay to 12 weeks in that the employee did not “entirely
have clean hands”.
Grounds
of review
[18] The
applicant avers that the Award is one that is “not of a
reasonable and objective decision
maker, was unjustifiable in
relation to the reasons advanced and accordingly the arbitrator
exceeded her powers in terms of section
145(2)(a)(iii) of the Act,
and has committed a gross irregularity in the conduct of the
proceedings, including making mistakes
of law, resulting in her
misconceiving the nature of the enquiry, accordingly justifying the
reviewing and setting aside, alternatively
correcting, of the award
handed down by her”.
[19] In
its supplementary affidavit, the applicant makes an encompassing
statement that the commissioner’s
finding that the employee did
not commit the misconduct was not a finding that a reasonable
arbitrator could have come to.
[20] The
applicant takes issue with various findings in the Award. Much
of the detail in the applicant’s
supplementary affidavit
revolves around the contention that the employee was present when the
misconduct took place and failed
to report it. The applicant also
relies on video evidence that was led during the arbitration to
demonstrate that the employee
facilitated and witnessed credit bets
being placed.
[21] The
applicant also takes issue with the commissioner’s findings
that:
21.1. The
employee “did not associate with the misconduct, but she just
happened to be there in the
middle of her colleagues when the
incident took place”; and
21.2. It
applied discipline inconsistently.
Evaluation
Test
on review
[22]
The
Labour Appeal Court in
Securitas
Specialised Services (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration and Others
[5]
stated
thus in relation to the test on review:
“
[19]
The test for review is this: “Is the decision reached by the
arbitrator one that a reasonable decision-maker could not
reach?”
[6]
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 be unreasonable if it is entirely disconnected with the
evidence, unsupported by any evidence and involves speculation
by the
arbitrator
.
[7]
[20]
This Court has eschewed a piecemeal approach to a review application
by the Labour Court. The proper approach is for the Labour
Court to
consider the totality of the evidence in deciding “whether the
decision made by the arbitrator is one that a reasonable
decision-maker could make.”
[8]
[added emphasis]
[23] Accordingly,
this court is required to assess whether, based on the totality of
the evidence, the Award
is one that a reasonable decision-maker could
make.
[24] I
turn now to consider the grounds of review.
Employee’s
failure to report the misconduct
[25] The
applicant relies heavily on this ground of review. As mentioned
above, the applicant contends that
the employee had a duty in terms
of its disciplinary code to report misconduct.
[26]
At
this point, it is appropriate to consider the decision of
NUMSA
obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty)
Limited and Others
[9]
.
In
Dunlop
,
the Constitutional Court expanded on the principle dealing with
derivative misconduct. It is the doctrine which could see
the
dismissal of employees for their failure to report misconduct of
other employees, whose identity is not known to the employer.
[27]
The
court held that the duty to inform an employer of the identity of
perpetrators of misconduct arises from the duty of good faith.
It
also held that the duty to inform on employees is a two-way street
between the employee and employer. The court stated the
following:
[10]
“
Added
to the difficulty of factually inferring a duty of disclosure is that
the imposition of this kind of duty on the basis of
good faith can
never be unilateral
.
The duty to disclose must be accompanied by a reciprocal, concomitant
duty on the part of the employer to protect the employee’s
individual rights, including the fair labour practice right to
effective collective bargaining. In the context of a strike, an
employer’s reciprocal duty of good faith would require, at the
very least, that employees’ safety should be guaranteed
before
expecting them to come forward and disclose information or exonerate
themselves. Circumstances would truly have to be exceptional
for this
reciprocal duty of good faith to be jettisoned in favour of only a
unilateral duty on the employee to disclose information.
[added
emphasis]
[28] The
court accordingly held that in the context of a strike, the
employer’s concomitant reciprocal
duty of good faith entails
guaranteeing the employee’s safety.
[29] Importantly,
the court also determined the following:
“
This
immediate recourse to “derivative misconduct” in logic
and practice seems premature until all avenues of some form
of
individual and culpable participation in the collective violence are
excluded
.
Why? First, because the possible duty to disclose misconduct of
others only arises once that misconduct is established.
Second,
because it would be wrong to use the duty to disclose as an easier
means to dismiss, rather than dismissal for actual individual
participation in violent misconduct itself
.
And third, it may result in the imposition of a harsher sanction on
employees who did not take part in the actual primary
misconduct.”
[11]
[added
emphasis]
[30] By
this, the court held that it can only be fair to discipline an
employee for derivative misconduct
until it has been established that
the employee has
not
participated in the misconduct.
[31] In
my view, this ground of review faces two self-standing hurdles.
The first is that the evidence
demonstrated that the employee
“participated” in the primary misconduct (i.e. the
placing of credit bets). Indeed,
Ms Hufkie, who appeared for the
applicant, confirmed during argument that the employee “participated”
in the misconduct.
The employee permitted Margaret to place a
credit bet using her terminal. The employee also facilitated
Makhoba’s placing
of credit bets on her (i.e., Makhabo’s)
terminal. Accordingly, given that the employee participated in
the misconduct,
it was not appropriate for the applicant to have
disciplined and dismissed her for failing to report the misconduct
(as cautioned
by the court in
Dunlop
).
[32]
Secondly,
it is questionable whether the employee had a duty to report the
misconduct, given that the applicant was aware who the
perpetrators
were. The purpose of the doctrine is to assist employers identify the
perpetrators. See also for example
African
Meat Industry & Allied Trade Union &
others
v
Shave & Gibson Packaging (Pty) Ltd
[12]
,
where the employer made several requests to employees to identify
perpetrators of misconduct during a protected strike.
No
information was forthcoming, and the employer charged employees for
inter
alia
derivative
misconduct, convened a disciplinary hearing against them, found them
guilty and dismissed them. That the employer was
in a position to
identify the perpetrators of the misconduct, through for example
photographs, Whitcher J held that it logically
followed that “where
the employer had the means to obtain the information, there would
have been no ground to burden the
employees with a duty to provide
the information”.
[13]
[33] In
the circumstances, this ground of review stands to fail. It is
therefore unnecessary for me to determine
whether the applicant has
complied with its concomitant reciprocal duty of good faith for
having required the employee to report
the misconduct (including what
it entailed). Even if I am wrong that the derivative misconduct
doctrine does not apply to
the facts of this case, I still believe
that this ground of review stands to fail. In my view, the rule
requiring the employee
to report the misconduct would be unreasonable
or weigh heavily as mitigating factors for the very reasons mentioned
in the above
two paragraphs.
Finding
that employee did not associate with the misconduct
[34] As
mentioned above, the applicant charged the employee for failing to
report the misconduct (i.e., the
credit bets). However, at the
arbitration proceedings, in its opening statement, the applicant’s
representative, Mr
Botha stated
inter
alia
that:
“
The
actions or omissions of the employee was not acting in the best
interest. She therefore failed in her fiduciary duty towards
the company, and placed the company at risk. By risk, the witnesses
will be testifying as to what the financial risk would have
been.
They
will be explaining what is meant by credit betting,
and
how this lady was actually an accomplice through the misconduct of
fellow employees
”
.
[14]
[added emphasis]
[35]
The
Labour Appeal Court (LAC) in
EOH
Abantu (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[15]
held
that employers may rely on competent verdicts at arbitrations or
disciplinary hearings provided that employees are not prejudiced.
The LAC held that prejudice would arise if an employee is unaware of
the case the employee has to meet. There can be no prejudice
“if
the record shows that had the employee been alerted to the
possibility of a competent verdict on a disciplinary charge
he would
have conducted his defence any differently or would not have had any
other defence”.
[16]
[36] One
therefore firstly has to consider whether a charge of being an
accomplice is a competent verdict
to the main charge (i.e., failing
to report the credit bets). The Law of South Africa (LAWSA) defines
competent verdicts as follows:
“
When
the evidence does not prove the offence charged, but it does prove
another offence which does not appear on the charge sheet
as an
alternative, the court may convict of the other offence if it is a
competent verdict. Competent verdicts are the lesser offences
implied
by the main charge. A conviction of the lesser offence is permissible
only when the main charge has not been proved.”
[17]
[37] Joubert
however, favours a definition which includes not only a lesser
offence but also one that is
“akin” to the crime not
proved. He states that:
“
It
is possible that the evidence might fall short of proving the crime
charged, but nevertheless succeeds in proving beyond reasonable
doubt
the commission of some other offence not specifically formulated as
an alternative charge . . . to the charge in the indictment
or
charge-sheet, as the case may be. This type of situation is
governed by the statutory rules pertaining to so-called competent
verdicts, that is, the unexpressed or latent or implied charges which
only surface once the crime charged is not proved but some
other
crime,
which
is normally lesser than or akin to the crime charged, is proved
.”
[18]
[38] In
EOH
,
the employer charged the employee for acting dishonestly but
dismissed the employee for gross negligence. The employee challenged
his dismissal at the CCMA. The arbitrator found the employee’s
dismissal to be substantively unfair in that he had not been
charged
for gross negligence. The commissioner also noted that “the
test for dishonesty and negligence are mutually
destructive”.
EOH took the matter on review, which this court dismissed.
[39] In
upholding the appeal, the LAC accepted that the evidence established
that the employee was at least
negligent. It failed to see how his
evidence would have been any different, including submissions in
mitigation and aggravation
had he been charged with negligence.
[40]
In
my view, the charge of being an accomplice to the misconduct is a
competent verdict in that it is lesser than or akin to the
main
allegation of misconduct. In
casu
,
the employee was not prejudiced by being an alleged accomplice. She
was alerted to this allegation of misconduct at the commencement
of
the hearing. Furthermore, as will be shown, the employee’s
defence would have been no different whether in respect of
not
reporting credit bets or being an accomplice to it. In any
event, there are also elements of an allegation of being an
accomplice mentioned in the charge sheet. The first allegation of
misconduct specifically states that the employee permitted a
team
member to print credit bets on her terminal, using her login details.
It must be restated that employers are not skilled legal
practitioners and sometimes define or restrict allegations of
misconduct too narrowly or incorrectly.
[19]
The LAC has also cautioned courts and arbitrators against adopting a
formalistic or technical approach.
[20]
[41] Burchell
describes an accomplice as:
“…
one
who takes part in the commission of the crime, but not as a
perpetrator or an accessory after the fact. Accomplice liability
is
distinct from that of the perpetrator, being based on the
accomplice’s own unlawful conduct and fault (mens rea), but
it
is also liability which is accessory in nature in that there can be
no question of accomplice liability without the existence
of a
perpetrator who commits the crime”.
[21]
[42]
Below
is a summary of what he outlines as the elements for being an
accomplice:
[22]
43.1. Causal
relationship: there must be a causal relationship between the
accused’s conduct and the
unlawful consequence. He states
that: “It is arguable that both factual and legal causation are
required for perpetrator
liability, but only factual causation in the
sense of ‘furthering’ or ‘assisting’ in the
commission of
the crime is necessary for accomplice liability”.
43.2. Omission:
the mere failure to prevent the commission of a crime does not entail
liability, and the
passive spectator is not penalised. He notes that
where inaction amounts to “participation” in the crime
itself, or
assistance, authorisation or encouragement of the
perpetrator, he or she may be an accomplice.
43.3. Knowledge:
An accomplice is liable for the part he or she plays in the
perpetrator’s crime. It
does not matter if the perpetrator does
not know of the accomplice’s assistance.
43.4. Degree
of accessoriness: Here, someone else must have committed the crime.
In other words, a person
cannot be an accomplice to his or her own
crime.
43.5.
Fault (
mens rea
):
He notes that it would be sufficient if the accused foresaw the
possibility that the principal offender’s crime was being
or
was about to be committed and, accepting this risk into the bargain,
went ahead and furthered or assisted in the commission
of that crime.
This, with the proviso that the accused must have known that his or
her conduct was unlawful.
[43] I
am satisfied that the employee acted as an accomplice in respect of
the credit bets that were placed.
The crux of this form of misconduct
constitutes dishonesty.
[44] The
employee knew or was reasonably expected to be aware what credit bets
were and that it was not permitted
in the applicant’s
workplace. The employer led evidence at the arbitration that it
trains employees in respect of its
disciplinary code twice a year and
regularly reminds employees against placing credit bets. It is
improbable that the employee
was not aware that credit bets were
impermissible, especially because she had been in the applicant’s
employ for 6 years
prior to her dismissal. In any event, the
commissioner found that the employee was aware that credit bets were
impermissible.
[45] During
the employee’s evidence, she first attempted to distance
herself from the misconduct and
then to justify it. She stated
that the “charges did not belong to her”. She conceded
under cross-examination
that her version at the disciplinary hearing
was that she handed Makhoba a mobile phone indicating a message from
Margaret, requesting
Makhoba to place bets on her behalf. The
employee testified that she simply handed the phone to Makhoba
without reading the text
message. It is unlikely that the
employee would not have read the text message before handing the
phone to Makhoba. She clearly
facilitated the misconduct in this way
and thereafter witnessed Makhoba place credit bets (this is also
evident from the video
footage). As it was put to the employee by the
applicant’s representative, tickets were being “spewed
out” of
Makhoba’s terminal and there was no exchange of
cash for the tickets. Makhoba too, in her testimony confirmed that
credit
bets were wrong and that cash for the bets were not placed at
the time.
[46] The
employee also permitted Margaret to place a credit bet on her
terminal. This is also evident from
the video footage and the
employee did not deny this. It seems that the employee again
attempted to distance herself from this
act. Her evidence was that it
was permissible to share login details. That explanation does not
assist the employee, given that
she permitted Margaret to utilise her
terminal to print a credit bet. There appears to be no reason
why Margaret was allowed
to use the employee’s terminal for
this purpose. The employee’s conduct clearly established a
causal relationship to
the “unlawful consequence” (i.e.,
the credit bets).
[47] In
attempting to justify the placing of credit bets the employee’s
testimony was that was the
way they worked. The employee’s
evidence was that credit bets were permissible when employees do
“field work”
by placing bets for customers offsite. The
applicant stated that the only exception to the rule against credit
bets is when there
is an event and there is no machine to send a
voucher, but that this only occurred once at an event at the
Vereeniging Correctional
Service. If the credit bets placed by
Margaret and Makhoba were for legitimate business purposes offsite,
it is unlikely that the
applicant would have disciplined the
employee.
[48] The
employee also acted with the requisite
mens
rea
. She permitted Margaret to place
a credit bet using her terminal. She also facilitated the credit bets
that Makhoba placed. She
handed her a mobile phone to enable her to
do so. Under cross-examination the employee stated that:
“
MS
MOKOENA: I gave Sibongile the message that came from Margaret, so it
was her choice to play the numbers or not”.
[23]
[49] The
employee thus conceded that she had foreseen that Makhoba may place
the credit bets. The employee
foresaw that the misconduct could
occur, she facilitated and witnessed it.
[50] On
these facts, it cannot be gainsaid that the employee was an
accomplice to the misconduct. She was
dishonest in her conduct in
furthering or assisting her colleagues to conduct credit bets.
It is also clear that the employee
would not have conducted her
defence any differently or would have had a different one had she
only been charged with failing to
report the misconduct. In sum, her
version was that she disputed that credit bets were impermissible and
attempted to justify why
they were placed. This defence would not
have been any different if she was only charged with failing to
report the misconduct
or being an accomplice.
[51]
Now
that it is established that the employee acted as an accomplice, does
that mean that the award is reviewable. I think so. The
employee was
dishonest. Her conduct constitutes a serious infraction and must be
viewed within the context in which the rule against
credit bets
operates in the applicant’s workplace. Van Niekerk J (as he
then was) in
King
Price Insurance Company Ltd
[24]
restated
the high premium on honesty in the workplace and that it compromises
the trust relationship. He states that: “…This
court has
long held that in the employment relationship, a premium is placed on
honesty and that conduct involving moral turpitude
compromises the
trust relationship between employer and employee…”.
[25]
[52] The
employee also displayed no remorse throughout the proceedings for her
conduct and only attempted
to shift the goal post. This serves as a
further indicator why the trust relationship between the parties
cannot be salvaged. The
mitigating factors in this case, which is the
employee’s length of service and the fact that at the end of
the day, the cash
in her terminal balanced, unfortunately cannot aid
her under these circumstances.
[53] On
a conspectus of the above, I am inclined to uphold the applicant’s
review application.
I do not believe that the commissioner
arrived at a decision that a reasonable decision maker could have
arrived at. In short,
the outcome arrived at in the award is
unreasonable. It is disconnected with the evidence that was before
the commissioner, unsupported
by any evidence and involves
speculation by the commissioner.
[54] It
is accordingly unnecessary to consider the applicant’s further
challenge to the award insofar
as the commissioner’s finding of
inconsistency is concerned. Suffice to state to that to the
extent that the commissioner’s
finding of inconsistency
influenced the outcome of the award, the applicant correctly avers
that it was not allowed an opportunity
to deal with this finding.
Consistency was also not in dispute at the arbitration.
[55] Lastly,
I do not believe this matter ought to be re-considered by a different
arbitrator. There is little
point in remitting the matter for a
rehearing. All of the relevant evidence is before this court
and thus an order of substitution
finds warrant.
[56] In
the premises, the following order is made:
Order
1. The
arbitration award under case number GAVL3546-20 is hereby reviewed
and set aside.
2. The
arbitration award is substituted by the following:
“
The
dismissal of the third respondent was substantively and procedurally
fair”.
3. There
is no order as to costs.
MI
Savant
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant :
Ms Cora Hufkie, Macgregor Erasmus Attorneys
[1]
No.
66 of 1995, as amended.
[2]
Unless the context indicates otherwise, the second respondent will
be referred to as “commissioner”.
[3]
Unless the context indicates otherwise, the third respondent will be
referred to as “employee”.
[4]
[4]
I understand that reference to “field work” refers to
work outside of the applicant’s premises.
[5]
(2021) 42 ILJ 1071 (LAC).
[6]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) para
110.
[7]
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[2012]
BLLR 1074
(SCA) paras 12 and 13
.
[8]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)
at paras 17 and 18
.
[9]
(2019) 40 ILJ 1957 (CC).
[10]
See paragraph 76 of the judgment.
[11]
See paragraph 45 of the judgment.
[12]
(2024) 45 ILJ 79 (LC).
[13]
Paragraph 112 of the judgment.
[14]
Page 8, volume 1 of the transcript of the record, lines 3 to 8.
[15]
(2019) 40 ILJ 2477 (LAC);
[2019] 12 BLLR 1304
(LAC) at paragraphs 16
and 17.
[16]
See paragraph 17 of the judgment (footnotes omitted).
[17]
The LAWSA, Criminal Procedure, vol 12, 3
rd
edition, D Smythe, J
Omar paragraph 179 (footnotes omitted).
[18]
Joubert (ed) Criminal Procedure Handbook 10 ed (Juta & Co Ltd,
Cape Town 2011) at 302. See also
Phakane
v S
2018
(4) BCLR 438
(CC) (5 December 2017), where the minority judgment
referred to this excerpt, though noting that the purpose of the
competent
verdict is to “provide the state with the ability to
prosecute an individual for a lower crime”.
[19]
See
EOH
at paragraph 16.
[20]
Ibid. paragraph 15.
[21]
Jonathan Burchell, Principles of Criminal Law, revised (3
rd
ed), 2006, page 599.
[22]
Ibid. pages 600 to 605 (any footnotes omitted).
[23]
Page 26, lines 6 and 7 of the transcript (record) bundle, volume 2.
[24]
(JR 2055/2020) [2023] ZALCJHB 101 (17 April 2023).
[25]
At paragraph 15 of the judgment.