Nedcor Bank Ltd v Frank and Others (DA4/01) [2002] ZALAC 11 (8 May 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2002
>>
[2002] ZALAC 11
|

|

Nedcor Bank Ltd v Frank and Others (DA4/01) [2002] ZALAC 11; [2002] 7 BLLR 600 (LAC); (2002) 23 ILJ 1243 (LAC) (8 May 2002)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
( HELD at JOHANNESBURG )
REPORTABLE
CASE
NO: DA4/01
In the
matter between:
NEDCOR
BANK LTD
Appellant
and
CYRIL
FRANK
First Respondent
KOVILAN
SARUGASER
Second
Respondent
SASBO
Third Respondent
COMMISSIONER
S.M. GOVENDER
Fourth Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION (“CCMA”)
Fifth Respondent
JUDGMENT
WILLIS
JA:
[1] This is an appeal
against a judgment of the Labour Court (
per
Pillay J.)
dismissing an application to review an arbitration award. The Court
a
quo
granted leave to appeal to this Court.
[2]
The first respondent had been employed by the appellant as an “ATM
(Automatic Teller Machine) Custodian”. Among his responsibilities
was to ensure that the ATM at the Durban Airport remained
operational, was available to the appellant’s customers at all
times
and that all problems connected therewith be “ escalated”
(i.e. reported and followed up) with his immediate superior, the
second
respondent.
[3]
The second respondent had been employed as an “ATM Controller.”
Among his responsibilities was supervision and control of
the first
respondent and all other ATM custodians in the Durban area. He was
obliged to “ escalate” all problems
which had
been “escalated” to him and which he was unable to solve to Mr
John Waters, the appellant’s National Manager, Operations:
Electronic Banking Retail Operation. In order to avoid the use of
esoteric jargon, I shall use the words “report” and “reported”
for “escalate” and “escalated” respectively.
[4]
Two of the appellant’s general managers attempted to draw cash from
the appellant’s ATM at the Durban Airport during the
evening of
Sunday, 5
th
July, 1998. This was the Sunday after the “Durban July Handicap “
and the airport had been particularly busy over that week-end.
Although the ATM appeared operational, it did not dispense any cash.
The general managers reported the matter, which led to an
investigation.
It transpired that the first respondent had disengaged
the card-reader (“the card”) of the ATM as a result of the ATM
having
run out of cash earlier that evening. The effect of this was
that the ATM would have appeared to have been operational but would
not have been able to process any transactions, including the
dispensing of any cash. By reason of the disengagement of the card,
the appellant’s monitoring system was unable to detect that the ATM
was not, in fact, operating. The first respondent re-engaged
the card
on the morning of Monday, 6
th
July 1998 at the time when the ATM was reloaded with cash.
[5] A disciplinary
enquiry was held at which the first respondent was charged as
follows: “Dishonesty- On 5
th
July 1998 you deliberately
and knowingly disengaged the card reader denying access to our
clients in the knowledge that monitoring
would not discover an
escalated fact that the ATM would not have sufficient cash.” He was
found guilty and dismissed.
[6] Similarly, a
disciplinary enquiry was held at which the second respondent was
charged as follows: “Dishonesty- On 5
th
July 1998 you
deliberately and knowingly allowed your custodian C Frank (
i.e.
the first respondent
)
to disengage the card reader denying
access to our clients in the knowledge that monitoring would not
discover an escalated fact that
the ATM would not have sufficient
cash.” He, too, was found guilty. The second respondent was also
charged with “ not adhering
to laid down policy and procedures.”
He was also found guilty on this charge. Consequent upon these
findings of guilt, he was dismissed,
no separate sanction having been
imposed in respect of the different charges.
[7]
The respondents referred their dispute of an alleged unfair dismissal
to the fifth respondent, the CCMA. At the request of the
parties, the
matters of the alleged unfair dismissals of the first and second
respondent were consolidated. After an unsuccessful
conciliation, the
first and second respondents requested that the dispute be resolved
through arbitration under the auspices of the
CCMA. The arbitrator
found that the appellant had failed to prove dishonesty on the part
of either the first or second respondent
and ordered the appellant to
reinstate the respondents.
[8]
The appellant then brought an application to review the award of the
arbitrator in terms of section 145 of the Labour Relations
Act, No.66
of 1995,as amended. The Court
a quo
found the award
justifiable and dismissed the application. Indeed, the Court
a quo
seemed to endorse the finding that dishonesty on the part of
either the first or second respondent was unproven.
[9] During the course of
Sunday, 5
th
July 1998 the appellant’s monitoring systems
section alerted the first respondent that there was a problem with
the ATM in question
and he ascertained that the machine had run out
of cash. It is common cause that it would not have been possible to
load the machine
with cash on that day, it being a Sunday. Those who
actually did the loading did not work on Sundays. It was also the
appellant’s
policy that cash should not be transferred between
ATMs. The first respondent reported the problem to the second
respondent. The
first respondent together with the second respondent
decided not to leave the ATM in the condition it was because this
would have
alerted the airport’s management that the ATM was
inoperative. There had been ongoing problems with the ATM being
inoperative and
signalling that it was out of order. This led to
complaints by the management of the airport. By this is meant those
responsible
for the operation of the airport itself and not the
management of the appellant.
[10]
It was the first respondent who suggested to the second respondent
that they should disengage the card so that the ATM would
give the
impression that the ATM was online and in working order. This would
have had the effect that a “red screen”, which had
led to so many
complaints, would not have shown up. The first and second respondents
claimed that the motive behind their having
resorted to this device
was to protect the appellant from the wrath of the management of the
airport. Whether the card was engaged
or not, the effect for
customers of the appellant would have been exactly the same: the
machine would have been inoperative and they
would not have been able
to withdraw any cash.
[11] It is common cause
that a code 997 would have appeared at the monitoring systems section
indicating that for a period of sixteen
hours no transactions were
processed at this particular
ATM. It is common cause that no
one at the monitoring systems section followed this up. It is common
cause that the first respondent
was fully aware at the time that the
code 997 would have alerted the monitoring systems section that there
was something amiss at
the ATM at the airport. It was common cause
that customers of the appellant could have reported the failure of
the ATM to operate.
It is thus clear that there was no attempt to
conceal a material fact from the appellant or the appellant’s
customers. An attempt
was made to conceal from the management of the
airport that the machine was not operating. As mentioned above, the
first and second
respondents claim an altruistic motive in this
regard: shielding the appellant from the wrath of the management of
the airport.
[12] It is common cause
that it was only on 6
th
July, 1998, that the appellant
introduced a formal rule prohibiting conduct of the kind resorted to
by the first and second respondent.
Each of the first and second
respondents denies having known of any policy or practice directive
prohibiting their conduct before
this formal rule was introduced. The
appellant seems to accept that this may be true. There is no
justification for coming to a different
conclusion. In the light of
this, the second respondent was wrongly found guilty on the second
charge.
[13]
It is clear that when the cat was set among the pigeons on the
morning of 6
th
July, 1998, the second respondent panicked and attempted to distance
himself from the conduct of the first respondent. This does
not
reflect well on his honour. He did not face any disciplinary charges
in this regard. When the feathers had settled, he spoke
the truth.
[14]
When the evidence is viewed in its totality, the explanation of both
the first and second respondent for their conduct: that
they wished
to shield the appellant from the wrath of the management of the
airport is entirely plausible. No other reason suggests
itself.
[15]
Dishonesty entails a lack of integrity or straightforwardness and, in
particular, a willingness to steal, cheat, lie or act fraudulently.
(
See,
Toyota SA Motors SA
(Pty) Ltd v Radebe & Others
(2000)
21 ILJ 340 (LAC) at 345F-H;
R
v Brown
1908 TS 21
;
R v White
1968 (3) SA 556
(RAD)
Ex
parte
Bennett
1978
(2) SA 380
(W) at 383H-384C;
S
v Manqina; S v Madinda
1996
(1) SACR 258
(E) at 260e-h and the
Oxford
Dictionary
.) In the
Canadian case of
Lynch &
Co v United States Fidelity & Fidelity & Guaranty Co
[1971] 1 OR 28
at 37,38, Ont SC, the following was said: (
per
Fraser J):
‘
“ Dishonest”
is normally used to describe an act where there has been some intent
to deceive or cheat. To use it to describe
acts which are merely
reckless, disobedient or foolish is not in accordance with popular
usage or the dictionary meaning
.’
Certainly, insofar as the appellant or its customers are concerned,
no intention to steal, cheat, lie or act fraudulently is
manifest.
And what of the intention to conceal the true state of affairs from
the management of the airport? That is not covered
by the charge
.
In any event it is, to my mind, impossible for the appellant to claim
that as a result of the first and second respondents’ conduct,
the
relationship of trust between them and the appellant has been
destroyed. (See, for example,
Council
for Scientific & Industrial Research v Fjen
1996
(2) SA 1
(A) at 9H-J
[1995] ZASCA 143
; ;
[1996] 2 All SA 379
(A) at 385j;
Central
News Agency (Pty) Ltd v Commercial Catering & Allied Workers &
Another
(1991) 12 ILJ 340
(LAC) at 344F-G;
Anglo
American Farms t/a Boschendal Restaurant v Komjwayo
(1992)
13 ILJ 573 (LAC) at 589B-590F;
Lahee
Park Club v Garratt
[1997]
9 BLLR 1137
(LAC) at 1139I;
Sappi
Novoboard (Pty) Ltd v Bolleurs
(1998)
19 ILJ 784 (LAC) at 787E-I;
Leonard
Dingler (Pty) Ltd v Ngwenya
(1999)
20 ILJ 1171 (LAC) at 1190 J-1191D;
Toyota SA Motors SA (Pty) Ltd v Radebe & Others
(2000)
21 ILJ 340 (LAC) at 352C-E.)
[16 The decision of the
arbitrator and the Court
a quo
cannot be faulted.
[17]
The following order is made:
The appeal is dismissed
with costs.
DATED
AT JOHANNESBURG THIS DAY of MAY 2002.
N.P.
WILLIS
JUDGE
OF THE LABOUR APPEAL COURT
I
agree.
R.M.
M. ZONDO
JUDGE-PRESIDENT
OF THE LABOUR APPEAL COURT
I
agree.
D.
VAN REENEN
ACTING
JUDGE OF THE LABOUR APPEAL COURT
Counsel
for Appellant:
LCA Winchester SC
Attorneys
for Appellant: Smit Hauptfleisch Attorneys
Counsel
for Respondent:
JG Rautenbach
Attorneys
for Respondent: Willemse Benade Smit.
Date
of hearing: 20t
h
November, 2001
Date
of Judgment: 8th May, 2002