About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2009
>>
[2009] ZALAC 30
|
|
Narainsamy v Mutual & Federal Insurance Company Ltd (DA 8/07) [2009] ZALAC 30 (12 February 2009)
1
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Durban
Case no: DA 8/07
In the matter between
N. Narainsamy
...................................................................................
Appellant
And
Mutual & Federal Insurance Company Ltd
...............................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
ZONDO JP
Introduction
[1] This is an appeal from a judgment of the Labour
Court in an application that had been brought by the respondent to
have reviewed
and set aside an arbitration award that had been issued
by the Commission for Conciliation, Mediation and Arbitration (“
the
CCMA
”) through one of its commissioners, B. Pillemer. The
arbitration award related to a dispute that the appellant had
referred
to the CCMA for conciliation which was later followed up
with arbitration when conciliation failed to produce a resolution.
The
dispute was between the appellant and first respondent and was
about the fairness or otherwise of the appellant’s dismissal
by
the first respondent. The reference to the first respondent is a
reference to Mutual and Federal Insurance Company Ltd, the
appellant’s former employer. Although the record and the
parties’ heads of argument reflect Mutual and Federal Insurance
Company as the only respondent, and in that way give the wrong
impression that this matter relates to a trial in the Labour Court
as
opposed to a review application, there were two other parties in the
Court below, namely, the Commission for Conciliation Mediation
and
Arbitration and the commissioner who arbitrated the dispute. They
were the second and third respondents respectively. The commissioner
found that the appellant’s dismissal was unfair and ordered the
first respondent to reinstate the appellant retrospectively.
[2] The first respondent was aggrieved by the
arbitration award. It brought an application in the Labour Court to
have the arbitration
award reviewed and set aside. The appellant
opposed that application. The review application was successful and
the arbitration
award was set aside. The appellant, aggrieved by this
outcome of the review application, applied unsuccessfully to the
Labour Court
for leave to appeal. It subsequently petitioned the
Judge President of this Court for leave to appeal and this Court
granted her
leave to appeal against the whole of the judgment of the
Labour Court. Before considering the appeal, it is necessary to set
out
the facts of this case.
The facts
[3] The facts of this case are brief and largely common
cause. In the arbitration before the third respondent the parties
handed
in an agreed set of facts. The appellant was employed by the
first respondent in 1994. She was dismissed from the first
respondent’s
employment on the 24
th
May 2003. At the
time of her dismissal, the appellant was employed as a cashier.
[4] In December 2002 the appellant indicated to one
Clements who was superintendent, Durban Accounts, that she would like
to have
leave from the 28
th
March to the 7
th
April 2003. Clements indicated that leave “
would be
authorised closer to the time
”. The quoted part of this
sentence is taken from par 6 of the agreed statement of facts between
the parties. The quoted part
was not relied upon to suggest that the
appellant was by virtue thereof granted leave for the period that she
had requested. It
must be taken to mean that consideration as to
whether or not authorisation for that period should be granted was
going to be given
closer to the period requested.
[5] In February 2003 the appellant was informed by way
of an e-mail from Vanessa Jacobs, her immediate superior, and Section
Head,
Accounts Department, that she would not be allowed to take
leave during the period that she had requested, that is, 28 March –
7 April 2003. As an alternative she was offered leave for the period
1-9 April 2003. She was not happy with this response to her
request.
She thereafter made representations to one Roxana Vahed who was the
Accounts Superintendent as a result of which Vahed
granted the
appellant leave for the period 28 March – 2 April 2003. The
appellant made further attempts to obtain the 3
rd
and 4
th
April as leave but these were unsuccessful.
[6] Before going on leave the appellant informed
Clements that she might not be able to return to work on the 3
rd
April. An arrangement was then made between the two that in the event
of such eventuality materialising, the appellant would telephone
Ms
Jacobs on the morning of the 3
rd
April. She went away on
leave. On the 3
rd
April 2003 she asked her brother-in-law
at about 07h30 to call Jacobs and advise her that she would not be at
work on that day
and would be back at work only on the 7
th
April. This meant that she was to be away for the full period for
which she had wanted leave including days for which no authorisation
for leave had been granted.
[7] The appellant returned to work on Monday the 7
th
April 2003. She then filled in a form for an application for leave in
respect of the 3
rd
and 4
th
April 2003 as the
leave that she had been granted was for up to the 2
nd
April 2003. She handed the completed form to Heather Fountain who was
“
Acting Branch Manager
”, Durban Accounts, who
signed it at a later stage.
[8] On the 8
th
April 2003 a disciplinary
inquiry was convened in which the appellant was charged with absence
from work on the 3
rd
and 4
th
April without
authorisation. The appellant had been away on a holiday at Sun City
during her leave and on the 3
rd
April. On the 4
th
April she returned to Durban. In order to obtain the leave that Vahed
granted, the appellant had lied and said that she needed
to be in
Johannesburg in Court in connection with the appearance in Court of
suspects in the case relating to the murder of her
brother. This was
what she had said to Vahed but the truth was that she was going on a
holiday – and to Sun City –
not Johannesburg.
[9] In the disciplinary hearing of the 8
th
April 2003 the appellant repeated to Clements and Fountain the lies
she had told Vahed about what she wanted leave for. The appellant
said that on the 23
rd
April 2003 she was “
in
Court ( in Johannesburg all day…and was unable to make the
call to the company
)” and “
(her) legal
advisor…stepped out of the Court room to make the call
”.
The appellant was not disciplined for her absence from work and she
was asked to keep the inquiry confidential. The version
that the
appellant told the inquiry was all a lie. The appellant had not been
in Court and the person who she asked to telephone
the company was
not her legal advisor but her brother-in-law. Accordingly, it was not
true that that person had “
stepped out of the Courtroom”
to make the call to the company.
[10] Clements was away on leave from the day after the
disciplinary inquiry until the 29
th
April 2003. Upon her
return to work she and Foutain discussed the explanation which the
appellant had given them in the disciplinary
inquiry for her absence
from work on the 3
rd
and 4
th
April. A decision
was taken to report the matter to Mr Gary Slater of the Forensic
Department on the 14
th
May 2003. This was done. Thereafter
Slater formulated a number of questions which were to be handed to
the appellant to answer.
The questions related to her explanation for
her absence from work. These included the identification of the Court
that she had
said she had attended, the furnishing of the case
number, whether she was a material witness in the case and whether
the legal
advisor who had called on her behalf on the 3
rd
April was a practising attorney. The appellant’s response was
that she could not provide a case number, could not say which
court
she had attended and that she had been unable to make the call
herself on the 3
rd
April because she was in court. In
other words the appellant continued with her dishonesty and
perpetuated the lies she had previously
told.
[11] Slater was not satisfied with the appellant’s
response to his questions which the appellant provided. On the 20
th
May the appellant was suspended from work on full pay pending a
disciplinary inquiry. On the 23
rd
May she was charged with
“
serious misconduct arising out of gross dishonesty in that
on or about 8 April 2003 you made false statements to your superior
relating
to your whereabouts on 3 and 4 April 2003 thereby
irretrievably damaging the trust relationship
”. The
disciplinary inquiry was held on the 13
th
June 2003. The
appellant did not “
come clean
” but persisted in
her act of dishonesty and in effect insisted that her story was the
truth when it was in fact a lie. She
was found guilty. On the 24
th
June 2003 she was summarily dismissed.
Arbitration
[12] In a subsequent CCMA arbitration before the third
respondent the appellant admitted for the first time that what she
had told
her superiors and in effect the explanation she had given at
the disciplinary inquiry of the 8
th
April was a lie. In
effect she admitted having acted dishonestly. The parties simply
asked the commissioner to decide what the
appropriate sanction was or
should have been. This means that in effect the question that the
commissioner was called upon to determine
was whether dismissal as a
sanction had been appropriate in this case.
[13] I have already said above that the commissioner
found dismissal to have been substantively unfair in this case, that
she ordered
the reinstatement of the appellant and said that her
award was to serve as a written warning to be placed in the
appellant’s
file.
Labour Court proceedings
[14] In the review application that was brought before
the Labour Court, the first respondent attacked the award on a number
of
grounds. The Labour Court, per Gush AJ, granted the review
application and set aside the arbitration award. Quite correctly,
Gush
AJ viewed the appellant’s misconduct very seriously which
was different from the way that the commissioner had viewed the
misconduct. In para 13 of his judgment Gush AJ said of the
commissioner’s conclusion:
“
The 2
nd
respondent’s
conclusion that she could not see why the applicants Fountain and the
3
rd
respondent could not
work together or why the employment relationship had broken down,
demonstrates a misunderstanding of the consequences
of the 3
rd
respondents conduct.
Dishonesty goes to the root of the employment contract and the
applicant was entitled to take the view it did.
The question is not
whether Fountain and the applicant can work together but rather
whether the trust relationship between the
applicant “the
employer” and the 3
rd
respondent had been
destroyed.”
[15] Then in paragraphs 15 and 16 of his judgment Gush
AJ said:
“
[15] It appears as if the
2
nd
respondent sought to justify her imposition of a written warning, in
place of dismissal, by playing down the extent to which the
third
respondent had been dishonest. She refers to her as “not a good
liar” and that “she chose to fib”.
The evidence
suggests the nature and extent of the dishonesty of the 3
rd
respondent was far more serious than merely a fib, by an incompetent
liar.
[16] The 2
nd
respondent concludes that the
sanction of dismissal induces a sense of shock. This conclusion
however stands in stark contrast
to the references in the record that
the third respondent persistently maintained that the reason she
continued to lie (and embellish
the lie) was that she believed that
she would lose her employment if she confessed to the original lie.
It is clear therefore that
both the applicant and the 3
rd
respondent understood the consequences of her action to be a probable
dismissal. The 3
rd
respondent could not on her own
evidence have been shocked by her dismissal. For the 2
nd
respondent then to be shocked, in these circumstances is neither
warranted nor justified.”
As I have already indicated above, Gush AJ reviewed and
set the arbitration award aside.
The appeal
[16] In the arbitration the first respondent led the
evidence of Fountain. The appellant also gave evidence in support of
her claim
of unfair dismissal. The oral evidence was in addition to
the statement of agreed facts that the parties submitted to the
commissioner.
The commissioner concluded that dismissal as a sanction
was inappropriate and unfair and ordered that the appellant be
reinstated
and paid compensation. She ordered that her award be
deemed to be a written warning for the appellant’s misconduct.
[17] The commissioner said in her award that Fountain
testified that, if the appellant had, on returning from leave, “
come
clean
” and admitted her dishonesty, she would have given
her a warning and docked two days’ pay from her salary. The
commissioner
said that this was of great significance to her. She
said:
“
Of great significance to me
is that fact that for the more serious misconduct of taking extra
leave, when this was expressly refused,
the [first] respondent did
not consider that such warranted dismissal and intended to impose a
written warning, irrespectively
of the explanation. It is against
that norm that the sanction for giving a false reason for taking
leave must be assessed.”
The commissioner’s reference to taking extra leave
when this had been expressly refused is a reference to the 3
rd
and 4
th
April when the appellant was supposed to be back
at work but did not return to work. The commissioner says that the
misconduct
of being absent from work when permission to be absent
from work had been expressly refused is more serious than the act of
dishonesty
that the appellant committed. I take a different view. In
my view an act of dishonesty is far more serious than absence from
work
despite an express refusal of authorisation for leave.
[18] The commissioner also said that she also took into
account “
the Respondent’s disciplinary code and
procedure which lists dishonesty largely as actions of fraud and
misappropriation (certainly
very different to fabricating reasons for
leave and which also recommends that the Respondent implement a
process of ‘progressive
discipline’ when determining a
sanction
.” I am not sure what the commissioner was
referring to in this regard because the first respondent’s
disciplinary code
has got SD – which I think stands for summary
dismissal - for all acts of dishonesty listed therein. The code makes
it clear
that the list of acts of misconduct is not exhaustive.
Accordingly, the disciplinary Code does not support the
commissioner’s
decision not to confirm dismissal as a fair
sanction for such misconduct.
[19] The commissioner also took into account the fact
that the appellant had a clean disciplinary record over nine years of
service
at the time of her dismissal. In my view, where an employee
is guilty of serious dishonesty or an act of “
gross
”
dishonesty, then as a general rule his or her length of service or
her clean record does not weigh much. There may be exceptions
to this
but, without any doubt, this case does not fall under any such
exceptions. The appellant was dishonest to Vahed when she
provided
the false reason she advanced to her in order to obtain a longer
leave. She was also dishonest when she said that her
brother-in-law
was her legal adviser. She was dishonest when she said that she had
been in Court in Johannesburg.
[20] The appellant returned from leave and continued
with her dishonesty in the disciplinary inquiry of the 8
th
April 2003. Subsequently, in answering Slater’s questions the
appellant continued with her dishonesty. A second disciplinary
inquiry was called and she persisted with her dishonest conduct.
After the disciplinary inquiry she still did not “
come
clean
”. When she referred the dismissal dispute to the
CCMA, she still did not “
come clean
”. She only
admitted her dishonesty at the arbitration.
[21] In my view, when regard is had to all the
circumstances of this case, the appellant made herself guilty of
extremely serious
misconduct involving gross dishonesty. This was
connected with her work because it was directed at her employer and
was done so
that she could obtain some employee benefit i.e. leave
which she was otherwise not going to get at the time that she wanted
it.
She was employed as a cashier and, apparently, worked without
supervision. This meant that the employer needed to trust her even
more than may have needed to be the case if she worked under
supervision.
[22] Counsel for the appellant sought to argue that it
is a mitigating factor that the appellant took the step of having the
company
telephoned on the 3
rd
April 2003 to advise that
she was not coming to work and this would have enabled the employer
to take steps to get somebody in
her place for the 3
rd
and
4
th
April. This may be so but, in the light of the
seriousness of the misconduct and the fact that it was perpetuated
over a long period,
I do not think that that factor weighs much when
regard is had to all of the other circumstances.
[23] The commissioner also said that it was of
“
considerable importance
” to her that Fountain had
said that, if the appellant had “
come clean
” at
the first disciplinary inquiry (i.e. on the 8
th
April
2003) she would have forgiven the appellant. The commissioner said
that Fountain ought to have forgiven the appellant. It
is not clear
why Fountain ought to have forgiven the appellant when the latter did
not “
come clean
” at the first disciplinary hearing
but in fact perpetuated her dishonesty far beyond that time.
[24] The commissioner gives other reasons for her
decision that dismissal was not fair. I do not propose to deal with
each and every
one of them. However, I have taken them into account
and am satisfied that they do not justify the conclusion to which the
commissioner
came. I simply want to make one or two observations. The
commissioner said that in this case “
dismissal was wholly
inappropriate as a sanction
. She said that it “
induces
in me a sense of shock
”.
[25] The view that the commissioner took of the
appellant’s dishonest conduct and the view I take of it are
diametrically
opposed. The commissioner said that the fact that the
employer imposed the sanction of dismissal for the appellant’s
dishonest
conduct induced a sense of shock in her. What induces a
sense of shock in me is the fact that the commissioner not only
thought
that dismissal was inappropriate in this case but that it
induced a sense of shock in her. Indeed, later in her award the
commissioner
referred to factors that I would regard as aggravating
factors but she did so as if she regarded them as mitigating factors.
The
commissioner said:
“
[The appellant] gave a
fabricated story to Vahed, about reason for her need for leave, and
when once caught in the lie, was forced
to perpetuate it at the
disciplinary hearing and even after that. The lie grew and grew as
the Respondent’s forensic department
investigated her
explanation and in my view created, out of all proportion to the
misconduct, a mountain out of a molehill.”
[26] It seems that the commissioner had no appreciation
of the seriousness of the appellant’s dishonest conduct. This
was
very serious misconduct involving dishonesty perpetrated by an
employee employed in a position of trust involving working with the
employer’s cash. The dishonesty was perpetuated over weeks and
was persisted in over two disciplinary inquiries.
[27] It is true that the commissioner was the one who
had the power to decide whether dismissal was a fair or appropriate
sanction.
It is also true that generally speaking the Labour Court
would be required to defer to the CCMA when it comes to a decision as
to what the appropriate sanction is. However, the Labour Court is
entitled or even bound to intervene where the conclusion of the
CCMA
that dismissal as a sanction in a particular case is unfair is one
that a reasonable decision-maker could not reach. In my
view this is
such a case. When regard is had to all the facts of this case a
reasonable decision-maker could simply not conclude
that dismissal as
a sanction was unfair. Accordingly, the decision of the Labour Court
to review the award and set it aside was
correct. With regard to the
costs I am of the view that the requirements of the law and fairness
dictate that the appellant should
pay the first respondents’
costs. In the premises the appeal is dismissed with costs.
ZONDO JP
I agree.
PATEL JA
I agree.
KRUGER AJA
Appearances
For the appellant : Mr T.E Sewy
Instructed by : Berkowitz Attorneys
For the respondent : Mr G.O Van Niekerk SC
Instructed by : Justin Dorkin Attorneys
Date of judgment : 12 February 2009