Mutual Construction Company TVL (Pty) Ltd v Ntombela NO and Others (JA 37/06) [2009] ZALAC 14; (2010) 31 ILJ 901 (LAC); [2010] 5 BLLR 513 (LAC) (8 May 2009)

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Mutual Construction Company TVL (Pty) Ltd v Ntombela NO and Others (JA 37/06) [2009] ZALAC 14; (2010) 31 ILJ 901 (LAC); [2010] 5 BLLR 513 (LAC) (8 May 2009)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
LAC CASE NO. JA 37/06
In
the matter between:
MUTUAL
CONSTRUCTION COMPANY TVL (PTY) LTD APPELLANT
and
NTOMBELA
N.O. FIRST RESPONDENT
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION SECOND RESPONDENT
THOKOANE,
JOSEPH THIRD RESPONDENT
J
U D G M E N T
NDLOVU
AJ
A
Introduction
[1]
In
this matter the Court
a
quo
granted leave to appeal only against its order for compensation and
refused leave to appeal against its order on the merits of the
review
application under case number JR797/01. However this Court, on
petition, granted the appellant leave to appeal against the
entire
judgment of the Labour Court handed down on 25 April 2006. In terms
of that judgment the Labour Court dismissed with costs
the review
application launched by the appellant against the arbitration award
issued by the first respondent (“the Commissioner”)
dated 14 May
2001 under case
number
GA70877 in favour of the third respondent as against the
appellant.
[2]
The
only respondent opposing the appeal (and previously the review
application) was the third respondent, Mr Joseph Thokoane, who
was
formerly employed by the appellant and whose dismissal by the
appellant gave rise to the litigation which culminated in this
appeal.
[3]
In
his arbitration award which the Court
a
quo
upheld, the Commissioner found that the third respondent’s
dismissal was both procedurally and substantively unfair. The
appellant
was, as a result, ordered to reinstate the third respondent
in the appellant’s employ with retrospective effect and that the
third
respondent had to present himself for resumption of duty on 4
June 2001.
Application for
consolidation of two appeals
[4]
First
for us to consider was the preliminary issue involving the
application (brought by the appellant) for consolidation of two
appeals
under case numbers JA37/06 and JA48/06 for the purpose of
dealing with them as one appeal. Further, that the consolidated
appeal
be heard on a date set down for hearing of the appeal under
case number JA37/06. There was no opposition to the application. I
propose
to deal with this application presently.
[5]
Indeed,
the facts pertinent in the application are simple and
straightforward. Upon the review application being dismissed with
costs
(on 25 April 2006) the appellant lodged an application for
leave to appeal against the entire judgment of the Court
a
quo
.
The application was partially granted and partially refused. The
order read thus:
“
1. The appeal for leave to appeal
succeeds only on the ground pertaining to the relief granted to the
Third Respondent by the First
Respondent, in the review application.
Costs
of the application for leave to appeal will be costs in the appeal.”
[6]
In
perspective, it was clear that by the words “the relief granted to
the third respondent by the first respondent” in the order
was
actually meant the quantum of the compensation granted and computable
on the basis of retrospective reinstatement, which turned
out to be
an amount equivalent to approximately 23 months’ salary of the
third respondent. This relief awarded to the third respondent
was
challenged by the appellant on the basis of the decision of this
Court in
Chemical
Workers Industrial Union & Others v Latex Surgical Products (Pty)
Lt
d
(2007) 27 ILJ 292 (LAC). It was then only to this extent that the
Court
a
quo
granted leave to appeal.
[7]
In
the meantime the appellant proceeded and prosecuted the appeal on the
issue in respect of which leave was granted by the Court
a
quo
.
Such appeal was registered under Case No. JA37/06. As for the
merits of the review itself, in respect of which leave to appeal
was
declined by the Court
a
quo
,
the appellant petitioned the Judge President of this Court in terms
of
section 166(2)
of the
Labour Relations Act 66 of 1995
, as amended
(“the LRA”). The petition was successful and therefore leave was
granted to the appellant to appeal against the entire
judgment of the
Court
a
quo
.
The appellant prosecuted the latter appeal under Case No. JA48/06.
[8]
It
was common cause that in respect of both appeals the records of
proceedings filed were identical save for the notices of appeal.

Indeed, there could be no dispute that this is essentially one and
the same matter and that it would only be proper and appropriate
to
deal with the matter as one appeal. The application, in my view,
should therefore succeed.
The Parties’
Submissions
T
he
appellant’s case
[9]
The
third respondent was formerly employed by the appellant since on or
about 16 January 1997. As at the time of his dismissal he
was
designated as an administrative clerk. His duties included the
recording of hours worked by all employees (including himself)
for
the purpose of calculating payment due to employees. The said hours
were recorded by the respondent in a timesheet and he then
presented
the document to the appellant’s site manager, Mr Binks (“Binks”),
for signature and approval. Payment of staff
salaries and wages was
then determined on the basis of the hours so approved.
[10]
During
June 1999 the third respondent was charged with misconduct and
summoned before an internal disciplinary enquiry facing three
misconduct charges, namely: “Dishonesty”, “Breach of trust”
and “Action taken in bad faith”. The charges related to
allegations that the third respondent recorded for himself in the
time sheets to have worked a certain number of hours on certain
days,
thus claiming remuneration therefor, whereas in fact and in truth he
had not worked those hours and that he committed this
dishonest act
to the financial prejudice of the appellant since the appellant paid,
or was induced to pay, the third respondent for
the hours so recorded
and claimed.
[11]
Specifically,
the appellant alleged that the third respondent was not on duty on
the following days but booked himself as on duty
for the number of
hours indicated:
Date not on duty
Number
of hours booked as on duty
29 May 1999 9 hours
30 May 1999 8 hours
31 May 1999 11½ hours
1 June 1999 11½ hours
3 June 1999 11½ hours
5 June 1999 9½ hours
6 June 1999 10 hours
13 June 1999 (Sunday) 10 hours
[12]
The
appellant further alleged that, in addition, the third respondent had
tampered with the time sheet and varied certain figures
contained
therein. In particular, the appellant alleged that on 18 June 1999
the period worked by the third respondent was altered
from 11½ hours
to 14 hours and on 14 June 1999 it was changed from 9 ½ hours to 11½
hours. It was further alleged by the appellant
that on 24 June 1999
the third respondent was absent from work without permission.
[13]
Copies
of the relevant time sheets as well as the appellant’s disciplinary
code were included in the appellant’s founding papers
in the review
application.
[14]
The
disciplinary hearing against the third respondent was held on 29 June
1999. According to the appellant, the third respondent
did not
dispute the allegations against him, save to address the instances
when he was off on sick leave, that is, during the period
3, 4 and 5
June 1999 and in respect of which period the third respondent
submitted a medical certificate to cover for the days of
absence.
[15]
The
appellant also averred that the disciplinary hearing was held in
terms of the appellant’s disciplinary code and that the third
respondent was accorded a fair hearing. It was the appellant’s
strenuous argument that, as a result of his dishonest conduct
aforesaid,
the trust and working relationship between the appellant
and the third respondent had broken down irretrievably. Hence, the
only
appropriate sanction was the dismissal.
The third respondent’s case
[16]
On
the other hand, the third respondent claimed, in the first place,
that he did not receive a procedurally fair hearing. He alleged
that
the notice served on him to attend the disciplinary hearing did not
indicate any detail of the allegations against him and that
when
Binks served him with the notice he (Binks) did not explain the
charges to him. When he attended the hearing he was told that
he had
falsified the time sheets for the 3
rd
,
4
th
and 5
th
June but he was never shown the time sheets concerned.
[17]
He
said he was then asked whether he pleaded guilty, to which he
responded in the negative. In explanation of his not guilty plea
he
had told the tribunal that when he recorded himself as present on
duty in the time sheet it was because he was claiming for sick
leave.
In support thereof he had attached to the time sheet the doctor’s
sick note. However, although he was sick for three days
(being 3, 4
and 5 June 1999) he had only claimed sick leave for only two days,
namely the 3
rd
and 5
th
and not for the 4
th
June.
[18]
The
third respondent sought to assert that it was the appellant’s
procedure to claim for sick leave in the manner that he had done.
In
this regard, he put his case at the arbitration hearing thus:
“According to
the procedure that I know, I have to book the hours normal hours,
nine and a half hours, then attach a sick note
as proof that the
person was sick on those days.”
(Page
183 lines 17-19 Volume 2 of the Record.)
[19]
The
third respondent further stated that after he recorded the hours as
shown in the time sheets, he had given the same to Binks who
then
signed and approved the time sheets for payment. In other words, it
was submitted by the appellant that when he signed the time
sheets
Binks was approving that everything was done correctly.
[20]
At
the conclusion of the disciplinary hearing the verdict was recorded
as follows:
“Found
guilty of the charge laid against him”
.
The notice of dismissal served on the third respondent appeared to
show that he was convicted of all three counts as charged.
The
sanction was one of a summary dismissal with effect from 30 June
1999. It was the appellant’s contention that its working
relationship with and trust of the third respondent had irretrievably
broken down.
The Arbitration Award
[21]
In
his award the Commissioner made the following observations and
findings:
“The
applicant (now the third respondent) … alleged that during the
hearing he was never shown the timesheet that the respondent
(now the
appellant) claimed he changed, the respondent did not dispute this.
The Respondent failed to explain why the original document
was not
given to the applicant during the hearing and also failed to bring
the same during these proceedings. The applicant emphatically
denied
the allegation of changing certain hours on the timesheet. It is
difficult to see how these hours were changed because the
respondent
failed to bring along the original copy to these proceedings. It
must also be noted that Binks actually signed this document
basically, in my view, confirming that the information on the
timesheet is correct and the employees to be paid. My logic tells
me
that as a manager before signing any claim, you need to satisfy
yourself that the information is correct. … On balance of
probabilities,
I find the respondent’s evidence not convincing. It
is therefore my view that the applicant was dismissal (
sic
)
not for the fair reason.
In
terms of procedure, I concur with the union that the respondent did
not properly explain the charges that were put against the
applicant.
The applicant was charged for being dishonest but the charge sheet
doesn’t explain why. It is not the applicant’s
duty to seek
clarity on the charge. The responsibility lies with the respondent
to ensure that the charge is not ambiguous. …
The respondent in
this matter never bothered to explain the charges on the charge
sheet. This in my view had negative impact in
applicant’s
preparation of his case. …”
(Page
26 Volume1 of the Record)
[22]
The
Commissioner proceeded and criticised the appellant for the fact that
at the arbitration hearing the appellant claimed that a
certain Mr
Mashego (the third respondent’s co-employee) was the complainant at
the disciplinary enquiry whereas the notice to attend
the enquiry
reflected that Binks was the complainant. Binks’ explanation was
that he had made a mistake by reflecting himself as
complainant in
the notice of enquiry. The Commissioner further found it
procedurally wrong of the appellant not to have first called
evidence
in support of its case against the third respondent (before allowing
the third respondent to testify) given the fact that
the third
respondent had pleaded not guilty. Consequently, the Commissioner
found, in addition, that the third respondent’s dismissal
was also
procedurally unfair.
The Labour Court’s
Judgment
[23]
As
stated, the award issued by the Commissioner was challenged by the
appellant by way of review to the Labour Court. In its judgment
the
Court
a
quo
made findings and reached a conclusion, all of which can be
summarised as follows:
The third
respondent was indeed never shown the original time sheet which was
allegedly altered and this was a deficiency in the
misconduct
enquiry procedure since that time sheet was the very document on
which the acts of misconduct were premised. The
appellant had
failed to take any remedial step to cure this deficiency. In this
regard, the Court
a
quo
held that no “gross irregularity” was committed by the
Commissioner when the Commissioner found that absent the production
of the original time sheet “it was difficult to see how the hours
were changed”.
I
ndeed,
when Binks signed the time sheets it meant that he had satisfied
himself that the contents of the document were correct.
In this
regard the Court
a
quo
stated:
“
The
signing of time sheets by a mine manager was a very critical step in
the business of the (appellant). It directed the salaries
department
to pay an employee on the basis of the hours as were reflected on the
time sheet. In
the
absence of that signature, the salaries department would be acting
contrary to the procedure of the (appellant) if it continues
to
generate payment for employees. The Mine Manager had then to satisfy
himself that the time sheet was correct. He would be entitled
to
query any alterations or any entries in the time sheet which, from
his perspective, were a cause for concern. In my view, it
was
reckless as much as it was irresponsible of the (appellant) to
belittle the role played by Mr Bings (
sic
)
in signing the time sheet. The decision of the (commissioner) was,
accordingly, justifiable.”
(Page 254-5 Volume 3 of the
record.)
The
attachment
by the third respondent of the medical certificate to the time
sheet was proof that the third respondent lacked any
intention to
misrepresent facts to the appellant.
The Law
[24]
The
appellant had the onus to demonstrate that reinstatement was not
appropriate. In this instance, in particular, the appellant had
to
show that the circumstances as contemplated by
section 193(2)(b)
and/or (c) existed, being that “the circumstances surrounding the
dismissal are such that a continued employment relationship would
be
intolerable” and/or that “it is not reasonably practicable for
the employer to reinstate or re-employ the employee.” (see
also:
Chemical
Workers Industrial Union & Others v Latex Surgical Products,
supra;
Kroukam
v SA Airlink (Pty) Ltd
(2005) 26 ILJ 2153 (LAC)).
[25]
This
Court in
De
Beers Consolidated Mines Ltd v Commission for Conciliation,
Mediation and Arbitration & Others
(2000) ILJ 1051 (LAC) stated the following:
“Dismissal
is not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational
response to
risk management in the particular enterprise. That is why supermarket
shelf packers who steal small items are routinely
dismissed. Their
dismissal has little to do with society’s moral opprobrium of a
minor theft; it has everything to do with the
operational
requirements of the employer’s enterprise.”
(at
1058E-G)
[26]
In
Branford
v Metrorail Services (Durban) & Others
(2003) 24 ILJ 2269 (LAC) this Court stated:
“The
concept of fairness, in this regard, applies to both the employer and
the employee. It involves the balancing of competing
and sometimes
conflicting interests of the employer, on the one hand, and the
employee on the other. The weight to be attached to
those respective
interests depends largely on the overall circumstances of each case.
In
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd
[1996] ZASCA 69
;
1996 (4) SA 577
(A); (1996) 17 ILJ 455 (A), Smalberger JA made the
following remarks on fairness at 589C-D:
‘Fairness
comprehends that regard must be had not only to the position and
interests of the worker, but also those of the employer,
in order to
make a balanced and equitable assessment. In judging fairness, a
court applies a moral or value judgment to established
facts and
circumstances (
NUM
v Free State Cons
at 4461). And in doing so it must have due regard to the objectives
sought to be achieved by the Act. In my view, it would be unwise
and
undesirable to lay down, or attempt to lay down, any universally
applicable test for deciding what is fair.’” (at 2278H-2279A)
[27]
As
to the test and approach on review against an arbitration award
issued by a CCMA commissioner the Constitutional Court in
Sidumo
& another v Rustenburg Platinum Mines Ltd & Others
2008 (2) SA (CC); (2007) 28 ILJ 2405 (LAC) stated the following:
“The
question on review was not whether the record revealed relevant
considerations that were capable of justifying the outcome,
but
rather whether the decision-maker properly exercised the powers
entrusted to him.”
(at
para 45)
At paragraph
78:
“
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge to the
dismissal. 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.”
At paragraph
79:
“
To
sum up. In terms of the LRA a commissioner has to determine whether a
dismissal is fair or not. A commissioner is not given the
power to
consider afresh what he or she would do, but simply to decide whether
what the employer did was fair. In arriving at a decision
a
commissioner is not required to defer to the decision of the
employer. What is required is that he or she must consider all
relevant
circumstances.”
At paragraph 110:
“To
summarise,
Carephone
(
(Pty)
Ltd v Marcus NO and Others
1999
(3) SA 304
(LAC); (1998) 19 ILJ 1425;
[1998] 11 BLLR 1093)
held
that
sect 145
of the LRA was suffused by the then constitutional
standard that the outcome of an administrative decision should be
justifiable
in relation to the reasons given for it. The better
approach is that
sect 145
is now suffused by the constitutional
standard of reasonableness. That standard is the one explained in
Bato
Star (
Fishing
(Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC)
(2004 (7) BCLR 687)).
Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will give effect not
only
to the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful, reasonable
and
procedurally fair.”
At paragraph
116:
“
… In my view, the commissioner cannot be faulted for considering
the absence of dishonesty a relevant factor in relation to the
misconduct. However, the commissioner was wrong to conclude that the
relationship of trust may have not been breached. Mr Sidumo
was
employed to protect the mine's valuable property, which he did not
do. However, this is not the end of the inquiry. It is still
necessary to weigh all the relevant factors together in light of the
seriousness of the breach.”
At paragraph
117:
“
The
absence of dishonesty is a significant factor in favour of the
application of progressive discipline rather than dismissal. …
That
Mr Sidumo did not own up to his misconduct and his denial that he
received training are factors that count against him.”
Analysis and Evaluation
Substantive
Fairness Aspect
[28]
It
is common cause that the decision reached by the Commissioner in this
case was (1) that the dismissal of the third respondent was
procedurally and substantively unfair, and (2) that the appellant
must reinstate the third respondent with retrospective effect in
the
appellant’s employ. Then the primary question to be asked: Was this
decision reached by the Commissioner one which a reasonable
decision-maker could not reach?
[29]
Counsel
for the appellant conceded that the original time sheet reflecting
the alleged alterations was not produced at the arbitration
hearing
but he submitted that the issue of the authenticity of the time
sheets was never placed in dispute by the third respondent.

Subsequently, however, counsel no longer pursued this point but
argued that the third respondent was, in any event, still guilty
of
the other transgressions that he booked himself on duty when he was
in fact absent from work. Therefore it seems not necessary
to deal
with this aspect of the case.
[30]
It
was noted that in his evidence during the arbitration hearing the
third respondent admitted being absent from work for six days,
namely: 30 May 1999 (Sunday); 2, 3, 4, 5 and 6 June 1999.
[31]
Of
course, the third respondent was not charged for being absent on 2
and 4 June 1999. In other words, as far as the charge was concerned,
the third respondent admitted having been absent from work on 30 May,
3 June, 5 June and 6 June 1999. According to him the 3
rd
and 5
th
were covered by the sick note which he attached to the time sheet. I
will return to this aspect shortly.
[32]
Based
at least on what he admitted (as indicated above), the third
respondent could not proffer an explanation as to why he booked
himself as present on duty on 30 May and 6 June (as reflected by him
in the time sheet) when in actual fact he was not present.
It can
hardly be doubted that this conduct alone amounted to dishonesty and
constituted a gross misconduct by the third respondent.
[33]
It
did appear that the procedure which the third respondent subsequently
chose to follow in terms of claiming for sick leave in the
manner
that he did was obviously unknown in the appellant’s operational
system. At some point the third respondent claimed that
he was
taught the procedure by a certain Mr Moses Jacobs
(see
page 183 line 22 of the record)
whom, unfortunately, the third respondent did not bother to call as
his witness in that regard. The appellant denied that there was
such
a procedure at the appellant. Indeed, it would appear that it was not
for the first time that the third respondent was on sick
leave, yet
it was his first time to make use of that procedure.
[34]
In
any event, supposing the procedure did exist as indicated by the
third respondent, it was his evidence that a claim for a day’s
sick
leave (under this procedure) would consist of only hours for a normal
working day, namely 9½ hours. Strangely, therefore,
he could not
explain why then (if he was claiming for sick leave in respect of the
3
rd
and 5
th
June) he recorded 11½ hours for the 3
rd
June,
in particular.
[35]
Therefore,
it seems clear to me that, on his own evidence and admissions, the
third respondent was indeed guilty of serious misconduct
involving
gross dishonesty. On that basis, his conviction for misconduct was,
in my view, a fair reason to justify his dismissal.
[36]
It
was important that the Commissioner took the totality of the
circumstances into account in making his decision. In the present
instance the third respondent was placed in the position of trust and
responsibility. He was basically the source from which all
the
information was obtained by the appellant as to how the staff was to
be remunerated in terms of the number of hours of work actually
performed by each employee. This role played by the third respondent
constituted a crucial and fundamental operational requirement
in the
appellant’s business. Indeed, it was correctly submitted on behalf
of the appellant that the third respondent, given the
post that he
held and duties that he performed, was in a good position to able to
have made false entries in the time sheet not only
for himself (as
was the case here) but also for other employees. This was not a mere
speculation but, in my view, a potential reality.
[37]
The
misconduct which the third respondent committed involved gross
dishonesty and fraud which was bound to cause harm and prejudice
to
the appellant’s business operation. It was also significant that
the third respondent elected not to own up to his misdemeanour.
In
other words, he showed a complete lack of remorse or contrition for
what he did. Instead, he attempted to shift the blame to the
site
manager whom the third respondent apparently induced to signing the
falsified time sheet. He had only 2½ years of service with
the
appellant. Even if he had a much longer service that would not (and
should not) have spared him in the circumstances of this
case. In
Toyota
SA Motors (Pty) Ltd v Radebe & Others
(2000) 21 ILJ 340 (LAC) the Court stated:
“Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must
be made that there are certain acts of misconduct which are of such
a serious nature that no length of service can
save an employee who
is guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty. It appears
to me that the
commissioner did not appreciate this fundamental point.
I
hold that the first respondent’s length of service in the
circumstances of this case was of no relevance and could not
provide,
and should not have provided, any mitigation for misconduct
of such a serious nature as gross dishonesty. I am not saying that
there can be no sufficient mitigating factors in cases of dishonesty
nor am I saying dismissal is always an appropriate sanction
for
misconduct involving dishonesty. In my judgment the moment
dishonesty is accepted in a particular case as being of such a
serious
degree as to be described as gross, then dismissal is an
appropriate and fair sanction.”
(at
344C-F)
[38] I have
found
that, especially given the position of trust and responsibility that
he held at the appellant, the third respondent, on his
own admission,
committed misconduct which involved gross dishonesty, which
essentially amounted to fraud. Hence, in my view, retaining
the third
respondent in the appellant’s employ, in these circumstances, would
have been severely detrimental to the appellant’s
operational
requirements and therefore inappropriate. Any continued working
relationship between the appellant and the third respondent
was, as a
result of the third respondent’s conduct, rendered intolerable. In
a
dictum
(
per
Conradie JA) in
De
Beers Consolidated Mines Ltd, supra,
this Court stated:
"Where
an employee has committed a serious fraud one might reasonably
conclude that the relationship of trust between him or
her and the
employer has been destroyed.”
(at 1057C-D)
[39] Accordingly,
I am satisfied that the decision reached by the Commissioner was
indeed one which a reasonable decision-maker could
not make. Besides
the fact that the judgment of the Labour Court was handed down prior
to the advent of the
Sidumo
decision, it does nevertheless seem to me that the Court
a
quo
dealt with the matter, on review, somewhat narrowly by tending to
focus strictly on the reasons given by the Commissioner for his
decision, instead of considering the matter more broadly in the light
of the entire evidence adduced at the arbitration hearing,
which
included the third respondent’s own admissions of serious and
dishonest wrongdoing.
Procedural
Fairness Aspect
[
40] The
Court
a
quo
had
only
the following to say on the aspect of procedural fairness:
“While
some of (the Commissioner’s) findings on procedural fairness were
more formalistic, than substantial as I would hold,
I would have
arrived at the same conclusion as he reached on procedural fairness.
It is my view that,
I
need not take this aspect any further.”
(Page
257 Volume 3 of the Record)
[4
1] I
do not think that, viewing the issue holistically, the third
respondent did not receive a fair hearing. Of course, the procedure
was not without some flaws but these to me were not so gross and of
the nature as to justify the vitiation of the process. Granted,
the
charges as reflected in the notice of enquiry did not specify with
any degree of certainty what it was that the third respondent
was
alleged to have done which supported the charges preferred against
him. According to Binks the charges were explained to the
third
respondent at the disciplinary hearing. In any event, it did appear
from the nature of his defence and evidence which he adduced
that the
third respondent fully understood the import of the charges against
him and conducted his defence thereto reasonably well.
This position
was further better demonstrated during the arbitration proceedings,
which was a hearing
de
novo
of
the dispute. Indeed, it could not be expected of a company official
who was not legally trained to have drafted and formulated
a charge
sheet as, for example, was seen to be done in a court of law.
Order
[4
2] For
these reasons, the judgment of the Court
a
quo
cannot stand. However, the third respondent, being the losing
employee party already out of employment, will have received
sufficient
punishment by the outcome of this appeal. In any event, it
was not unreasonable for him to have opposed the appeal. I would
consider,
therefore, that no order be granted as to costs.
Accordingly, the following order is made:
The application for consolidation of
two appeals under Case Nos. JA37/06 and JA48/06 to be dealt with
as one appeal under Case
No. JA37/06 is granted.
The appeal is
upheld and the order of the Court
a
quo
is set aside and substituted with the following order :
The
review application
is
granted.
The
arbitration award dated 14 May 2001 under Case No. GA70877 issued
by the first respondent (the Commissioner) is reviewed and
set
aside and substituted with the following order:
The
application
is dismissed.
The
dismissal
of the employee was both procedurally and substantively fair.
(c)
There is no order as to costs.
(3)
There is no order as to costs on appeal.
__________________
NDLOVU, AJA
__________________
I agree
KHAMPEPE, ADJP
__________________
I agree
TLALETSI, AJA
Appearances
For the
appellant : Mr
S.
Snyman
c/o
Snyman Attorneys
For the third
respondent : Mr C Orr
Instructed
by : Cheadle Thomson & Haysom
Date Judgment
: 8 May 2009