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[2012] ZALAC 40
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Eskom Holdings Ltd v Fipaza and Others (JA 56/10) [2012] ZALAC 40; [2013] 4 BLLR 327 (LAC); (2013) 34 ILJ 549 (LAC) (3 October 2012)
REPUBLIC
OF SOUTH AFRICA
the labour APPEAl court of South
Africa, JOHANNESBURG
Reportable
Case no. JA 56/10
In the matter between:
ESKOM HOLDINGS LIMITED
...................................................................
Appellant
and
NP FIPAZA
...................................................................................
First
Respondent
CCMA
......................................................................................
Second
Respondent
COMMISSIONER L MAPONYA N.O.
.........................................
Third
Respondent
Heard : 17 November 2011
Delivered : 3 October 2012
Summary: (1) Ordinarily no duty
ex
lege
exists on job seeker to disclose in CV the reason(s) for
termination of previous employment; (2)
In casu
, no duty of
such disclosure proven even
ex contractu
; (3) Non-disclosure
does not amount to misrepresentation; (4) Lack of dishonesty in
misconduct militating against finding of irreconcilable
breakdown in
trust relationship.
JUDGMENT
___________________________________________________________
NDLOVU, JA
Introduction
[1] This appeal is
against the judgment and order of the Labour Court (Lagrange AJ, as
he then was) handed down on 6 May 2010. The
appeal comes before us
with the leave of the Court
a
quo
.
[2] The first
respondent (Fipaza) referred an unfair dismissal dispute to the
second respondent (the CCMA) against her former employer,
the
appellant. It was common cause that the alleged unfair dismissal
occurred on 2 June 2008. Fipaza sought relief for retrospective
reinstatement in the appellant’s employ. When attempts at
conciliation failed the dispute proceeded to arbitration before
the
third respondent (the commissioner) who, on 28 August 2008 or 10
September 2008,
1
issued an
arbitration award declaring that the dismissal of Fipaza was
substantively fair but procedurally unfair. The commissioner
awarded
compensation to Fipaza in the amount equivalent to her three months’
salary, totalling R102 690. This award was taken
up on review to the
Labour Court by Fipaza, in terms of section 145 of the Labour
Relations Act
2
(the LRA).
[3] To avert any
possible confusion or misunderstanding in relation to the order of
the Court
a
quo
,
which is the subject of this appeal, referred to hereunder, it is
apposite to mention how the parties were designated at the level
of
that Court: The appellant was the first respondent; Fipaza was the
applicant; the commissioner was the second respondent and
the CCMA
was the third respondent. On the basis of that designation, the
judgment and order of the Court
a
quo
appears
as follows:
‘
1.
The second respondent’s finding in his award of 10
th
September 2008 that the dismissal of the applicant was substantively
fair is set aside.
2.
The matter is remitted to the third respondent to convene a hearing
before the second respondent to consider and determine an
appropriate
remedy for the applicant’s substantively unfair dismissal.
3.
At the hearing before the second respondent, the applicant and first
respondent must be given an opportunity to lead evidence
relevant to
determining an appropriate remedy and to present argument on the
issue.
4.
The first respondent is ordered to pay the applicant’s costs of
this application.’
It is against this judgment and order
that the appellant appeals to this Court.
Factual Background
[4] Fipaza’s employment with the
appellant, the dismissal of which is the subject matter of this
litigation, was the second
stint of her employment relationship with
the appellant. She was employed by the appellant in January 1994 and
during or about
July 2003, she and the appellant concluded a leave of
absence agreement in terms of which she was released from duty to
undertake
post graduate studies in the United Kingdom. This
sabbatical leave was to expire on 5 July 2006. It is not in dispute
that, in
the United Kingdom, she obtained a post-graduate diploma in
management and a Master’s degree in international banking and
finance.
[5] When she failed to return to work
on 5 July 2006, as arranged, the deadline was extended by the
appellant to 5 September 2006.
In a registered letter, the appellant
warned Fipaza not to miss the extended deadline and further that her
failure to report for
work on that date would result in disciplinary
action being taken against her which could lead to termination of her
employment.
However, on 5 September 2006,Fipaza did not report for
duty as instructed. She was then served with a notice of disciplinary
hearing
scheduled for 29 September 2008, whereby she was charged
under what was referred to as ‘Misconduct 14’, namely,
‘absent
from duty without leave’.
[6] On the date of
the enquiry, (i.e. 29 September 2008), Fipaza did not turn up but
sent a letter acknowledging her receipt of
the notice of the
disciplinary enquiry and the date thereof. The hearing proceeded in
her absence. She was found guilty,
in
absentia
,
of the misconduct charged and summarily dismissed. The chairman of
the disciplinary enquiry noted, amongst others, that Fipaza’s
misconduct had ‘destroyed the trust relationship’ between
her and the appellant. An email was dispatched to her whereby
she was
advised of the termination of her employment with the appellant.
[7] Fipaza
unsuccessfully noted an appeal against her dismissal to the
appellant’s internal appeal structure. Significantly,
in the
written ‘Outcome of Appeal’,
3
addressed to her
the following, amongst others, appears:
‘
3.14
In the circumstances, you are advised that should a vacancy exist
within Eskom for which your skills are required, kindly follow
the
normal recruitment process.
4.
Kindly note that all Eskom vacancies are advertised on (appellant’s
website was indicated). Should you come across any
vacancy which you
feel that you are suitably qualified for, kindly follow the
application process.
5.
We trust that you find the above to be in order and we would like to
take this opportunity to wish you well in your future endeavours.’
[8] During or about April 2008, the
appellant advertised the vacant position of ‘senior advisor:
measurement and verification
- corporate services division’ for
which Fipaza submitted her application in accordance with the
appellant’s normal
job recruitment process. She was interviewed
by the appellant’s interviewing panel consisting of the
appellant’s officials.
[9] On 25 April
2008, she was advised that her application was successful and offered
the position at R410 760 per annum. She accepted
the offer on 29
April 2008. In other words, the accepted offer assumed the status of
the employment contract between Fipaza and
the appellant (the
contract). She was then due to assume duty on 1 June 2008. In the
meantime, on 1 May 2008, she addressed a letter
of resignation to her
then employer, the Department of Minerals and Energy in Pretoria, in
terms of which she advised that her
last day of duty with the
Department would be 31 May 2008.
4
[10] However, by
the letter dated 27 May 2008,
5
the appellant
advised Fipaza of its intention to withdraw its offer of employment.
The letter read, in part, as follows:
‘
2.
It has come to Eskom’s attention that you were previously
employed by Eskom… and that your employment was terminated
on
29 September 2006… The reasons for your dismissal related to
misconduct which resulted in the breakdown of the employment
relationship between you and Eskom.
3.
During the interview process, you failed to advise the interviewing
panel of the fact that you were previously dismissed by Eskom,
which
is a material fact that should have been disclosed to the
interviewing panel. Accordingly, the offer was made without this
fact
being disclosed.
4.
After in depth and careful consideration of this matter, we believe
that the reasons that led to your dismissal are of such a
nature that
had they been disclosed, they would have had a bearing on whether the
offer would have been made to you.
5.
You will appreciate that the position which has been offerd to you is
a senior position within Eskom and which requires a high
degree of
trust, which in your case has been compromised by your previous
dismissal from Eskom. The reasons for your previous dismissal
are of
such a nature that they will have a bearing on the position that has
been offered to you.’
[11] Fipaza was, thereupon, invited to
make representations why the appellant should not withdraw its offer
of employment. On 29
May 2008, she submitted her written response in
which she sought to explain her position, including the following:
‘
I
was employed at Eskom from 1995 until September 2006 – I
mentioned it duly in my curriculum vitae as well as during my
interview.
During
September 2006 I was charged for ‘misconduct 14 – absent
from duty without leave’. My services were terminated
due to
the fact that I was not able to return timeously to Eskom after my
sabbatical leave.
There
was no referral at any stage to a breakdown of the employment
relationship between myself and Eskom.
On
my termination letter it was actually recommended that: “
In
the circumstances you are advised that should a vacancy exist within
Eskom, for which your skills are required, kindly follow
the normal
recruitment process. Should you come across any vacancy which you
feel that you are suitably qualified for, kindly follow
the
application process.” (italics inserted)
I
followed the application process and went for an interview. I
answered all questions honestly.
I
wish to state that I want to continue with my employment with effect
from 1 June 2008.
The
reasons for my previous termination are not poor work performance or
any fraudulent activities and I know that I will have a
long and
trusted relationship with Eskom.’
[12] As undertaken in her
representations of 29 May 2008, Fipaza reported for duty on Monday 2
June 2008 at 08h00. After she completed
the official attendance
register she was instructed to attend the appellant’s
orientation course, which she did. However,
at about 10h00 she was
instructed by officials from the human resources department to leave
the appellant’s premises forthwith
and await the appellant’s
response to her representations by 4 June 2008.
[13] Indeed, on 4 June 2008, she
received a letter from the appellant in which she was notified of the
appellant’s withdrawal
of its offer of employment to her.
Thence she referred the unfair dismissal dispute to the CCMA.
The arbitration proceedings
[14] The appellant’s officials
who constituted the panel that interviewed Fipaza were Ms Refilwe
Aphane, the recruitment practitioner
and Mr Fanele Mondi, the line
manager. They both testified for the appellant at the arbitration
hearing. Fipaza testified in support
of her case.
[15] Ms Aphane testified that Fipaza’s
reason for leaving the appellant’s employ in 2006 was not
reflected in her CV
and further that she did not disclose this reason
during her interview. However, Ms Aphane reaffirmed the appellant’s
employment
policy in so far as it rendered previously dismissed
employees still employable at the appellant, albeit she sought to
qualify
her statement in this way:
‘
Eskom
does not stop anybody from applying and going through the normal
recruitment process. Of course that person’s appointment,
depending on whether the person declares all information (sic) and…
[w]e also have in our letter that your appointment is
(based) on
conditions and (that) integrity assessments are done and Eskom has
the right to withdraw and also (that) should we find
any
discrepancies. (sic). It does not stop you from applying.’
6
[16] Mr Mondi stated that his duties
entailed a combination of three areas, namely, contract management,
project management and
technical management. Fipaza would fall under
his line management. He said that, as a result of Fipaza’s
failure to disclose
the reasons for her leaving the appellant, he did
not have confidence and trust in her that she would be honest in her
dealings
with the appellant’s suppliers. On this basis, the
circumstances rendered the continuation of employer/employee
relationship
intolerable.
[17] Fipaza testified that, when she
applied for the position, she submitted her detailed CV in which she
clearly indicated that
she previously worked for the appellant. She
also provided the particulars of two senior managers of the appellant
as her references.
During the interview, she answered all questions
put to her fully and honestly. She submitted that she found it
unreasonable to
be expected to provide information during her
interview which was not required or inquired from her. She felt that
she had no duty
to disclose in her CV the reasons why she left the
appellant’s employ. She submitted that, after all, the reasons
of one’s
termination from previous employment had no bearing on
one’s prospect of future employability. However, she conceded
that
the members of the interviewing panel were not part of the
appellant’s administration during her previous stint with the
appellant.
[18] She submitted that there was no
breakdown in trust relationship with the appellant, particularly
because (1) she was not dismissed
for misconduct involving dishonesty
and (2) in her letter of termination of service it was indicated that
in future she could still
apply for any suitable vacancy within the
appellant.
[19] The commissioner found
substantially against Fipaza. In his analysis and conclusion, the
commissioner stated:
‘
It
is my view that this principle of fraudulent non-disclosure may be
extended to cases where an employee fails to disclose a previous
dismissal when applying for another employment, where the employee
would have not been employed had the true facts (been) known.
The
applicant admitted that she did not disclose in her CV or during the
interview that she was previously dismissed by the respondent.
Her
justification being that she was never asked to provide reasons for
her termination.
It
is my view that the applicant’s misrepresentation was wilful
and material, this is against the backdrop that the applicant
did not
want to jeopardize her chances of gaining employment with the
respondent.
The
respondent would not have employed the applicant had the true facts
(been) known that she was previously dismissed for an alleged
act of
misconduct. The applicant’s justification that she was never
asked to state reasons why she left the respondent does
not mitigate
against the materiality of the facts misrepresented in the present
instance.
In
these circumstances I find that the respondent had discharged the
onus
placed
on it and established that it had fair reasons to terminate the
applicant’s employment.’
[20] Hence, the commissioner found
that Fipaza’s dismissal was substantively fair. In light of the
appellant’s concession
that the procedure followed in
dismissing Fipaza was not a fair procedure, the commissioner formally
declared that Fipaza’s
dismissal was indeed procedurally
unfair. Given the fact that she had just been employed and not yet
really assumed duties, the
commissioner considered that compensation
in the amount equivalent to three months’ salary was just and
equitable in the
circumstances and he issued the award accordingly.
Proceedings in the Labour Court
[21] Fipaza alleged
that the commissioner misdirected himself in a number of respects in
his handling of the arbitration proceedings.
She pointed out, for
instance, that the commissioner noted in his award that he was
required to determine whether or not her dismissal
was substantively
and procedurally unfair,
7
despite the fact
that during the pre-arbitration meeting the appellant had conceded
that the procedure followed in her dismissal
was unfair and the
pre-arbitration minutes were filed with the commissioner in this
regard.
8
The commissioner
also stated that it was common cause that the appellant withdrew its
offer of employment on 2 June 2008, being
the date of Fipaza’s
dismissal,
9
whereas the
factually correct position was that this occurred on 4 June 2008.
10
[22] She submitted that there was no
evidence to suggest that she intended to misrepresent facts to the
appellant by not disclosing
in her CV or during her interview the
reason why she left the appellant’s employ in 2006. On the
contrary, she had reflected
in the CV the fact of her previous
employment with the appellant and, in addition, she had furnished the
interviewing panel with
her clock number which in turn provided a
link to her detailed work history with the appellant. In any event,
the commissioner
ignored the fact that in the letter of her dismissal
in 2006, the appellant had advised her that she could in future
re-apply for
any suitable position within the appellant through the
normal recruitment procedure, which was exactly what she had done.
[23] Fipaza also averred that, apart
from its mere say so, the appellant did not tender any evidence to
substantiate that there
was a breakdown in trust relationship which
rendered her re-instatement not feasible.
[24] She contended that the
commissioner failed to apply his mind properly to the matter before
him in that he failed to deal with
the credibility of witnesses and
the analysis of the evidence and argument presented before him. She
further submitted that the
granting of compensation was irregular
since she had only sought re-instatement. Consequently, so she
submitted, the commissioner
arrived at a decision which is not
justifiable in relation to the evidence placed before him.
[25] According to the appellant,
Fipaza had ‘wilfully omitted’ to disclose the fact that
she was previously dismissed
by the appellant for misconduct. This
information only came to the attention of the appellant at a later
stage. Had the appellant
known about it earlier the appellant would
not have offered the position to Fipaza. The appellant withdrew the
offer because it
could not trust Fipaza as its employee since she had
misrepresented herself during the recruitment process by the
non-disclosure
aforesaid.
[26] The appellant acknowledged that
Fipaza had indeed disclosed in her CV the fact of her previous
employment with the appellant,
but of serious concern was the fact
that she had not disclosed, either in her CV or during her interview
that she had been dismissed
by the appellant for misconduct. Even if
she was not specifically asked about the reason(s) for leaving the
appellant’s employ
in 2006, she had a duty to disclose the
cause for leaving. Whilst she was not required to have disclosed
every single move in her
employment history with the appellant and
the detailed reasons for such moves, it was expected of her to have
disclosed the fact
of her previous employment with the appellant, as
well as the fact that her employment had been terminated for
misconduct because
the appellant required a certain level of
integrity and trust from employees in higher positions such as the
one that Fipaza had
applied for. Since she had chosen not to openly
disclose this fact during her interview, it was not unreasonable of
the appellant
not to want to continue the working relationship with
her.
[27] The appellant submitted that it
was not required of it to prove that Fipaza had intended to
misrepresent facts to the appellant
during the interview process. The
enquiry was whether Fipaza disclosed to the interviewing panel the
fact that her previous employment
with the appellant was terminated
in 2006 when she was dismissed for misconduct and, if she did not,
whether Fipaza was reasonably
expected to have disclosed this fact.
In the appellant’s submission, she was reasonably expected to
make the disclosure as
it would have had a bearing on the appellant
on whether or not to make the offer of employment to her. It was, in
the circumstances,
reasonable for the appellant to infer that Fipaza
had deliberately chosen not to disclose this fact during the
interview process
as it might have had a negative impact on the
appellant’s decision whether to offer the position to her.
[28] The appellant also pointed out
that Mr Mondi testified during the arbitration proceedings that
Fipaza had been employed in
a high position of trust and since he
(Mondi) would be Fipaza’s line manager, he no longer had
confidence that he could trust
Fipaza to be honest in dealing with
suppliers after it became evident that she had failed to disclose
such a material fact during
the interview process. Therefore, it was
not improper that the appellant did not substantiate or elaborate on
its averment that
its trust relationship with Fipaza had broken down.
Where an employment relationship began on the basis of such a
fundamental non-disclosure,
it was not possible for any trust to
exist between the parties or for continued employment relationship to
be tolerable.
[29] It was the appellant’s view
that the commissioner had properly analysed the evidence and argument
presented to him before
reaching his reasoned conclusion that
Fipaza’s dismissal was substantively fair. The award showed
that the commissioner applied
his mind to the issues and his decision
was one which a reasonable decision-maker could reach.
[30] On Fipaza’s
challenge of the commissioner’s decision to grant her only
compensation, the Court
a
quo
found
that it was not irregular for the commissioner to award compensation,
even if this was not asked for by Fipaza, because the
remedy for
procedurally unfair dismissal (which the commissioner had found was
the only aspect proven) was limited to compensation
and the
commissioner had the discretion in this regard in terms of the LRA.
11
[31] Concerning the question whether
the appellant established that its trust relationship with Fipaza had
broken down, the learned
Judge stated as follows:
‘
38.
On the evidence, even though Mr Mondi’s evidence was not very
coherent, there was at least some factual basis for the
commissioner
to conclude that Eskom would not have had sufficient trust in the
applicant to hold the position she was appointed
to, once the details
of her previous dismissal became known and it was realised she had
failed to disclose this. Consequently,
the third mentioned ground of
review must also fail.’
[32] On the commissioner’s
finding that Fipaza’s non-disclosure amounted to fraudulent
misrepresentation, the Court
a quo
stated that the only way
that the non-disclosure could be characterised as a misrepresentation
was if there was an obligation on
the part of Fipaza to disclose the
information concerned. The Court stated that whilst accepting the
commissioner’s conclusion
that Fipaza’s decision not to
raise the issue of her 2006 dismissal was intentional on her part,
she was nonetheless not,
in the circumstances of this case, obliged
to disclose any further information related thereto. In this regard,
the learned Judge
stated, in part:
‘
54.
In this instance, the fact of the applicant’s dismissal was not
within her exclusive knowledge, even though it may have
been a
material issue. It may not have been within the knowledge of the
members of the interview panel, but it can hardly be said
they were
not in a position to ascertain the circumstances in which the
applicant’s previous employment with Eskom ended
either by
simply asking the applicant, or by consulting Eskom’s own
records. Moreover, in its dealings with the applicant,
Eskom gave no
indication that it expected more information than it specifically
requested.
55.
When the commissioner found that the applicant had a duty to disclose
her previous dismissal to Eskom, he did not give consideration
to the
proper legal principles applicable to determining when such an
obligation arises in contract. As a result, he gave no consideration
to the principle that there is no general duty on a contracting party
to tell the other all she knows about anything that may be
material,
nor to the fact that the applicant’s dismissal was not a matter
within her exclusive knowledge in this case.
58.
In this instance, the commissioner adopted the view that an
obligation to disclose a previous dismissal arises where the
applicant
would not have been employed if that fact was known. He
adopted this view without considering if it was also necessary that
the
information fell within the applicant’s exclusive knowledge
for the obligation to arise. Consequently the commissioner failed
to
consider Eskom’s own ability to ascertain the reason for the
applicant’s previous termination from its records.
The facts of
the matter show Eskom did just that, demonstrating that it was able
to ascertain the information without having to
rely on the applicant.
Applying the correct test to the facts would have led to the
unavoidable conclusion that the applicant in
this instance was not
obliged to disclose her previous dismissal to Eskom. Accordingly, the
applicant’s non-disclosure of
her previous dismissal could not
have been a fair ground for her dismissal.’
The appeal
[33] The appellant’s grounds of
appeal were the following:
33.1 That the Court
a quo
erred
in finding that there was no contractual duty on Fipaza to disclose
the reasons for her previous termination of employment
with the
appellant.
33.2 That the Court
a quo
erred
in finding that it was entitled to set aside the commissioner’s
award on the basis that the commissioner applied the
incorrect test
to determine Fipaza’s obligation to disclose the reasons for
her previous termination of employment with the
appellant.
[34] Mr Boda, for the appellant,
submitted that the commissioner’s award was not reviewable for
either of the following grounds:
(1) the appellant had a contractual
right to resile from the contract based on its terms; (2) Fipaza had
a legal duty to disclose
to the appellant the reason for her 2006
dismissal; or (3) the commissioner did not make a mistake of law in
his award and even
if he did, it was not a reviewable mistake but may
have been a ground of appeal, not a ground of review.
[35] He submitted
that the Court
a
quo
failed
to have regard to the terms of the contract between Fipaza and the
appellant. As a point of departure, he pointed out that
a
pre-employment agreement was concluded between the parties when
Fipaza completed and signed the appellant’s recruitment
form
12
and, in this
regard, Counsel referred particularly to the following caveat
therein:
13
‘
Read
carefully before signing. I certify the information on this form is
true and accurate to the best of my knowledge. I understand
that
false or incomplete information may constitute grounds for dismissal
and an investigation may be made of my background and
used relative
to my employment status. I also authorize my former employers and any
other persons or organizations to provide any
information that they
may have about me and I release all concerned from any liability in
connection herewith.’
[36] Then the contract itself
provided, amongst others, the following special condition:
‘
We
are entering into this employment agreement with you based on the
information you have provided relating,
inter
alia
,
to your skills, abilities, qualifications and job related personal
details. This offer is subject to integrity assessments and
a
pre-employment medical (if not already concluded).
Should
any information prove to be materially incorrect, we reserve the
rights to withdraw from this agreement and your services
may be
summarily terminated.’
[37] Mr Boda
contended that, in the circumstances of this case, the specific terms
both in the pre-employment agreement and the
contract, referred to
above, accorded the appellant a contractual right to resile from the
contract, even if Fipaza did not have
a legal duty to disclose the
information concerned, which the appellant did not admit. In other
words, the appellant was entitled
ex
contractu
to
conduct investigations in relation to Fipaza’s work background
and if it was found that there was some materially incorrect
information present surrounding her then the appellant reserved a
right to withdraw the offer of employment. Indeed, that was what
happened in this case, in that once the appellant found out that
Fipaza was dismissed for misconduct in 2006 and she did not disclose
this fact, the appellant exercised its right in terms of the contract
and withdrew the offer.
[38] Therefore, Mr Boda further
submitted, since the parties provided in the contract for their
rights and responsibilities, the
question of whether or not Fipaza
had a legal duty to disclose the information concerned does not
arise. It was a matter governed
by the contract. It was also clear
from the award that the commissioner took into account these
contractual terms. In particular,
counsel referred to the exchange
between the commissioner and Fipaza during the arbitration hearing
when the commissioner commented
about the fact of Fipaza’s
non-disclosure having implications on her integrity, whose assessment
the contract was subject
to, after all. He said it was immaterial
that the integrity aspect was not referred to in the letter of her
dismissal.
[39] Mr Boda conceded that the
recruitment form was completed fully by Fipaza and he could not point
out anything in the form that
was falsely completed by her. However,
he submitted that the appellant’s focus was on Fipaza’s
omission to disclose
the information about her 2006 dismissal and the
appellant’s right to conduct investigation into her background.
[40] In further submission, Mr Boda
stated that the members of the interviewing panel acted innocently
when they did not ask Fipaza
any questions about why she left the
appellant in 2006. It was so because they were not there during that
time and, therefore,
it was incumbent of Fipaza to volunteer the
information.
[41] Mr Kirsten,
appearing for Fipaza, submitted that the Court
a
quo
correctly
found that although Fipaza’s non-disclosure was intentional it
was nevertheless not fraudulent. Therefore, any case
law related to
fraudulent non-disclosure was not relevant here. Essentially, this
was the case of a simple non-disclosure where
Fipaza felt that the
information in question was not necessary to disclose. She assumed
that the appellant made the offer to her
despite the appellant’s
knowledge of her previous dismissal and the reason thereof.
[42] He further submitted that the
commissioner did not consider whether there was a contractual duty on
Fipaza to disclose the
information about her previous employment with
the appellant. The commissioner applied a wrong test based on the
concept of materiality,
instead of a contractual duty.
[43] Mr Kirsten
argued that the declaratory statement in the recruitment form
14
did not create a
duty on Fipaza to disclose the information. Nor did the reservation
clause in the offer in favour of the appellant
create such duty.
Analysis and Evaluation
[44] It is trite
that the test applicable in determining whether or not an arbitration
award should pass muster of judicial review
under section 145 of the
LRA is that of a constitutional standard of reasonableness, namely
the question: ‘is the decision
made by the commissioner one
which a reasonable decision-maker could not reach?’
15
In other words, the
decision reached by a CCMA commissioner must fall within the range of
decisions that a reasonable decision-maker
could make. The
Constitutional Court further held, in
Sidumo,
that
a commissioner was not given the power to consider afresh what he or
she would have done, but simply whether or not the dismissal
was fair
and that in arriving at the appropriate decision the commissioner was
required to consider all relevant circumstances
and not to defer to
the decision reached by the employer.
16
[45] It is always
said that the distinction between an appeal and a review is what a
reviewing court ought primarily to remind itself
of when dealing with
the review of an arbitration award and this distinction is, in my
view, inherently manifest in the
Sidumo
decision.Indeed,
it will not be sufficient for the reviewing court only to state in
its judgment that this distinction was taken
cognisance of, but the
court’s approach and analysis of issues in a given case must
demonstrate that the court indeed gave
due recognition of the
distinction.
[46] Giving a word
of caution when applying the
Sidumo
test
this Court (Zondo JP, as he then was), in
Fidelity
Cash Management Service v CCMA and Others
,
17
stated:
‘
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA commissioner,
the
court feels that it would have arrived at a different decision or
finding to that reached by the commissioner. When that happens,
the
court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in terms of
the Act
primarily given to the commissioner and that the system would never
work if the court would interfere with every decision
or arbitration
award of the CCMA simply because it, that is the court, would have
dealt with the matter differently…
The
test enunciated by the Constitutional Court in
Sidumo
for determining whether a
decision or arbitration award of a CCMA commissioner is reasonable is
a stringent test that will ensure
that such awards are not lightly
interfered with. It will ensure that, more than before, and in line
with the objectives of the
Act and particularly the primary objective
of the effective resolution of disputes, awards of the CCMA will be
final and binding
as long as it cannot be said that such a decision
or award is one that a reasonable decision-maker could not have made
in the circumstances
of the case. It will not be often that an
arbitration award is found to be one which a reasonable
decision-maker could not have
made but I also do not think that it
will be rare that an arbitration award of the CCMA is found to be one
that a reasonable decision-maker
could not, in all the circumstances,
have reached.’
[47] The appellant’s case was
that whilst it acknowledged that Fipaza disclosed in her CV the fact
of her previous employment
with the appellant, she had however not
disclosed, either in her CV or during her interview that she had been
dismissed by the
appellant for misconduct. According to the
appellant, even if she was not specifically asked about the reason(s)
for her leaving
the appellant’s employ she had a duty to
disclose the cause for leaving in 2006.
[48] It is apparent that the appellant
offered the position to Fipaza on the strength, amongst others, of
her academic qualifications;
her appropriate work experience as
outlined in her CV and the recruitment form; and her performance
during the interview. It is
also not in dispute that the offer was
subject to certain conditions, including the following (which is
already referred to above):
‘
We
are entering into this employment agreement with you based on the
information you have provided relating,
inter
alia
,
to your skills, abilities, qualifications and job related personal
details. This offer is subject to integrity assessments and
a
pre-employment medical (if not already concluded).
Should
any information prove to be materially incorrect, we reserve the
right to withdraw from this agreement and your services
may be
summarily terminated.’
[49] According to
the dictionary meaning, a resume or curriculum vitae (the CV) refers
to ‘a brief account of one’s
life or career, esp. as
required in an application for employment’.
18
In other words, it
is generally not a requirement that a CV should provide reasons for
leaving previous employment. It is a sort
of document whereby a job
seeker aims to advertise or market himself or herself concisely and
succinctly to potential or prospective
employers. In short, it is a
personal advertisement for purposes of seeking employment. On this
simple definition it would appear
that the information provided by
Fipaza in her CV was more than adequate for its purpose.
[50] Mr Boda
conceded that Fipaza completed the recruitment form fully and
correctly. She was only blamed for not disclosing the
fact that, in
2006, she was dismissed by the appellant for misconduct. In other
words, she was accused of wilful and/or fraudulent
misrepresentation.
Mr Bodasubmitted that the contractual terms obliged Fipaza to have
disclosed the reason of her 2006 dismissal.
However, I do not find
the basis of this submission, both in the recruitment form (the
so-called pre-employment agreement) and
the contract itself. In any
event, in
ABSA
Bank Ltd v Fouche,
19
the Supreme Court
of Appeal (Conradie JA) stated as follows:
20
‘
The
policy considerations appertaining to the unlawfulness of a failure
to speak in a contractual context – a non-disclosure
–
have been synthesised into a general test for liability. The test
takes account of the fact that it is not the norm that
one
contracting party need tell the other all he knows about anything
that may be material (
Speight
v Glass and Another
1961 (1) SA 778
(D) at 781H-783B). That accords with the general rule
that where conduct takes the form of an omission, such conduct is
prima facie
lawful (
BOE
Bank Ltd v Ries
2002 (2) SA 39
(SCA) at 46G-H). A party is expected to speak when the
information he has to impart falls within his exclusive knowledge (so
that
in a practical business sense the other party has him as his
only source) and the information, moreover, is such that the right
to
have it communicated to him ‘would be mutually recognised by
honest men in the circumstances’ (
Pretorius
and Another v Natal South Sea Investment Trust Ltd(under Judicial
Management)
1965 3 SA 410
(W) at 418E-F).’
[51] It seems to me that, in relation
to the conclusion of the recruitment form, what would constitute the
grounds of Fipaza’s
dismissal related only to the truthfulness,
completeness and accuracy of the information that she furnished on
the form. In terms
thereof she, firstly, certified that the
information was true and correct and, secondly, declared that she
understood that if the
said information was ‘false or
incomplete’ it would constitute a ground for her dismissal. The
form does not extend
the grounds of dismissal to anything beyond the
‘false or incomplete information’ furnished and certified
true and
correct by Fipaza. It was common cause that, to the extent
that the form required of Fipaza, all the information that she
furnished
was true, complete and accurate.
[52] Mr Boda also relied on the
appellant’s right to conduct an investigation post the offer.
Indeed, the recruitment form
provided the following declaration:
‘[A]n investigation may be made of my background and used
relative to my employment status…
I also authorise my former
employers and any other persons or organisations to provide any
information that they may have about
me.’Mr Boda submitted that
the employment of Fipaza was to be regulated by what would come out
from additional information
secured through the contemplated post
offer investigation. It seems to me that this is only a self-serving
interpretation of the
contractual relationship between the parties.
The recruitment form is clearly a standard proforma used generally by
the appellant
in all recruitment instances. In my view, it is
inconceivable to imagine and highly improbable to believe that the
notion of ‘former
employers’ being authorised to provide
any information (to the appellant) that they might have about Fipaza,
was intended
by the parties to include the instance where the
appellant was itself such former employer, since any information
relating to the
work history of Fipaza (as former employee) would
have been in the appellant’s possession. In other words, in
such instance
the appellant would have been the source of the
information and would, therefore, not require to be authorised to
provide the same
information unto itself. It simply would not make
any sense and would amount to absurdity.
[53] The contract
(i.e. the accepted offer) also provided a similar caveat as the one
in the recruitment form in relation to what
would constitute
ground(s) of dismissal. The relevant clause in the contract, relied
upon by the appellant, also had to do with
the
information
which
Fipaza furnished to the appellant. I repeat this clause: ‘
‘
We
are entering into this agreement with you
based
on the information
you
have provided… Should any
information
prove to be
materially
incorrect
,
we reserve the right to withdraw from this agreement and your
services may be summarily terminated.’
(Underlined and
italicised by me for emphasis). As stated, it was common cause that
none of the information provided by Fipaza,
either in her CV, in the
recruitment form or during the interview, was incomplete, false or,
‘proved to be materially incorrect’
Instead, it is common
cause that the opposite was the true position.
[54] The contract
further provided that ‘this offer is subject to integrity
assessments…’ However, the concept
of ‘integrity
assessment’ is not defined in the contract and it is clear that
the parties are not
ad
idem
as
to its meaning in the current contractual context. According to the
Oxford English Dictionary, the word ‘integrity’
means
‘freedom from moral corruption; innocence, sinlessness (or)
soundness of moral principle; the character of uncorrupted
virtue;
uprightness, honesty, sincerity.
21
As Fipaza correctly
stated in her representations, the reason for her dismissal in 2006
had absolutely nothing to do with dishonest
or immoral behaviour on
her part. In
Sidumo,
the Constitutional
Court observed the significance of dishonesty or lack thereof in a
misconduct charge, when it stated, amongst
others, that ‘…
the commissioner cannot be faulted for considering the absence of
dishonesty a relevant factor in
relation to the misconduct
22
simply
because ‘[t]he absence of dishonesty is a significant factor in
favour of the application of progressive discipline
rather than
dismissal.’
23
Clearly,
the commissioner did not bother to consider this aspect of the matter
and in doing so he failed to apply his mind to the
evidence presented
before him.
[55] Indeed, the fact that Fipaza was
dismissed for ‘misconduct’ did not justify a carte
blanche conclusion that her
integrity level was not up to standard.
It is clear that the circumstances surrounding her failure to report
for duty timeously
were somewhat unique, although these did not serve
to exonerate her from blame, hence she was charged for misconduct and
convicted
accordingly. However, without more ado, the fact that the
misconduct did not involve dishonesty, this was a significant factor
which, in my view,would tendto militate against the finding of an
irreconcilable breakdown in trust relationship.
[56] In any event,
it was clear that the integrity assessment was conducted before the
offer of employment was made to her, despite
Mr Bodahaving initially
argued that such situation could not have been the case. He sought to
persist in his submission that in
terms of the contract, the
appellant was entitled to conduct integrity assessment after the
offer. Indeed, he appeared somewhat
surprised when the Court referred
him to the evidence of Ms Aphane at the arbitration where, during her
re-examination, she made
this point clear. The following appears from
the arbitration record:
24
‘
RE
EXAMINATION BY NORMAN REKOTSO
:
Yes. Refilwe (Aphane) the integrity assessment of the Applicant, when
was it done? Was it done prior to the offer?
MRS
HAPANI
(Wrongly spelt for Aphane): The reference checks.
MR
REKOTSO
: Yes. Anything that deals with integrity assessment, the
whole process that includes integrity assessment.
MR
HAPANI
: It was done before the letter.
MR
REKOTSO
: Before the offer letter?
MRS
HAPANI
: Before the offer letter.’
[57] In other words, Fipaza was
offered employment after the appellant was satisfied with her
integrity assessment report. It is
seriously doubtful that the
appellant would have proceeded to offer her the position if the
appellant was not so satisfied. Therefore,
it appears to me that the
condition in the contract in relation to the integrity assessment was
adequately met to the satisfaction
of the appellant.
[58] Be that as it may, the fact that
in the letter of dismissal the appellant invited Fipaza to apply for
any suitable vacancy
in the future was, in my view, a further clear
demonstration that, despite her 2006 dismissal, the appellant still
regarded her
as a person of integrity. Nothing was alleged or
suggested – let alone proved - to have tarnished Fipaza’s
integrity
during the period since she left the appellant in 2006 up
to when she applied for the new position in 2008. Besides her failure
to report back to work by the extended deadline, she was still of the
same character and integrity as she was when she left in
2006, save
that she was then possessed of better academic qualifications,
experience and skills. These were characteristics and
qualities in
her favour, but which would benefit the appellant in its business
operations.
[59] I am satisfied, accordingly, that
the contemplated ground(s) of dismissal or withdrawal of the offer,
as stipulated in the
contract and the recruitment form, pertained
either to any false or inaccurate information which Fipaza would have
wilfully provided
to the appellant by way of a positive act on her
part or a failure on her part to provide true and accurate
information as reasonably
required of her in terms of the contract or
the law, thus constituting a material non-disclosure justifying the
appellant to resile
from the contract. However, in my view, on the
facts of this case, there was no legal or contractual duty on Fipaza
to have disclosed
the circumstances under which she left the employ
of the appellant in 2006, either in her CV, in the recruitment form
or during
her interview.
[60] The commissioner’s remark
that the appellant would not have employed Fipaza had the fact been
known that she was previously
dismissed for an alleged act of
misconduct cannot strictly be factually correct because this fact was
all the time within the knowledge
of the appellant. It was common
cause that the work history records in possession of the appellant
bore this information. It was
only less than two years that Fipaza
had left the employ of the appellant and further she had reflected
both in her CV and in the
recruitment form that the appellant was her
previous employer. It was therefore unreasonable, ludicrous and
disingenuous –
to say the least - to claim that the appellant
did not have knowledge of the fact that Fipaza was previously
employed by it and
that she was dismissed in 2006 for misconduct
relating to her failure to return to work timeously after her
sabbatical leave abroad.
[61] In
Local
Road Transportation Board and Another v Durban City Council and
Another
,
25
the Appellate
Division (now the Supreme Court of Appeal) (Holmes JA) stated:
26
‘
A
mistake of law
per
se
is not an irregularity but its consequences amount to a gross
irregularity where a judicial officer, although perfectly
well-intentioned
and bona fide, does not direct his mind to the issue
before him and so prevents the aggrieved party from having his case
fully
and fairly determined.’
[62] The
commissioner’s finding that Fipaza’s non-disclosure of
her 2006 dismissal amounted to a wilful misrepresentation
suggestive
of fraud is, in my view, a further mistake of law on the part of the
commissioner. It ought to be recalled that Fipaza’s
previous
employer was the appellant itself and not the members of the
interviewing panel. Therefore, the fact that the interviewing
panel,
either through its sheer ignorance, incompetence or negligence,
failed to question Fipaza about the reason why she left
the
appellant’s employ in 2006, despite Fipaza having alluded to
this issue in her CV and in the recruitment form, does not
in my
view, legally entitle the appellant to the defence of absence of
knowledge about the information concerned. As the learned
Judge
a
quo
correctly
found, the knowledge about this information was not within Fipaza’s
exclusive knowledge. In fact, the information
was sourced in the
appellant’s personnel records to which the appellant had free
and priority access. Further, the fact that
the interviewing panel
were not part of the relevant management or administration at the
time (in 2006) and were therefore innocent
role players in this saga,
did not, in my view, serve to relieve the appellant from its duty to
check its own records. Therefore,
Fipaza’s failure or omission
to disclose the information in question did not, in the
circumstances, amount to any misrepresentation
at all, let alone a
fraudulent one. It is apparent that the commissioner’s contrary
finding in this regard was based on a
material mistake of law and
constituted a gross irregularity. The commissioner’s wrong
application of the law, in this instance,
brought about a wrong
decision in his award, which is accordingly rendered reviewable.
[63] It also seems to me that the
facts of the appellant (1) being in possession of the information
related to Fipaza’s previous
employment and dismissal in its
archives and (2) inviting her to apply for a suitable vacancy in the
future, served to demonstrate
that the appellant did not regard the
information concerned as of such high material importance as it now
professes to be the case.
Of course, it is so because her integrity
was clearly not tarnished in the eyes of the appellant as at the time
she left its employ,
notwithstanding her dismissal and the reason
thereof. There seems to be no doubt that if the appellant treated the
matter so seriously
and adversely towards Fipaza as the appellant now
wants us to believe, the appellant would never, in the first place,
have invited
her to apply for a suitable vacancy with it again. Then,
in any event, if she still applied, with or without invitation, the
appellant
would have ensured, based on the information she furnished
in her CV and in the recruitment form about her previous employment
with the appellant, that she was not offered the position.
[64] In my
conclusion, Fipaza sufficiently complied with what was reasonably
expected or required of her to do in terms of the contract
and the
law. She owed no further duty, either
ex
contractu
or
ex
lege
,
to disclose to the interviewing panel that she was dismissed by the
appellant for misconduct in 2006 because, as already stated,
this
information was not within her exclusive knowledge, but also within
the knowledge of the appellant. To sum up, her ‘failure’
to mention to the appellant (as represented by the interviewing
panel) anything about her 2006 dismissal did not, strictly speaking,
amount to a material non-disclosure, as alleged by the appellant, but
rather to a simple and immaterial omission on her part to
remind the
appellant of that fact, which, after all, was not necessary or
compulsory of her to do. The word ‘disclose’
means ‘make
secret or new information known…’
27
As I have alluded
to earlier, in this instance there was simply no secret or new
information pertinent to Fipaza’s previous
employment with the
appellant which was to the appellant unknown and which, therefore,
warranted Fipaza to disclose.
[65] Accordingly, I agree with the
learned Judge’s conclusion that ‘the commissioner failed
to consider Eskom’s
own ability to ascertain the reason for the
applicant’s previous termination from its records’ and
that had the commissioner
considered this part of the enquiry it
would have led to the unavoidable conclusion that Fipaza was, indeed,
not obliged in law
to ‘disclose’ her previous dismissal
from the appellant’s employ. On this basis, it cannot, in my
view, be said
that the so-called non-disclosure amounted to any form
of misrepresentation on the part of Fipaza. The reason for Fipaza’s
dismissal by the appellant on 4 June 2008 was, therefore, not a fair
reason.
[66] The primary
statutory remedy for a substantively unfair dismissal is
reinstatement of the dismissed employee;
28
that is, ‘it
is aimed at placing an employee in the position he or she would have
been but for the unfair dismissal.’
29
However, an order of reinstatement is not appropriate where any of
the conditions referred to in section 193(2)(a), (b) or (c)
of the
LRA are present.
30
The enquiry that
determines the issue of whether or not reinstatement should be
ordered has as its focal point the underlying notion
of fairness
between both the employer and the employee which ‘
ought
to be assessed objectively on the facts of each case bearing in mind
that the core value of the LRA is security of employment.’
31
Therefore, there should be a properly
conducted enquiry at the arbitration hearing which seeks to determine
whether or not the trust
relationship between the parties has,
indeed, been destroyed beyond repair.
32
[67] It seems to me that in the
present instance no proper enquiry was conducted to determine whether
or not the trust relationship
with Eskom had been irretrievably
destroyed. The only glimpse of evidence pertaining to the aspect of
trust relationship is that
of Mr Mondi and it appears in the
arbitration record during his evidence-in-chief as follows:
33
‘
MR
REKOTSO: How important is trust and confidence in that – in the
nature of the job that the Applicant was supposed to do?
MR
MONDI: It is crucial. It is a crucial aspect.
MR
REKOTSO: Now that you know this information that the Applicant was
dismissed, do you have trust and confidence in her?
MR
MONDI: No.
MR
REKOTSO: Do you think the element of trust and confidence between you
as a Manager and her as an Applicant can be restored, after
you have
discovered this information that she was dismissed?
MR
MONDI: No.’
[68] In my view, the issue of the
appropriate remedy was not properly canvassed during the arbitration
proceedings. There is not
enough information on the record to assist
in the determination of this important aspect of the case. Both
parties ought to be
accorded the opportunity to present submissions
thereon. The Court
a quo
was therefore not wrong, in
exercising its discretion, to remit the matter to the CCMA for the
determination of this issue.
[69] For these reasons, the appeal
must fail. However, given the fact that the matter was remitted to
the CCMA for determination
of the appropriate remedy, in which case
there is the reasonable possibility that the parties may still
reconcile and restore their
cordial working relationship, it seems to
me just, reasonable and fair that there should be no order for costs
to be granted against
the appellant both in the Court
a quo
and in the appeal.
[70] In the result, the following
order is made:
The appeal is dismissed, save that
the order of the Court
a quo
granting costs against the
appellant is set aside and substituted with the order that there
shall be no order as to costs.
There is no order as to costs in the
appeal.
____________________
NDLOVU, JA
Judge of the Labour Appeal Court
Zondi AJAand Molemela AJA concur in
the judgment of Ndlovu JA.
Appearances
:
For the appellant: Advocate FA Boda
Instructed by: Deneys Reitz, Sandton.
For the respondent: Advocate PH
Kirsten
Instructed by: Van der Merwe Du Toit
Inc., Pretoria
1
It
would appear that the award was prepared or completed on 28 August
2008 (see p.29 of the indexed papers) but only signed by
the
commissioner on 10 September 2008 (see p.33 of the indexed papers)
2
Act
66 of 1995.
3
See
annexure NPF5, at 250 of the indexed papers.
4
See
a
nnexure NPF9, at 274 of the indexed papers.
5
Annexure
NPF10, at 275 of the indexed papers.
6
Arbitration
record, at 69-70 of the indexed papers.
7
Para
3 of the award, at 29 of the indexed papers.
8
Para
(b)(3) of pre-arbitration minutes, at 19 of the indexed papers.
9
Para
5 of the award, at 30 of the indexed papers.
10
Para
(b)(1) of pre-arbitration minutes, at 19 of the indexed papers.
11
Section
194.
12
Annexure
NPF7, at 253-262 of the indexed papers.
13
Ibid,
at pages 255 and 256.
14
At
the bottom of pages 255 and 256 of the indexed papers
15
Sidumo
andAnother v Rustenburg Platinum Mines Ltd andOthers
(2007) 28
ILJ 2405 (LAC) at para 110.
16
Ibid
at para 79.
17
[2008]
3 BLLR 197
(LAC) at paras 98 and 100.
18
Shorter
Oxford English Dictionary, Vol 1, Oxford University Press, 6
th
ed
(2007) at 585.
19
2003
(1) SA 176
(SCA).
20
Ibid
a
t para 5.
21
Shorter
Oxford English Dictionary, Vol 1, Oxford University Press, 6
th
ed
(2007) at 1402.
22
Sidumo
,supra,
at para 116.
23
Ibid
at para 117.
24
Arbitration
record, at 83-84 of the indexed papers.
25
1965
(1) SA 586
(A).
26
Ibid
at 598A.
27
Compact
Oxford English Dictionary for Students, Oxford University Press, 3
rd
ed (2005), at 280-281.
28
See
section 193(1)(a) of the LRA.
29
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[2008] 29 ILJ 2507; Also reported as
[2008] 12 BLLR 1129
(CC) at para 36.
30
Mediterranean
Textile Mills v SACTWU and Others
[2012] 2 BLLR 142
(LAC) at
para 28.
31
Equity
Aviation,
above,
at para
39.
See also
Billiton Aluminium SA Ltd v
Khanyile and Others
2010 (5) BCLR 422
(CC) at paras 26-27.
32
Edcon
Ltd v Pillemer NO and Others
[2010] 1 BLLR 1
(SCA) at para 23,
See also
Mediterranean Textiles,
above
,
at para 29.
33
Arbitration
re
cord, at 91 of the indexed papers.