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[2014] ZALAC 11
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Department of Home Affairs and Another v Ndlovu and Others (DA11/2012) [2014] ZALAC 11; [2014] 9 BLLR 851 (LAC); (2014) 35 ILJ 3340 (LAC) (27 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case no: DA11/2012
In
the matter between:
DEPARTMENT
OF HOME
AFFAIRS First
Appellant
THE
MINISTER OF HOME
AFFAIRS Second
Appellant
and
SIMPHIWE
EMANNUEL NDLOVU
First
Respondent
PATRICK
STILLWELL
N.O. Second
Respondent
THE
GENERAL PUBLIC SERVICES
SECTORAL
BARGAINING
COUNCIL Third
Respondent
Heard:
17 September 2013
Delivered:
27 March 2014
CORAM:
Tlaletsi DJP, Dlodlo et
Mokgoatlheng AJJA
JUDGMENT
DLODLO
AJA
[1] This
appeal concerns the first respondent’s dismissal by his
erstwhile employer,
the first appellant. He referred a dispute of
unfair dismissal to the third respondent. Conciliation of the dispute
was unsuccessful
and was referred to arbitration by the second
respondent, a commissioner acting under the auspices of the third
respondent. The
second respondent issued an award in which he found
the dismissal of the first respondent to have been fair.
[2] Aggrieved
by the award of the second respondent, the first respondent
instituted review proceedings
in the labour court seeking an order
reviewing and setting aside of the award. He succeeded to persuade
the Court
a quo
and it found that his dismissal was
substantively unfair and reinstatement with retrospective effect was
ordered accordingly. I
hasten to add that no costs order was made by
the Court
a quo
. Leave to appeal having been sought and
granted the matter is now before this Court.
[3] There
is also an opposed application by the appellant for condonation of
its non-compliance
with the time period prescribed for the filing of
the record and the reinstatement of the Appeal. In the interest of
orderliness
and practicality and to avoid piecemeal adjudication of
the dispute, both the condonation application and the Appeal are
heard
together.
Background facts
[2] On
or about 18 September 2006, the first respondent applied for the
advertised post of Area
Manager, Kwazulu-Natal North, Richards Bay.
He submitted an application form together with his
Curriculum
Vitae
(“the CV”) wherein he recorded his tertiary
qualifications as follows:
‘
1992-2001:
Natal Technikon Durban.
Academic
Qualification: Natal Diploma in Marketing
2002-2003: Durban
Institute of Technology
Academic
Qualification: Bachelor of Technology Marketing
2005-2006: University
of Kwazulu-Natal (UKZN)
Currently completing
the Master in Business Administration – MBA The Graduate of
Business (GSB).’
[3] The
first respondent was interviewed for the position by the appellant’s
interviewing
panel of four persons on 18 January 2007. The interview
of the first respondent was successful and he was appointed with
effect
from 9 July 2007. It subsequently came to the attention of the
appellants that the first respondent had not yet attained the
Bachelor
of Technology Marketing Degree at the time that he was
appointed to the post. He in fact only qualified for that degree on
10 December
2008. The degree was only conferred on the first
respondent on 17 April 2009.
[4] In
November 2007, the first respondent was charged with several acts of
misconduct
which included the following allegations:
‘
[a]
On or about 18 September 2006 you signed and declared the following
on the Z83 form:
“
I
declare that all the information provided (including any attachments)
is complete and correct to the best of my knowledge. I understand
that any false information supplied could lead to my application
being disqualified or my discharge if I am appointed.
The declaration deposed
to is not true in that on your CV it is stated that you are in
possession of Technology Marketing Degree
whereas you had no such
qualification.
[b]
Your actions or omissions set out above, individually or
collectively:
(i)
constitute gross dishonesty
alternatively gross negligence;
(ii)
constitute misrepresentation;
(iii)
breach your obligations of good faith, trust and confidence owed to
the Department;
(iv)
breach Chapter 7 of the SMSA Handbook,
specifically item 6 of Annexure A in that your conduct
prejudiced the
administration, discipline and efficiency of a department, office or
institution of the State.’
Discussion
[5] It
is prudent to precede this discussion with consideration of a
condonation application.
Managie Pillay, the senior State Attorney
and the deponent to the Founding Affidavit in the application for
condonation makes it
clear that this condonation application is
brought in terms of Rule 5(17) of the Rules of this Court. The
appellants were required
in terms of Rule 5(8) of the Rules to
deliver the record within 60 days calculated from the date of the
order granting leave to
appeal. That did not happen. On the contrary,
the record was filed on 22 November 2012 approximately two and a half
weeks outside
the stipulated time period. The stipulated time period
expired on 5 November 2012. According to Attorney Pillay, on 26
September
2012, the State Attorney appointed Appeal Document Services
to prepare the appeal record in this matter. There was some exchange
of correspondence regarding this matter between the State Attorney
and one Ms Gardner of the Appeal Document Services wherein certain
queries were raised and attended to. The correspondence exchanged is
annexed to the Founding papers and it speaks for itself. The
Appeal
record was delivered by Ms Gardner only on 21 November 2012. I hasten
to mention that I gather from the founding papers
that the appellants
had outsourced the preparation of the Appeal record to Appeal
Document Services which is a body that specialises
in the preparation
of such record. This (as we are told) is an effort to ensure that the
record complies with the requirements
set out in the Rules of Court.
It would appear that the appellants had no control over the time it
took the Appeal Document Services
to compile the record and have same
delivered back to them.
[6] Even
though this application is opposed, my reading of the opposing papers
has not
revealed that the assertions by the appellants are disputed
or even doubted. Importantly, in terms of Rule 5(17), the Appeal is
deemed to have been withdrawn if the record is not delivered within
60 days and if the time period was not extended by consent
between
the parties prior to the
dies
expiring. Attorney Pillay
did not request an extension of the time period for the filing of the
record prior to it expiring.
Importantly, on 16 November 2012, a
letter addressed to the State Attorney from Forster Attorneys (acting
on behalf of the first
respondent) was received and it stated
pertinently that “
For the record, our client would not have
consented to any extension of time (had you requested same
timeously)…”
On the strength of the letter quoted
above, it clearly would have served no purpose even if the appellants
requested the first respondent
(prior to the expiry time period) to
consent to any conceivable extension. This application was thus
necessitated by the above
scenario
. The appellants maintained
that they have good prospects of success.
[7] Essentially
in applications for condonation, what is needed is an objective
conspectus
of all the facts. Thus the importance of the issues
between the parties and the strong prospects of success may tend to
compensate
for a long delay. In
Brummer
v Gorfil Brothers investments (Pty) Ltd and Others,
[1]
the Court gave the following guiding exposition in matters such as
the present one:
‘
It
is appropriate that an application for condonation be considered on
the same basis and that such an application should be granted
if that
is in the interests of justice and refused if it is not. The
interests of justice must be determined by reference to all
relevant
factors including the nature of the relief sought, the extent and
cause of the delay, the nature and cause of any other
defect in
respect of which condonation is sought, the effect on the
administration of justice, prejudice and the reasonableness
of the
applicant’s explanation for the delay or defect.’
[8] Of
course it is well established that the factors in a condonation
application “
are
not individually decisive but are interrelated and must be weighed
one against the other.”
See
Melanie
v Santam Insurance Co Ltd
1962 (4) SA 531.
In
Jansen
v General Public Service Sectoral Bargaining Council and Others,
[2]
the Labour Court applying the decision in
PPWAWU
and Others v AF Dreyer and Co (Pty) Ltd
[1]
[1997] 9 BLLR 1141
(LAC)
stated
that:
‘
Even
if it is found that explanation does not constitute a reasonable
explanation it will not necessarily be regarded as an absolute
bar to
condonation.
’
I am of the view that
there are merits in the application for condonation. In any event, it
is in the interests of justice that
the issues between these
litigants be ventilated in an open Court. Granting this application
shall in no way prejudice the first
respondent. On the contrary, this
will enable him as well to have his day in Court. Even though the
first respondent opposed this
application, I am of the view that no
order should be made that he pays costs associated solely with his
opposition to the condonation
application. It remains in the interest
of the public as well that matters of this nature be fully ventilated
so that a wrongdoer
does not profit by his or her wrongdoing. The
interest of justice warrants condonation being granted and that the
merits are properly
ventilated in an open Court.
[9] Turning
to the Appeal, clearly the enquiry made by the court
a quo
was
somewhat narrowed in that it seemingly turned on whether the first
respondent disclosed to the panellists that interviewed
him that the
degree Bachelor of Technology Marketing had not yet been conferred on
him. Importantly, the first respondent faced
the charges of
misconduct as fully set out
supra
. It remains common cause
that the information set out in the CV was not at all complete and
accurate in that he did not hold that
degree. Simply put, the first
respondent had not even completed all the requirements for the
Bachelor of Technology Marketing Degree
nor had the degree been
conferred upon him.
[10] The
first respondent’s counsel sought to argue that the arbitrator
ignored the evidence as to
what transpired at the interview before
the panellists recommended the appointment by the first appellant. I
fail to fully comprehend
this submission. The matter is made to
appear complicated when it is in fact simple. The first respondent
contended that he disclosed
to the interviewing panellists that he
had not completed the degree which is the subject matter of this
matter. The fact is simply
why did the first respondent misrepresent
the factual situation in his CV. Notably in the same CV, the same
first respondent did
make it clear that he was not the holder of an
MBA Degree. If he intended to be truthful with regards to the
Bachelor of Technology
Marketing Degree why did he not describe that
he had not completed same in the same manner as he did in respect of
the MBA Degree?
This is a rhetoric question that constantly comes to
mind whenever I give consideration to this aspect of the matter. The
fact
is unlike his disclosure in respect of the MBA Degree, the first
respondent failed to disclose in his CV that he was “currently
completing (studying)” his Bachelor of Technology Marketing
Degree.
[11] Why
did the first respondent list the Bachelor of Technology Marketing
Degree in his CV? I would be
slow in concluding that he did not
intend this to have certain consequences. Clearly he listed this
degree amongst his “Academic
Qualifications” with the
sole intention of impressing the panellists. He was creating a false
impression that he was in fact
in possession of such a qualification.
Undoubtedly based on common cause facts alone, in my view, the
appellant proved the charge
of gross misconduct on the part of the
first respondent. We bear in mind though that because this was not a
criminal case in that
sense it was hardly necessary to prove that the
first respondent’s misrepresentation induced the first
appellant to appoint
him to the post as it did.
[12] That
it made him a worthy candidate compared to others is not open to any
doubt. However, in the determination
of the question whether the
first respondent was in any manner guilty of misconduct it certainly
would suffice to show that the
representation in his CV was false.
Whether the first respondent, subsequent to the interview, disclosed
to the panellists that
the Bachelor of Technology Marketing Degree
had not yet been conferred upon him, would not make him not guilty of
the transgression.
If established as a fact, it would probably serve
as a mitigating factor which would have to be taken together with
other factors
both aggravating and mitigating in the assessment of
the sanction. It does not mean that if such disclosure was accepted
as having
taken place the first respondent would not have deserved
the sanction of dismissal from the employment of the appellant. Of
course
the substantive fairness of the dismissal does not seem to
have turned on the latter aspect.
[13] It
is important to note that the first respondent was charged with
making false disclosure in his CV.
He was not facing a charge of
“
perpetrating a lie during the interview”
as the
court
a quo
apparently seemingly thought. As Mr Moerane
correctly pointed out, there seems to be an apparent failure on the
part of the court
a quo
to distinguish between the initial act
of gross dishonesty as contained in the CV and any conceivable
subsequent events at the interview.
Indeed, the issue of alleged
disclosure at the interview was not at all properly ventilated (as it
were) in the evidence presented
at the arbitration. Consequently
there was no sufficient information on the record to have enabled the
court
a quo
to reach the conclusion that the evidence
“
indicate without doubt that the applicant indeed disclosed
to the panelists that he did not have a Bachelor of Technology
Marketing
Degree.”
There is simply no evidential material
that justifies the latter finding. In fact, the only witness who was
part of the interviewing
panellists stated categorically that he did
not remember the alleged disclosure at all. The witness I have just
referred to is
one Jan Manji. He added that “
if we had these
discussions I would have said ‘re-submit your CV’ I am
not only taking notes. I am also checking compliance.
I also advise.”
[14] The
fact that the misrepresentation in the CV might very well not have
induced the first respondent’s
appointment to the post most
certainly does not detract from the fact of the first respondent’s
initial dishonesty. The dishonesty
as contained in the CV is
ultimately what underpins the substantive fairness of the first
respondent’s dismissal. Why did
the first respondent put in his
CV that which is untrue? He knew how to describe MBA degree which was
then unfinished. He could
have described the Bachelor of Technology
Marketing Degree similarly if he found it necessary to mention it at
all in his CV. John
Grogan in his work
Dismissal,
(Juta &
Co. Ltd First published 2010, republished 2012) says the following
about dishonesty at page 188):
‘“
Dishonesty”
is a generic term embracing all forms of conduct involving deception
on the part of employees. In criminal law,
a person cannot be
convicted of dishonest conduct unless that conduct amounts to a
recognized offence. However, in the employment
law, a premium is
placed on honesty because conduct involving moral turpitude by
employees damages the trust relationship on which
the contract is
founded. The dishonest conduct of employees need not therefore
constitute a criminal offence. “Dishonesty”
can consist
of any act or omission which entails deceit. This may include
withholding information from the employer, or making
a false
statement or misrepresentation with the intention of deceiving the
employer…’
The above extract was
referred to with approval by the Constitutional Court in
Chemical
Energy Paper Printing Wood & Allied Workers Union
on
behalf of
Hlebela and Lonmin Precious Metals Refinery
(2011) 32 ILJ 2782 (CC) at paragraph 69. A misrepresentation by an
employee (as to his qualification and skills etc.) before the
commencement of employment has been held sufficient to warrant
dismissal even if it is discovered some time later and the employee
has rendered satisfactory performance. In
Auret v Eskom Pension &
Provident Fund
(1995) 16 ILJ 462 (LC), the dismissal of an
employee was upheld because he had not disclosed the true extent of
fraud in which
he had been involved while working for his previous
employer.
[15] In
Hoch v Mustek Electronics (Pty) Ltd
(2000) 21 ILJ 365 (LC),
the court held that the employer was justified in terminating the
contract of an employee who had misrepresented
her qualifications
prior to her appointment. The same conclusion was reached in
Boss
Logistics v Phopi and Others
[2010] 5 BLLR 525
(LC) where a
senior employee was found to have inflated his qualifications and
experience in his CV. In the latter case, the court
held that to
accept that such an employee is entitled to guidance, training or
assistance before work performance would be to reward
the employee
for his dishonesty.
[16] Courts
and commissioners frequently use the ‘test’ in assessing
whether dismissals are appropriate
and the effect that the employee’s
misconduct would have on the employment relationship. See, for
example,
Korsten v Macsteel (Pty) Ltd and Another
[1996] 8
BLLR 1015
(IC). It is appropriate to quote from the Award by the
Commissioner in order to demonstrate this. At paragraph 5.8 of the
award,
the Commissioner had the following to say:
‘
5.8
Having found that respondent has proved the first aspect of the
charge it remains to consider whether the sanction imposed was
fair.
Applicant occupied a very senior position in the Department of Home
Affairs. He occupied it at the time when our society
was being
sensitized, daily, to the need for clean government and integrity on
the part of officials. Applicant’s behaviour
in my view fell
considerably short of what is required and expected of senior
government officials. In the light thereof I am of
the view that the
sanction imposed was fair.’
There are many ways
courts use in this regard. Sometimes it would be said that the
employment relationship has been rendered intolerable.
These are ways
and means of establishing whether employer can reasonably be expected
to continue with the contractual relationship
with the employee
concerned. In
casu
a larger employer of the size of the first
appellant will certainly have fundamental difficulty if it does not
adopt a very strict
stance in misconducts similar to the one the
first respondent was found guilty of. Virtually all its prospective
and present employees
will simply do the same. However, there is no
evidence on record in the instant matter that the misconduct
complained of has resulted
in an irreparable damage to the employment
relationship. It is obligatory that an employer should produce such
evidence to justify
a dismissal unless of course that conclusion of a
broken employment relationship is apparent from the nature of the
offence and/or
the circumstances of the dismissal. See
Edcon Ltd v
Pillemer N.O. and Others
(2008) 29 ILJ 614 (LAC).
[17] Serious
offences often attract the sanction of dismissal. The Code of Good
Practice gives as examples
of offences that may justify dismissal as
gross dishonesty, wilful damage to employer’s property, assault
and gross insubordination.
The list is not intended to be a complete
one nor does it take away the power to determine appropriate
sanctions regard being had
to evidence led and circumstances of each
individual case. In my view, the arbitrator’s decision was not
shown not to have
been a decision which a reasonable decision-maker
could not have reached. (See
Sidumo
and Another v
Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC)).
[18] There
are numerous respects pointed out in the record of proceedings that
show that the first respondent
has an inclination to shy away from
the truth. I am not going to document these in this judgment. But the
record speaks louder
in this regard. The first respondent was
dishonest in many other respects in this matter.
Costs
[19] Ordinarily
in civil proceedings, the normal rule with regards to costs is that a
successful party is
entitled to recover its costs from the
unsuccessful party. However, the Labour Court which is described as a
Court of law and equity
may make orders for the payment of costs
‘
according to the requirements of the law and fairness’
.
See Section 162(1) of the LRA. There are certain considerations
documented in section 162(2). In the instant matter, the first
respondent knew fully well that he dishonestly disclosed an untruth
in his CV with regard to the qualification he did not have.
At the
initial stage of hearing he was found guilty and he persisted with
the matter up to the third respondent. He was correctly
found at this
stage to have been properly dismissed. He then moved to the Labour
Court. That he is responsible for all the costs
that built up in this
matter is, in my view, beyond any question. In my view, it shall not
accord with justice to expect the appellant
not to recover its costs.
I hold the view that to order that costs be paid by the first
respondent accords with the requirements
of the law and fairness.
Order
[20] In
the circumstances, I make the following order:
(a)
Condonation application is granted.
(b)
The appeal succeeds.
(c)
The first respondent shall pay costs hereof
including those occasioned by employment of two counsel by the
appellant.
_______________
Dlodlo AJA
Acting
Judge of the Labour Appeal Court of South Africa
Tlaletsi DJP and
Mokgoatlheng AJA concur in the judgment of Dlodlo AJA
Appearances:
For
the First and Second Appellants: Adv M.T.K
Moerane SC
Adv
L.R. Naidoo
Instructed
by:
The State Attorney
For
the First Respondent:
Forster Attorneys
[1]
[2000] ZACC 3
;
2000
(5) BCLR 465
(CC) at para 3.
[2]
Unreported
decision case number JR1470/08 at para 5.