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[2014] ZALAC 112
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Dept of Home Affairs v Ndlovu (DA11/2012) [2014] ZALAC 112 (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.