About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2014
>>
[2014] ZALAC 47
|
|
Ntoagae and Another v Anglo Platinum Ltd (Mototolo JV Concentrator) (JA8/2012) [2014] ZALAC 47 (19 September 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA8/2012
In the matter between:
TSELENG ENOCH
NTOAGAE
First Appellant
NATIONAL UNION OF
MINEWORKERS
Second Appellant
and
ANGLO PLATINUM LIMITED
(MOTOTOLO JV
CONCENTRATOR)
Respondent
Heard:
5 September 2013
Delivered:
19 September 2014
JUDGMENT
MOKGOATLHENG AJA
[1] This is an appeal
against the judgment and order of the Labour Court (Francis J) in
which the first respondent’s application
to review and set
aside the commissioner’s award was upheld. The appeal is by the
leave of the
court-a-quo
.
[2] Two main issues arise
from the appeal:
(a)
firstly, whether the
court-a-quo
was correct in dismissing the
first appellant’s point in
limine
to the effect that the
respondent did not have
locus standi
to bring the review
application as no employment relationship existed between the first
appellant and Anglo Platinum Limited; and
(b)
secondly, whether the
court-a-quo
was correct in upholding the
review application and setting aside the commissioner’s award
(in which he found the first appellant
not guilty of dishonesty) as
unreasonable.
[3] The first appellant
contends that Francis J erred in dismissing the point in
limine
that the respondent was not entitled to institute the review
application. There is no merit in this submission. In the arbitration
proceedings the commissioner sought clarity regarding the
relationship between Mototolo Joint Venture Concentrator and Anglo
Platinum
Limited. The first appellant’s attorney confirmed that
Mototolo Joint Venture Concentrator was not a legal entity but was
an
unincorporated joint venture between Rustenburg Platinum Mines and XK
Platinum Partnership (a partnership between Xstrata South
Africa
(Pty) Ltd and Kagiso Platinum Venture (Pty) Ltd owned by Anglo
Platinum Limited, consequently, the
court-a-quo
correctly
dismissed the first appellant’s point in
limine
.
[4] Mototolo Joint
Venture Concentrator as a Joint Venture is part of Anglo Platinum
Limited and is referred to in the founding
affidavit as belonging to
Anglo Platinum Limited. The Mototolo Joint Venture Concentrator is
solely managed by Anglo Platinum Limited.
[5] Significantly, the
first and second appellants request to the CCMA to arbitrate the
dispute cites the first appellant’s
employer as ‘
Anglo
Platinum Mototolo JV Concentrator’
. In terms of the Request
for Arbitration the first appellant’s union, The National Union
of Mine Workers pertinently states
under Dispute Details under Case
Reference Number LP6311/08, that the case is between NUM obo Ntoagae
Enoch and Anglo Platinum
Mototolo JV Concentrator, that the issue in
dispute is: “
the applicant was unfairly dismissed by the
employer after he had resigned with immediate effect.”
[6] The Disciplinary
Complaint Form pertinently shows that it was issued by Anglo Platinum
Mototolo JV Concentrator which is referred
to as the entity which is
prefers charges against the first appellant. The first appellant’s
employment contract pertinently
shows that it was issued by Anglo
Platinum Limited Human Resources Division. The first
appellant’s resignation letter
dated 26 September 2008
addressed to the Manager Mototolo JV Concentrator was responded on
behalf of Mototolo JV Concentrator by
Anglo Platinum Limited.
[7] The first appellant’s
payslip and conditions of service are issued in the name of
Rustenburg Platinum Mine Ltd which is
a subsidiary of Anglo Platinum
Limited. The claim forms submitted by the first appellant bear the
name Mototolo JV Concentrator
and also refer to the ‘
Anglo
Platinum tip-off information line
’.
[8] The Business Travel
Claim Forms bear the name of Anglo Platinum Mototolo Joint Venture
Concentrator. The Anglo Platinum Group
Human Resources Policy which
came into operation on 12 May 2005 provides that the rules applicable
to the re-imbursement of business
travelling expenses incurred by
employees for business purposes and the scope of the said policy
shall apply to all enrolled employees
of Anglo Platinum, its managed
joint ventures and subsidiaries.
[9] The first appellant
was an environmental assistant engaged by the Mototolo JV
Concentrator and had a green reporting line to
the Anglo Platinum
Limited Environmental Department and also a red reporting line to his
superior Van Heerden. Consistent with
the respondent’s human
resources policy, the trips the first appellant undertook and which
formed the subject of his dismissal
were to environmental meetings
conducted under the auspices of Anglo Platinum Limited.
[10] Because Mototolo
Joint Venture Concentrator is a managed joint venture owned by Anglo
Platinum Limited, the latter’s
policies and procedures are
applicable to Mototolo Joint Venture Concentrator.
[11] Having regard to the
above exposition it is disingenuous of the first appellant to dispute
the respondent’s
locus standi
by alleging that there was
no evidence before
court-a-quo
to come to the finding that
Mototolo Joint Venture Concentrator was a joint venture owned and
managed by Anglo Platinum Limited.
It follows that there was an
employment relationship between the first appellant and the
respondent, which entitled it to be a
party to these proceedings as
it has the
locus standi
. See
CAWU v Grinaker Civil
Engineering
[2003] 1 BLLR 5
(LC).
The Factual Matrix
[12] The respondent’s
principal objective is to mine platinum and conduct associated
activities. On 1 August 2006 the first
appellant was employed by the
respondent as an environmental assistant reporting to his supervisor
Van Heerden. During August 2008
the respondent received information
that the first appellant had submitted fraudulent travel claims.
Consequent to this information
the respondent conducted a forensic
investigation which revealed that the first respondent had submitted
fraudulent travel claims
in respect of 21 May 2008, 22 May 2008, 10
July 2008 and 15 July 2008 in total amounting to R6 832.80.
[13] On 21 May 2008 the
first appellant travelled from Modikwa Platinum Mine to Bela Bela in
a vehicle owned by Modikwa Platinum
Mine, a joint venture entity
owned by the respondent. The first appellant lodged a claim for the
round trip distance of 360 kilometres.
On 22 May 2008 the first
appellant travelled from Bela Bela to Modikwa Platinum Mine and she
again used a Modikwa Platinum Mine’s
vehicle. The first
appellant again lodged a claim for a round trip distance of 360
kilometres. The claims amounted to R2 102.40.
[14] On 10 July 2008, the
first appellant travelled from Burgersfort to Rustenburg to attend a
training course in a vehicle owned
by Twickenham Mine which is a
wholly-owned subsidiary of the respondent. On the same day the on his
return, the first appellant
travelled in a vehicle belonging to
Lebowa Platinum Mine, a joint venture owned by the respondent. The
first appellant lodged a
round trip claim for a distance of 900
kilometres amounting to R2 628.00.
[15] On 15 July 2008 the
first appellant travelled to Johannesburg with Ms Mposi, an
environmental officer employed by Twickenham
Mine in a vehicle owned
by the latter to attend a meeting. The first appellant and Ms Mposi
returned from Johannesburg on 17 July
2008 using the said Twickenham
Mine’s vehicle. The first appellant lodged a claim for a round
trip distance of 720 kilometres
amounting to R2 102.40.
[16] The respondent’s
business travel is regulated by the Anglo Platinum Limited’s
Group Human Resources Business Reimbursement
Travel Policy which
pursuant to
clause 2
thereof applied to all its employees and
the employees of its joint ventures and subsidiaries.
[17] The respondent’s
Reimbursement Travel Policy was displayed on the notice board at the
employee benefits office and was
also available on the respondent’s
intranet. All employees were inducted with regard to the respondent’s
travel policy.
The first appellant also discussed the respondent’s
travel policy with his immediate supervisor Van Heerden when new
travel
rates pertaining to the said business travel policy were
introduced.
[18] Clause 8.1 of the
Policy Rates and Conditions provides as follows:
‘
Rates
and conditions of payment should as far as possible be sufficient to
avoid having an employee experience economic loss as
a result of
incurring reasonable expenses while travelling on company business.
The underlying principle to be applied is that
employees would
neither lose nor gain financially for business related travel and any
rebates or discounts must be taken advantage
of to reduce claims.
Travel expenses must
be properly documented and approved. It is each employee’s
responsibility to adhere to the company policy
when involved with
expenditure on behalf of the Company. Managers must be satisfied that
travel requests and claims are consistent
with this policy and that
they are in pursuit of genuine Company business.’
[19] Clause 9.10 which
deals with public transport provides that:
‘
Employees
making use of public transport (Mini busses, busses, taxi’s,
etc) for any company related business travel (Not from
home to work
and back) will be reimbursed at R2.92/Km.’
[20] The first appellant
did not make use of private or public transport on any of the
abovementioned trips, but nevertheless submitted
travel claims to the
respondent for reimbursement. Pursuant to the forensic
investigation the first appellant was charged
with committing acts of
dishonesty pertaining to the lodgement of travelling claims without
having incurred any travelling expenses,
the first appellant was
found guilty and dismissed.
The Arbitration
[21] Subsequent to the
first appellant’s dismissal, the second appellant referred the
dispute to the CCMA for conciliation.
At the arbitration only
substantive fairness was placed in dispute. Van Heerden who testified
on the respondent’s behalf
inter alia
stated that the
first appellant was aware of the respondent’s travel policy as
he had personally explained it to him when
the latter had submitted
travel claims for attending work on Saturdays, but such claims were
not allowed. Van Heerden disputed
that an employee could claim
travelling expenses in terms of the respondent’s Business
Reimbursement Travel Policy if he
or she had not incurred any out of
pocket expenses for such travelling.
[22] Van Heerden
testified that he had erroneously approved the first appellant’s
travelling claims because the latter had
informed him that he had
used public transport for such travelling trips. Employees cannot
submit travel claims if they did not
pay for petrol or public
transport as a result the first appellant’s conduct was
fraudulent. As a result of the first appellant’s
fraudulent
conduct, the employment relationship between himself and the first
appellant had broken down irretrievably.
[23] The first appellant
testified
inter alia
that Van Heerden did not explain the
respondent’s Business Reimbursement Travel Policy to him as
enunciated by the respondent’s
Human Resources Department
Moldenhauer his previous supervisor had explained the respondent’s
travel expense policy to him
as follows: “
whenever an
employee travels on a business trip and is provided with transport by
the employer he is not entitled to claim. But
the policy also
provided that should the employer not provide transportation for the
employee for business travel then an employee
is entitled to claim
for travelling at a rate pre-determined by the employer per kilometre
travelled.”
The Award
[24] In his award the
commissioner in respect of
paragraph 9.10
of the respondent’s
travel policy found that reimbursement in terms thereof did not mean
reimbursement for expenses actually
incurred, but meant compensation
payable to the employee, as the amount payable is based on the
distance travelled.
[25] The commissioner
also found that the respondent’s travel policy does not require
an employee to prove actual expenses
incurred but merely required
that the employee should have conducted such travelling either by
public or private transport. The
first appellant did not commit fraud
in claiming travel costs, consequently he had to be reinstated.
[26] The respondent’s
travel policy provided payment per kilometre travelled, which meant
that the payment was a form of compensation
and not an actual
reimbursement. The first appellant conceded that the aim of the
respondent’s travel policy was to ensure
that employees ‘
did
not lose out financially when doing things for the company.
’
He accused Van Heerden of being untruthful and admitted that the
incident impacted on the relationship with Van Heerden.
[26] At the arbitration
the first appellant did not call Moldenhauer to testify on his behalf
regarding the existence of this alleged
travel policy, nor did he
present any documentary evidence in support of this travel policy.
Van Heerden’s evidence regarding
the principles applicable to
the respondent’s travelling policies that business travel is
reimbursive of nature and not compensatory,
is consistent with the
prescripts of the respondent’s Business Reimbursement Travel
Policy.
The Review Judgment
[27] The court-a-quo
correctly found that the commissioner was faced with two
diametrically opposed versions regarding the applicable
travel policy
and also regarding whether the first applicant had told Van Heerden
that he had used public or private transport
in travelling to the
respondent’s meetings.
[28] The finding by
Francis J that the first appellant was dishonest regarding the
applicable travel policy and how he understood
it, is supported by
the respondent’s Business Reimbursement Travel Policy. On the
probabilities, the first appellant was
fully aware of the content of
such policy because the reimbursement rate utilised by the first
appellant for allegedly for using
public transport is recorded in
Clause 9.10 of the respondent’s travel policy as R2.92 per/km
in the first appellant’s
claims which is the same reimbursement
rate set out. Further the
court-a-quo
correctly took into
account the fact that the respondent’s travel policy makes it
clear that employees are reimbursed for
business travel in order not
to suffer losses or gain financially.
[29] It is common cause
that the first appellant submitted three travel claims in which he
claimed a total of R6 832.80 for
having travelled 2340 km’s
on company business at a rate of R2.92 per km, and that the claims
were paid. It is also common
cause that on all three occasions, the
first appellant secured a lift in vehicles belonging to Modikwa Mine
(on the first occasion)
and to Twickenham Mine (on the second and
third occasions) respectively and that he did not incur any travel
expenses whatsoever.
[30] The first
appellant’s argument that Van Heerden’s predecessor
Moldenhauer verbally explained a different travel
policy to the
respondent’s applicable Business Reimbursement Travel Policy is
unsustainable because the respondent’s
travel policy came into
operation on 12 May 2006. Consequently, when the first
appellant commenced employment on 1 August
2006 the respondent’s
travel policy was in existence and as practice the probability is he
was inducted into same.
[31] The learned judge
correctly found that Moldenhauer must have explained the respondent’s
Business Reimbursement Travel
Policy to the first appellant after his
employment on 1 August 2006 as the travel policy became applicable on
12 May 2006.
[32] In any event, on the
probabilities it cannot be possible that Moldenhauer misrepresented
the Anglo Platinum Limited Group Human
Resources Business
Reimbursement Travel Policy to the first appellant by stating that as
long as the employer had not provided
transport and the employee has
engaged in business related travel, the employee was entitled to
claim irrespective of whether the
employee did not incur any travel
expenses.
[33] The commissioner
accepted that the Anglo Platinum Limited Group Human Resources
Business Reimbursement Travel Policy was applicable,
and implicitly
that the first appellant was aware thereof. The commissioner’s
conclusion that the policy provided for the
payment of the claims
submitted by the first appellant irrespective of whether he had
incurred travelling costs, and that he was
not guilty of misconduct
is unreasonable in that it is wholly at odds with:
(i)
the respondent’s Business
Reimbursement Travel Policy which the commissioner had accepted as
the respondent’s applicable
travel policy;
(ii)
the principle underlying the travel policy
that employees are reimbursed for ‘
expenses
incurred’
);
(iii)
the principle underlying the policy that
employees should not be out of pocket for having incurred travel
expenses on official business
and that they should ‘
neither
lose nor gain financially
’;
(iv)
the fact that the rate of R2.92/km is the
rate at which employees are ‘
reimbursed
’
for travelling on business by using public transport; and
(v)
the text of the relevant travel claim forms
completed by the first appellant, read (at the foot thereof) that
‘
claims for refunds should be
submitted…’
[34] The
court-a-quo
,
correctly found that the commissioner did not apply his mind to the
crucial dispute, namely what transpired between the first
appellant
and Van Heerden at the time the first appellant presented the travel
claims to him for authorization.
[35] On the probabilities
Van Heerden’s testimony that the first appellant told him that
he had made use of ‘
public transport’
(which would
have entitled him to the reimbursement of expenses), sounds more
probable and plausible, because Van Heerden would
not have authorized
the claims if he had known that the first appellant had secured a
lift in vehicles belonging to the respondent’s
joint ventures
and subsidiaries as the first appellant would not have incurred any
expenses in utilising such transport, consequently
the first
appellant was not entitled to claim reimbursement was due to the
first appellant.
[36] The absurdity and
unreasonableness of the commissioner’s interpretation of Clause
9.10 of the respondent’s Business
Reimbursement Travel Policy
is demonstrated by the concession made by the first appellant‘s
assertion that because he had
travelled with two colleagues employed
at Modikwa and Twickenham Mines on the days in question,
consequently, all three of them
qualified to submit claims, despite
none of them having actually incurred any travel expenditure.
[37] Seen from this
perspective the commissioner’s interpretation of Clause 9.10 of
the respondent’s travel policy is
not logical and does not make
commercial sense. The suggestion is utterly untenable that an
employer would compensate an employee
for not having incurred any
travelling expenses but compensate him for having travelled in the
respondent’s subsidiary’s
or joint venture’s motor
vehicles to attend its own meetings.
[38] There is no merit in
the first appellant’s counsel’s submission that the claim
form does not enquire into the mode
of transport used, nor does it
prescribe that when one travels in a vehicle owned by the
respondent’s subsidiary or joint
venture, one is not entitled
to lodge a claim. Further there is no merit in the submission that
Clause 8.1 of the respondent’s
travel policy does not refer to
actual expenses incurred travelling, nor does it limit payment to
reimbursement with regard to
reasonable expenses incurred whilst
travelling.
[39] The aforementioned
submissions are unsustainable because the principle underlining the
respondent’s Business Reimbursement
Travel Policy is that
employees should not be out of pocket and neither should they lose
nor gain financially if they have incurred
travelling expenses.
[40] The first
appellant’s counsel’s submission that whether the
respondent’s travel policy made provision for
reimbursement or
compensation was irrelevant because no proof of actual expenses
incurred was required to validate the lodgement
of the claims, has no
merit. Neither does the first appellant’s counsel’s
argument that the travelling expenditure
is not necessarily tied to
the actual disbursements incurred have merit, because counsel
conceded that concepts predicating reimbursement
and compensation
have totally different meanings, because reimbursement refers to an
exigency where one has disbursed monetary
expenditure while
compensation refers to the payment of a version after having
performed an obligation.
[41] A reviewing court is
entitled to analyse the reasons predicating an award, but in order
for an award to be struck down it must
be substantially unreasonable.
An applicant in a review application must show that both the reasons
and the outcome are unreasonable
having regard to the consideration
of the totality of the evidential material before a commissioner.
[42] In the present
matter, the commissioner misdirected himself in that he did not
consider the central dispute, namely, that the
first appellant
presented fraudulent travel claims to Van Heerden for authorisation.
Further with regard to the interpretation
of the Anglo Platinum
Limited Group Human Resources Business Reimbursement Travel Policy
and the conclusion the commissioner reached
in respect thereof that
the first respondent was entitled to claim for travelling on business
to attend appellant’s meeting
without having incurred monetary
expenditure having regard to the totality of the evidence the
commissioner’s conclusion
was unreasonable.
[43] In evaluating
whether the commissioner’s conclusion in interpreting the
respondent’s travel policy and his finding
that the first
appellant was entitled to the payment of his travel claims because he
did not commit fraud, the question is would
a reasonable commissioner
have come to the same conclusion.
[44] It is patently clear
that no reasonable commissioner applying himself with any degree of
diligence in interpreting Clauses
8.1 and 9.10 of the respondent’s
Business Reimbursement Travel Policy, and in properly considering the
totality of the evidence
could come to the conclusion the
commissioner reached because such conclusions cannot fall within the
purview of reasonable conclusions
a reasonable commissioner would
have reached having regard to the totality of the evidential material
before him. See
Herholdt v Nedbank Ltd
2013 (6) SA SCA at para
25.
[45] The respondent has
requested an order for costs against the appellants to mark the
court’s disapproval of, and displeasure
with, the appellants in
opposing the appeal on technical grounds by contending that the
respondent did not have
locus standi
to launch the review
application or this appeal. Although this point was dismissed in
favour of the respondent, the
locus standi
point raised by the
appellants and the commissioners interpretation of Clause 8.1 and 9.1
of the respondent’s Business Reimbursement
Travel Policy were
arguable, consequently, a costs order against the appellants would
not be just and equitable.
The Order
[46] (i)
The appeal is dismissed;
(ii)
the first appellant’s dismissal by the respondent is confirmed;
and
(iii)
there is no order as to costs.
____________________________
Mokgoatlheng
AJA
Tlaletsi
DJP and Dlodlo AJA concur in the judgment of Mokgoatlheng AJA
APPEARANCES:
FOR
THE APPELLANT:
Adv Lungile
Tyatya
Instructed
by E S Makinta Attorneys
FOR
THE RESPONDENT:
Adv L. Louw
Instructed
by Edward Nathan Sonnenbergs Attorneys