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[2014] ZALAC 60
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Absa Bank Limited v Naidu and Others (DA 14/12) [2014] ZALAC 60; [2015] 1 BLLR 1 (LAC); (2015) 36 ILJ 602 (LAC) (24 October 2014)
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REPUBLIC
OF SOUTH AFRICA
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case
no. DA 14/12
In
the matter between:
ABSA BANK
LIMITED
...........................................................................................................
Appellant
and
DEVAPRIYA
NAIDU
...................................................................................................
First
Respondent
LESTER SULLIVAN
NO
........................................................................................
Second
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION &
ARBITRATION
.............................................................................
Third
Respondent
Heard: 4 March
2014
Delivered: 24
October 2014
Summary: Parity
principle: Employee convicted of misconduct involving dishonesty and
dismissed. Both CCMA & LC held that dismissal
was substantively
unfair (and ordered reinstatement) on ground that another employee
who previously committed similar transgression
was only given final
written warning and not dismissed. Held: Parity principle to be
applied with caution. Each case to be
treated on its own facts and
circumstances. The principle not intended to profit employees who
commit serious acts of misconduct.
In the present instance, dismissal
was substantively fair. Appeal upheld.
Coram: Waglay JP,
Ndlovu JA
et
Coppin AJA
JUDGMENT
NDLOVU JA
Introduction
[1]
This appeal is against the judgment and order of the Labour Court
(Cele J) handed down on 28 June 2012, in terms of which the
Labour
Court dismissed with costs the application launched by the appellant
Bank, seeking to review and set aside the arbitration
award issued by
the second respondent (the commissioner) on 28 June 2010, acting
under the auspices of the third respondent (the
CCMA). Leave to
appeal to this Court was granted by the Supreme Court of Appeal.
[1]
[2]
In terms of the arbitration award, the commissioner found that the
dismissal, by the appellant, of the first respondent Ms Devapriya
Naidu, was procedurally fair but substantively unfair, on the ground
of lack of disciplinary consistency on the part of the appellant.
Hence, the commissioner ordered that Ms Naidu be reinstated to the
appellant’s employ “
with effect from the date of her
dismissal, the 7
th
October 2008 on the same
terms and conditions as she was employed prior to her dismissal”
and further ordered the appellant to pay Ms Naidu “
the sum
of R1 879 530 within 14 days”
from the date of
the award.
The factual
matrix
[3]
Ms Naidu was formerly employed by the appellant as an executive
investment broker at the appellant’s Chatsworth branch
in
Durban. On 22 September 2008, she was charged with two counts of
misconduct, which appeared in the disciplinary charge sheet
as
follows:
‘
1.
It is alleged that you acted irregularly in the execution of your
duties as a Broker with ABSA Brokers.
The above allegation
bears reference to the following examples/incidents:
-
Processing instructions without a valid
signature from the client by detaching the second page of an existing
instruction and sending
with a new instruction to effect switch
requests on 18 July 2008 for clients D Khan [...]; K Naidoo [...]; O
Naidoo [...] and G
Jeebodh [...].
-
Processing instructions without valid
signatures for transaction of D Pillay [...].
Concerning the
degree of seriousness associated with the charge, it bears relation
to the category “very serious offences”
as contained in
the ABSA Disciplinary Code.
2.
It is alleged that you failed to comply
with a provision of a statutory regulatory requirement which places
an obligation on the
Bank and where your position with the Bank
places a burden on you to ensure compliance.
The above allegation
bears reference to the following examples/incidents:
-
Audit of client advice records not in place
as per attachment.
Concerning the
degree of seriousness associated with the charge, it bears relation
to the category “very serious offences”
as contained in
the ABSA Disciplinary Code.”
[4]
The facts and circumstances that brought about the said misconduct
charges can be summarised as follows. In terms of her job
description, Ms Naidu, amongst other things, rendered intermediary
services to the appellant’s clients and, as such, to advise
and
recommend to a client the best investment portfolio was part of her
responsibilities. She would then assist clients in investing
their
funds in various portfolios. With the consent of a client, she could
move or “switch” funds from one investment
portfolio to
another. A “switch form” was used to implement the
transfer of funds. The particulars of the client, the
type of the
investment and an original signature of the client had to be
reflected on the switch form which was then faxed to the
central
point known as the Absa’s Investment Management Services
(AIMS), where the final transaction switch was to take place.
[5]
Ms Naidu had a team of staff who worked under her supervision. She in
turn reported to Ms Sharon Andrews, the Regional Manager
for KZN
Region1. The Provincial Support Manager was Mr Gordon Shaw-Newland
and his Assistant was Ms Sandi Wroggermann who also
served as the
appellant’s Complaints and Compliance officer. As such, Ms
Wroggermann received and handled any complaints
from clients lodged
with the appellant.
[6]
One of Ms Naidu’s clients was a 70 year-old Mr Dawood Khan who,
on Ms Naidu’s financial advice, deposited with the
appellant a
capital investment of R100 000 in a Property Market Fund.
Unfortunately, it happened that there was volatility
in the market
which went so bad that Mr Khan’s investment dropped to about
R60 000, thus causing him a loss of some
R40 000. Hence, Mr
Khan lodged a complaint with the appellant against Ms Naidu. In due
course, however, the appellant sent
him a letter, under the hand of
Mr Shawn-Newland, advising him that after its preliminary
investigation of his complaint, it found
no fault on the part of
anyone of its staff.
[7]
Mr Khan was not satisfied with the appellant’s response and
thus referred his complaint to the Ombud for Financial Service
Providers, in terms of section 27 of the Financial Advisory and
Intermediary Services Act (the FAIS Act).
[2]
Consequently, the appellant relented and agreed to refund Mr Khan of
his R40 000 loss. Thereafter, Ms Naidu advised and duly
obtained
consent from Mr Khan to move his investment from the Property Market
portfolio to the Money Market portfolio. To that
end, Mr Khan duly
signed the prescribed switch form and the switch was finalised.
[8]
During July 2008, Ms Naidu had reason to believe, which indeed turned
out to be correct, that the Property Market (which Mr
Khan had
previously switched from) was set to rise rapidly. Accordingly, Ms
Naidu advised and duly obtained consent from a number
of her clients
to move their investments from Money Market to Property Market in
anticipation of that rapid rise. She had obtained
signatures of those
consenting clients. However, when she attempted to communicate with
Mr Khan for the same purpose, she did not
succeed to get through to
him. He was reportedly out of the country. She then, without Mr
Khan’s knowledge and consent, proceeded
to process the switch
of his investment from Money Market to Property Market. As she would
obviously not have Mr Khan’s signature,
she used an old signed
switch form from a previous transaction and attached it to the new
investment transfer forms and thus effectively
transferred Mr Khan’s
funds from Money Market to Property Market without his knowledge and
consent. She did this in violation
of the appellant’s rules and
the code of conduct under the FAIS Act, to which the appellant and
herself were subject. This
was the crux of the misconduct charge
preferred against Ms Naidu, particularly in relation to count one of
the disciplinary charges.
[9]
Ms Naidu brought the fact of the switch to the attention of her
superiors, Mr Shaw-Newland and Ms Andrews. However, there was
a
dispute whether she fully disclosed to the superiors on how she went
about to secure the signatures. In the meantime, she made
two
telephone calls to Ms Wrogermann on different days. During the first
telephone discussion, she mentioned that she was contemplating
to
switch Mr Khan’s funds back to Property Market. In the second
call, she confirmed to Ms Wrogermann that she was going
to proceed
and implement the switch, using Mr Khan’s old signed switch
form, because she was not prepared to find herself
in a situation
where she was held personally liable for Mr Khan’s R40 000
loss. She further indicated during the conversation
that she was
aware that what she was about to do was wrong and that she could be
dismissed for it.
[10]
Consequent to Mr Khan’s complaint, an investigation was
conducted and it was subsequently established that there were
more
cases where the “
copy and paste”
system was used
to secure signatures of clients under similar circumstances. Hence,
Ms Naidu was charged with the misconduct aforesaid.
[11]
At the ensuing disciplinary enquiry held on 6 October 2008, Ms Naidu
was duly represented by an attorney on the instructions
of her trade
union. The appellant was also represented by an attorney. Ms Naidu
pleaded guilty to count one, as it pertained to
the transaction
involving Mr Khan. In respect of the other transactions, she sought
to explain that the clients concerned had given
their consent and
permission to their investments being moved to Property Market. In
this regard she produced proof in the form
of a letter, affidavits
and even oral evidence (from two of those clients) to support her
averment that consent and authorisation
had indeed been obtained.
[12]
In respect of count two, Ms Naidu pleaded guilty but also sought to
explain that, in any event, all the brokers in the region,
including
her, were not complying with the requirement referred to in that
charge, for the simple reason that their “
IT
system was not geared to comply with this requirement”
.
Notwithstanding, Ms Naidu was convicted on both counts and summarily
dismissed with effect from 7 October 2008. It is not clear
from the
papers as to when Ms Naidu joined the appellant, but it is stated
that she had been in the appellant’s employ for
some 20 years.
At
the time of her dismissal she was
earning R104 000 per month.
[13]
She lodged an internal appeal against the dismissal sanction, but was
unsuccessful, on the basis that both transgressions were
categorised
as “
very
serious offences”
in terms of appellant’s disciplinary code, which prescribed a
sanction of dismissal for any misconduct involving a
misrepresentation
or a false declaration of any kind. Over and above
the dismissal sanction, the appellant reported Ms Naidu to the
Financial Services
Board
[3]
which, in turn, found her misconduct to be sufficiently serious to
have her debarred from practising as a Financial Advisor,
[4]
a ban that would endure either for life or for a specific period.
The arbitration
[14]
Ms Naidu was not satisfied with her dismissal which she considered
unduly harsh, on the basis that there were other employees
who had
previously committed similar transgressions but were not dismissed.
In this regard, she particularly mentioned her colleague,
Ms Pin Lai.
Hence, she referred a dispute to the CCMA for conciliation,
complaining that her dismissal was both substantively and
procedurally unfair on the ground of inconsistency on the part of the
appellant in the treatment of its employees.
[15]
The conciliation process bore no fruit in resolving the dispute
between the parties. Consequently, a certificate of outcome
to that
effect was issued, which paved the way for Ms Naidu to refer the
dispute for arbitration before the commissioner. It was
common cause
that during the course of the arbitration hearing, the charge
referred to in count two was withdrawn by the appellant.
[16]
The evidence for the appellant was adduced from the following
witnesses, who were all employees and officials of the appellant:
Mr
Hermanus Stephanus de Wit; Ms Sharon Andrews (the Regional Manager
for KZN Region1); Mr Gordon Shaw-Newland (the Provincial
Support
Manager); Mr Kevin Michael Wasmuth and Ms Sandi Wrogermann (Assistant
Provincial Support Manager as well as Complaints
and Compliance
Officer). Ms Naidu also testified and called three witnesses, namely,
Ms Oumasantha Naidoo, Mr Kershan Naidoo and
Ms Elizabeth Fairweather
de Villiers.
[17]
Concerning the other four clients of the appellant referred to in the
misconduct charge (two of whom were the Naidoo’s
called by Ms
Naidu as her witnesses), the commissioner accepted that there was
sufficient evidence to exonerate Ms Naidu from blame
in regard
thereto. In reaching this conclusion he considered the following:
1.
That none of the four clients complained or
suggested that they had not given the required authority.
2.
That it was probable that Ms Naidu was not
personally involved in the physical handling of the transactions
involving the four clients.
3.
That the volume of work on the particular
day in respect of which the investigation was carried out was in the
region of 3000%,
which was far more than the normal day. Hence, with
such additional work load it was not surprising that Ms Naidu’s
staff
might have encountered some problems and resorted to taking
short cuts when they could not find the specific switch forms that
had been originally signed by the clients.
4.
That Ms Naidu, on her own initiative,
brought the Khan matter to the attention of her superiors; and that
if there were more than
one such matter there was every reason to
believe that she would have brought all of them to her superior’s
attention at
the same time.
[18]
On the misconduct charge and conviction involving Mr Khan, the
commissioner opined that the sanction of dismissal was “
too
harsh”
in the circumstances of the case. Summing up his
observations and findings, he stated the following:
‘
44.
There is in fact no doubt, despite the applicant’s
contradictory evidence that Mr Khan could only gain from her
unauthorized
action. The only person who was at any real risk of
losing money was the applicant [Ms Naidu] herself. Had Mr Khan’s
funds
dropped at all he would clearly have had a claim against the
applicant which I have no doubt [she] would have paid immediately as
she knew he had not authorized any fund movement. Had he instituted
the claim against the respondent [the Bank] they would obviously
have
paid and claimed the money in turn from the applicant. At the time
her monthly earnings were almost double the amount invested
for Mr
Khan so there was no genuine risk for the respondent. As there is
precedent for them claiming monies directly from brokers.
45. Taking all the
factors into account I am satisfied that dismissal was too harsh a
sanction considering the following:
·
The applicant believed what she was doing
was in the best interests of of both her client and the respondent.
·
She had 20 years of unblemished service
with the respondent.
·
She had little, if anything, to gain
personally from her actions.
·
The applicant’s degree of dishonesty
was not sufficient to warrant a dismissal.
·
The applicant’s breach of the FAIS
legislation was not sufficient to warrant a dismissal.
·
The applicant was very remorseful and the
possibility that the applicant would commit the same offence again is
virtually nil.
·
The applicant herself had raised the
potential problem with the respondent. It was not something she
concealed and was subsequently
discovered by the applicant (sic).
·
Judging from the Pin Lai matter the
respondent itself was of the opinion not every transgression in the
nature of the applicant’s
should be sanctioned by a dismissal.
·
The respondent did not sanction other
blatant dishonesty towards Mr Khan in any manner. This dishonesty was
in breach of his rights,
in breach of FAIS legislation and was
designed to prejudice him, not to act to his advantage.
·
The client in reality could not have lost
any money on the transaction and neither could the respondent.
·
To punish a person by taking their
livelihood for the rest of their lives, or even for 10 years, because
of one split second moment
of madness done in the interests of the
respondent and the client is simply not fair.’
[19]
Accordingly, the commissioner declared that the dismissal of Ms Naidu
was procedurally fair but substantively unfair; and he
ordered that
she be reinstated with effect from the date of her dismissal, namely,
7 October 2008. In this regard, the commissioner
calculated the
arrear salary due to Ms Naidu to be the sum of R1 920 933
from which the commissioner further ordered
that the sum of R41 403
(being the amount reimbursed by the appellant to Mr Khan) be
deducted. The commissioner sought to
explain this ancillary order in
the following terms:
‘
50.
While I accept that they (sic) may not have been a legal obligation
on the respondent [now the appellant] to pay the R41 403
to Mr
Khan I accept that it did so in good faith. I consider that it would
be equitable in the circumstances of this case to deduct
this amount
from the amount payable to the applicant [Ms Naidu]. R1 920 933
less R41 403 amounts to R1 879 530.’
[20]
The commissioner ordered the appellant to pay to Ms Naidu the said
amount of R1 879 530 within 14 days of the award.
Ms Naidu
was, in turn, directed to resume her duties with the appellant within
three days on her receipt of the award.
[21]
The appellant was not satisfied with the outcome of the arbitration
process and escalated the matter on review before the Court
a
quo
in terms of section 145 of the Labour Relations Act (the LRA).
[5]
The Labour Court
[22]
The grounds of review relied upon by the appellant can be summarised
as follows:
1.
It was unreasonable for the commissioner to
interfere with the sanction of dismissal, given the fact that Ms
Naidu conceded that
-
·
she acted dishonestly;
·
she misrepresented the information on the
switches; and
·
she was aware that the appropriate sanction
for dishonesty and misrepresentation was summary dismissal.
2.
The commissioner failed to take into
account that although Ms Naidu reported her indiscretion to her
superiors she did not fully
explain her participation role in the
switch transactions concerned, which role involved dishonesty and
misrepresentation on her
part.
3.
The commissioner failed to take into
account that the Bank did not act inconsistently in the treatment of
its employees, in that
the incident pertaining to Ms Pin Lai was
differentiated from Ms Naidu’s misconduct in the following
respects:
·
Ms Pin Lai was involved in only one
incident.
·
Ms Pin Lai’s matter did not involve a
financial transaction, but an insurance quote.
·
Ms Pin Lai’s client was at the time
overseas but fully aware of the steps taken by Ms Pin Lai and had
agreed thereto.
·
In any event, Sanlam was the only insurer
that required the signature of a person sought to be insured.
Otherwise, other insurance
companies did not require such signature.
4.
The commissioner committed a material
irregularity by failing to consider the fact that whilst Ms Pin Lai
received a final written
warning valid for 12 months, the
commissioner imposed no sanction whatsoever on Ms Naidu.
5.
The commissioner failed to properly
consider the evidence placed before him, hence his award constituted
a decision which a reasonable
decision-maker could not make.
[23]
Having considered the matter and submissions on review, the Court
a
quo
remarked, amongst others, as follows:
‘
[27]
Dishonesty has a corroding effect to the trust which the employer is
entitled to expect from its employees in its various operations.
However, an employer who exhibits a propensity of condoning acts of
misconduct performed under dishonest circumstances runs the
risk of
being ordered by courts to reinstate employees found guilty of acts
of misconduct in line with the parity principle. Ms
Pin Lai employed
the same cutting and pasting of a signature in the absence of the
original signature and when caught, she was
not dismissed. The
applicant did not only retain Ms Pin Lai in its employment after she
was found guilty of a similar misconduct,
she was paid a commission
for that transaction. The applicant’s attempt to differentiate
the two misconducts is tantamount
to saying a misconduct of theft is
different, depending on what is stolen. That approach would have an
adverse effect on the applicability
of the parity principle. The
applicant’s tolerant (sic) of this misconduct shows that it is
prepared to live with it.’
[24]
In its judgment, the Court
a quo
accordingly dismissed the
review application with costs. It is that judgment against which the
appellant now appeals to this Court.
The appeal
[25]
It was submitted on behalf of the appellant that the Court
a quo
erred in a number of respects, including the following:
1.
In finding that there was inconsistency on
the appellant’s part in the manner that it treated its
employees on the issue of
discipline.
2.
In holding that the misconduct incident
involving Ms Pin Lai was comparable to that of Ms Naidu. The Court
a
quo
ought to have held that the two
cases were distinguishable.
3.
In failing to consider that the appellant
was certainly not prepared “
to
live with”
the sort of misconduct
that Ms Naidu had committed. In other words, the Court erred in
failing to consider that the trust relationship
between the appellant
and Ms Naidu had irreparably broken down.
Analysis and
evaluation
[26]
It is settled law that, for an arbitration award to pass muster of
judicial review for reasonableness under section 145 of
the LRA, it
has to be one falling within the range of decisions which a
reasonable decision-maker could have made in the circumstances.
[6]
Recently, in
Herholdt
v Nedbank (Cosatu as amicus curiae),
[7]
the Supreme Court of Appeal amplified the review test as follows:
‘
While
the evidence must necessarily be scrutinized to determine whether the
outcome was reasonable, the reviewing court must always
be alert to
remind itself that it must avoid “judicial overzealousness”
in setting aside administrative decisions that
do not coincide with
the judge’s own opinions. ...A result will only be unreasonable
if it is one that a reasonable arbitrator
could not reach on all the
material that was before the arbitrator. Material errors
of fact as well as the weight and
relevance to be attached to
particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only
of any consequence if their
effect is to render the outcome unreasonable.’
[27]
I think it is apposite, at this stage, to refer to the basic
guideline on determining whether a dismissal for misconduct was
fair.
The Code of Good Practice
[8]
provides:
‘
Any
person who is determining whether a
dismissal
for misconduct is unfair should
consider -
(a)
whether or not the
employee
contravened a rule or standard regulating conduct in, or of relevance
to, the workplace; and
(b)
if a rule or standard was contravened,
whether or not –
(i)
the rule was a valid or reasonable rule or
standard;
(ii)
the
employee
was aware, or could reasonably be expected to have been aware, of the
rule or standard;
(iii)
the rule or standard has been consistently
applied by the employer; and
(iv)
dismissal
was
an appropriate sanction for the contravention of the rule or
standard.’
[28]
It was common cause that Ms Naidu pleaded guilty to the misconduct
charge involving Mr Khan. Her conviction on this charge
is,
therefore, not in dispute. It seems to me that the crisp issues here
are (1) whether the appellant, as the employer, had acted
inconsistently in the treatment of its employees in dismissing Ms
Naidu, since it had previously issued a final written warning
to
another employee (Ms Pin Lai) who had allegedly committed a similar
transgression as Ms Naidu; and (2) whether the decision
of the
commissioner (that the dismissal of Ms Naidu was substantively
unfair) was one which a reasonable decision-maker could not
have
made.
[29]
In terms of the appellant’s disciplinary code, misconduct
offences were compartmentalised into various categories depending
on
their seriousness. It is common cause that Ms Naidu’s
misconduct, in relation to Mr Khan’s matter, was categorised
under the heading “
Very serious offences”
where
reference was made to offences involving “
Misrepresentation
or false declaration of any kind”
and “
Dishonesty
of any nature”
. There was no challenge by Ms Naidu on the
validity or reasonableness of the misconduct offences in question.
[30]
In her capacity as the appellant’s representative,
[9]
Ms Naidu was, in terms of the Code of Conduct for Administrative
FSP’s, obliged to ensure that she obtained a signed mandate
from a client before rendering any intermediary service to such
client.
[10]
During her
cross-examination at the arbitration hearing, she conceded that she
was aware of this provision.
[11]
Under the ABSA Group FAIS Policy,
[12]
it was the responsibility of the appellant and its representatives,
including Ms Naidu, to “
[p]revent
legal liability or regulatory breach and protect the reputation of
the Absa Group by implementing appropriate procedures
to consider and
protect the interests of Absa and customers.”
Again,
Ms Naidu confirmed that she was aware of this provision.
[13]
[31]
To the extent relevant, the General Code for Authorized Financial
Services Providers and Representatives
[14]
provides as follows:
‘
Subject
to the provisions of this Code, a provider other than a direct
marketer, must-
(a)
provide a reasonable and appropriate
general explanation of the nature and material terms of the relevant
contract or transaction
to a client, and generally make full and
frank disclosure of any information that would reasonably be expected
to enable the client
to make an informed decision.’
[32]
It is common cause that Ms Naidu was fully aware that what she did
was wrong and constituted a misconduct for which she was,
admittedly,
prepared to take whatever consequences that could follow, including
her dismissal. This awareness on Ms Naidu’s
part is manifest in
the two telephone conversations which she had with Ms Wrogermann
prior to her switching Mr Khan’s investment
to the Property
Market Fund without his knowledge and consent. Amongst others, the
following extract is taken from their first
conversation of 18 July
2008:
[15]
‘
MS
NAIDU: Ok, you know what,
I’m just
going to send him, I’ve got an old … (inaudible) …
signed on the 25
th
of June where I switched [Mr Khan] to Market. I’m going to
switch him back on that because he’s out of the country
.
I can’t get hold of him. I’m going to just do that. I’ll
take the consequences what comes.
MS WROGEMANN: Ok.
MS NAIDU: Whatever
comes to me because I’m…’”
(Emphasized
)
There
was consensus between both counsel that, in the context of the
conversation, the word marked as “
inaudible”
,
above, was likely to be intended for the word “
form”
- meaning the switch form.
[33]
During their second telephone conversation on 28 July 2008, the
following appears:
[16]
‘
MS
NAIDU: I don’t know angel. I’m not sleeping with this
case now.
MS WROGEMANN:
Well I’m not sleeping with anything. I’ve to try and
write letters …
MS NAIDU: I don’t
know whether I must just, you know what, I think I’ll just take
them into the market today. I’ve
got a signed switch.
I’ve
got a signed switch
.
MS WROGEMANN:
So they basically signed a switch. So I mean …
MS NAIDU: I’ve
got a switch form. I switch to money market.
MS WROGEMANN:
Yes.
MS NAIDU:
I’ll
switch it back with the same form
.
MS WROGEMANN:
Oh ok.
MS NAIDU:
Sandy
will I get in trouble? I’ll get fired
.
MS WROGEMANN:
I can’t tell you that my dear. I don’t know. I really, I
don’t know. I don’t know. I
don’t even know what
the value of the investments (sic) is.
MS NAIDU: 61 now.
And if he sat he would have been 79. …
MS WROGEMANN:
What does Sharon, have you spoken to Sharon?
MS NAIDU: No.
MS WROGEMANN:
Because I’m not a hundred percent sure whether you’ll get
into trouble or not … and that
type of thing.
MS NAIDU: You know
what, I’ll take the,
if they fire me it’s one of those
things.
I’m going to,
I’m not going to pay 40 000
out of my own pocket.
By the time this case goes it will be after
the 14
th
August. When are you going to respond to him?
MS WROGEMANN:
Well I’m going to have to respond to him soon. Very soon,
because my six weeks is almost up.’
(Emphasized)
[34]
Ms Naidu complained that her dismissal was unfair because the same
sanction was not imposed on Ms Pin Lai who, according to
her, had
committed a similar misconduct as hers, yet was not dismissed but
only issued with a final written warning. Therefore,
her plea raised
the issue of alleged inconsistency on the part of the appellant in
its treatment of employees in relation to discipline.
In other words,
the appellant did not follow the parity principle.
[35]
It is trite that t
he
concept of parity, in the juristic sense, denotes a sense of fairness
and equality before the law, which are fundamental pillars
of
administration of justice. In the Australian decision in
Green
v The Queen,
[17]
it
was said that “
the
parity principle is an aspect of the systemic objectives of
consistency and equality before the law – the treatment of
like
cases alike, and different cases differently.”
Indeed,
in
Chemical
Energy Paper Printing Wood & Allied Workers Union and Others v
Metrofile (Pty) Limited,
[18]
this Court also stated:
‘
[35].
Our law requires that employees who have committed similar misconduct
should not be treated differentially.
In
National
Union Metalworkers of SA v Haggie Rand Ltd
(1991) 12 ILJ 1022 (LAC) Goldstein J had occasion to consider the
fairness of an offer of re-employment with loss of allowances
linked
to length of service. The learned judge reasoned, in that case, at
1029G-H, that the offer of re-employment was unfair because
its
acceptance would have resulted in employees losing allowances that
depended on length of service. This, the learned judge found,
would
mean that employees were being unequally punished.
[36]
This principle, also referred to as the ‘parity principle’,
was aptly enunciated
in
National Union of Metalworkers of SA and
Others v Henred Fruehauf Trailers (Pty) Ltd
(1994) 15 ILJ 1257
(A) where the court stated at 1264A-D:
‘
Equity
requires that the courts should have regard to the so-called “parity
principle”. This has been described as the
basic tenet of
fairness which requires that like cases should be treated alike (see
Brassey “The Dismissal of Strikers”
(1990) 12 ILJ 213 at
229-30). So it has been held by the English Court of Appeal that the
word “equity” as used in
the United Kingdom statute
dealing with the fairness of dismissals, “comprehends the
concept that the employees who behave
in much the same way should
have meted out to them much the same punishment”
(Post
Office v Feennell
(1981) IRLR 221
at
223). The parity principle has been applied in numerous judgments in
the Industrial Court and the LAC in which it has been held
for
example that an unjustified selective dismissal constitutes an unfair
labour practice.’
[36]
However, it ought to be realised, in my view, that the parity
principle may not just be applied
willy-nilly without any measure of
caution. In this regard, I am inclined to agree with Professor Grogan
when he remarks as follows:
[19]
‘
[T]he
parity principle should be applied with caution. It may well be that
employees who thoroughly deserved to be dismissed profit
from the
fact that other employees happened not to have been dismissed for a
similar offence in the past or because another employee
involved in
the same misconduct was not dismissed through some oversight by a
disciplinary officer, or because different disciplinary
officers had
different views on the appropriate penalty.’
[37]
In
SACCAWU
and Others v Irvin and Johnson (Pty) Ltd,
[20]
this Court (per Conradie JA) stated:
[21]
‘
In
my view too great an emphasis is quite frequently sought to be placed
on the principle of disciplinary consistency, also called
the ‘parity
principle’ … There is really no separate principle
involved. Consistency must be measured by the
same standards …
Discipline must not be capricious. It really is the perception of
bias inherent in selective discipline
that makes it unfair. Where,
however, one is faced with a large number of offending employees, the
best one can hope for is reasonable
consistency. Some inconsistency
is the price to be paid for flexibility, which requires the exercise
of a discretion in each individual
case. If a chairperson
conscientiously and honestly, but incorrectly, exercises his or her
discretion in a particular case in a
particular way, it would not
mean that there was unfairness to the other employees. It would mean
no more than his or her assessment
of the gravity of the disciplinary
offence was wrong. It cannot be fair that other employees profit from
that kind of wrong decision.
In a case of plurality of dismissals, a
wrong decision can only be unfair if it is capricious, or induced by
improper motives or,
worse, by a discriminating management policy …
Even then I dare say that it might not be so unfair as to undo the
outcome
of other disciplinary enquiries. … If, for example,
one member of a group of employees who committed a serious offence
against
the employer is, for improper motives, not dismissed, it
would not … necessarily mean that the other miscreants should
escape.
Fairness is a value judgment.’
[38]
There was unchallenged evidence from Ms Andrews to the effect that an
employee (one Mike Pillay) who committed “exactly”
the
same dishonest misconduct as Ms Naidu, was dismissed.
[22]
In my view, therefore, there seems to be no justification, on the
facts of this case, in holding that, just for the single instance
of
Ms Pin Lai, the appellant exhibited “
the
propensity of condoning acts of misconduct performed under dishonest
circumstances”
and
that the appellant’s tolerance of such acts of misconduct
showed “
that
it
is prepared to live with it”
.
[39]
I agree with counsel for the appellant that the situation in relation
to Ms Pin Lai was not comparable to that of Ms Naidu.
Ms Pin Lai was
a bond insurance advisor whereas Ms Naidu was an executive investment
broker. Unlike Ms Naidu’s, the misconduct
committed by Ms Pin
Lai - although also containing an element of dishonesty – did
not involve a financial transaction. It
only involved a bond
insurance quote from Sanlam which, Ms Pin Lai processed by using the
client’s signature from a previous
transaction. In other words,
in Ms Pin Lai’s case, no client’s monies in the
appellant’s custody were interfered
with, without the client’s
knowledge and authorisation, which was what Ms Naidu did with Mr
Khan’s investment funds.
Indeed, there was evidence that in Ms
Pin Lai’s matter, the client was aware and had given permission
that the insurance
quote be obtained from Sanlam. The signature was
not possible to get since the client was out of the country. There
was further
evidence that Ms Pin Lai had acted impulsively when she
committed the misconduct. On the other hand, the telephone
conversations
which Ms Naidu had with Ms Wrogermann, as illustrated
above, patently demonstrated that Ms Naidu had ample opportunity to
reflect
on what she was contemplating to do and to refrain from doing
it. However, she reconciled herself with her determination to proceed
and commit the dishonest misconduct.
[40]
There was argument by Ms Naidu’s counsel that Ms Naidu did not
commit the misconduct for her own personal gain, but that
she did it
in the best interests of Mr Khan and the appellant. However, it did
not seem to me that such argument was entirely supported
by facts in
this case. It appears that there was a perceived looming
scenario - which Ms Naidu seemingly dreaded - that she
could be held
by the appellant personally liable for Mr Khan’s R40 000
loss which the appellant had refunded to him,
by virtue of the
apparent ill investment advice which Ms Naidu had given to Mr Khan,
in the first place. Hence, she was heard in
her telephone
conversation with Ms Wrogermann saying, amongst other things: “
You
know what … if they fire me it’s one of those things …
I’m not going to pay 40 000 out of my
own pocket.”
[23]
In the circumstances, her conspicuous haste in ensuring that the
“switch” materialised was, in my view, only an attempt
on
her part to recoup the perceived financial loss. It had nothing to do
with any sense of altruism on her part. Her protestation
to that
effect is, therefore, utterly disingenuous. Her real motive was to
save her own skin.
[41]
Accordingly, I am not persuaded that Ms Pin Lai’s matter was so
similar to that of Ms Naidu as to have warranted that
they should
have both been treated in the same way in terms of sanction. In my
view, the facts in the two matters were sufficiently
distinguishable.
In any event, it did appear that the two misconduct enquiries were
presided over by two different chairpersons
and at different times.
According to Mr Wasmuth’s evidence, Ms Naidu appeared before Ms
Tilly Bester,
[24]
whereas in
terms of Ms Pin Lai’s disciplinary papers, she appeared before
(Mr/Ms) JW Van Zyl, reportedly the appellant’s
branch manager
at Sunnyside.
[25]
In other
words, it is clear that even if the two transgressions were
considered as similar, the two “
different
disciplinary officers had different views on the appropriate
penalty”
[26]
to be imposed. However, in the words of this Court in
SACCAWU
,
above, “
it
cannot be fair that other employees [such as Ms Naidu in this case]
profit from that kind of [discrepancy]”.
[27]
[42]
Indeed, in accordance with the parity principle, the element of
consistency on the part of an employer in its treatment of
employees
is an important factor to take into account in the determination
process of the fairness of a dismissal. However, as
I say, it is only
a factor to take into account in that process. It is by no means
decisive of the outcome on the determination
of reasonableness and
fairness of the decision to dismiss. In my view, the fact that
another employee committed a similar transgression
in the past and
was not dismissed cannot, and should not, be taken to grant a licence
to every other employee, willy-nilly, to
commit serious
misdemeanours, especially of a dishonest nature, towards their
employer on the belief that they would not be dismissed.
It is well
accepted in civilised society that two wrongs can never make a right.
The parity principle was never intended to promote
or encourage
anarchy in the workplace. As stated earlier, I reiterate, there are
varying degrees of dishonesty and, therefore,
each case will be
treated on the basis of its own facts and circumstances.
[43]
Incidentally, counsel for Ms Naidu referred to the letter dated 29
July 2008 addressed by Mr Shawn-Newland to Mr Khan
[28]
whereby he (Mr Khan) was advised that the appellant had not
identified any negligence on the part of its brokers in relation to
his complaint. In this regard, counsel submitted that at the time
when Mr Shawn-Newland forwarded this letter, he was already aware
that Ms Naidu had been negligent in handling Mr Khan’s
investment transfer transaction. On this basis, it was submitted,
Mr
Shawn-Newland had also been dishonest towards Mr Khan, yet he was not
charged with any misconduct. It was argued that this was
a further
display of inconsistency on the part of the appellant. In my view,
with respect to counsel, this was nothing more than
a desperate
effort to distract attention from the serious dishonest misbehaviour
of Ms Naidu. In the first place, there is nothing
to suggest that Mr
Shawn-Newland, on the basis of anything that he did in relation to
this matter, committed any misconduct, dishonest
or otherwise,
against the appellant. Instead, it seems to me that he only sought to
act in the best interests of the appellant
in the circumstances at
the time.
[44]
Counsel also argued that Ms Naidu was remorseful of her actions and
that this was confirmed by the appellant’s witness,
Ms Andrews,
under cross-examination.
[29]
However, the fact that Ms Naidu verbalised remorse was, in the first
place, no cogent proof that she was genuinely remorseful.
Alternatively, even if she was genuinely remorseful, that would only
be a factor in her favour in determining the appropriate sanction.
In
other words, it would not have placed an absolute bar against her
dismissal, remorseful or not, taking into account the seriousness
of
the misconduct she committed.
[45]
It is clear from the manner of questions which counsel put to Ms
Andrews (under cross-examination during the arbitration hearing)
that
the purported remorse was premised on the utterances made by Ms Naidu
to certain people, including Mr Shawn-Newland, such
as saying
something to this effect (in the words of counsel), “
Listen,
I’ve committed this error … I know what I did was wrong,
I should not have done it”
[30]
,
and so on. It seems to me this was all that Ms Andrews confirmed to
have been done by Ms Naidu, which counsel contended was a
show of
remorse on her part.
[46]
Obviously, the fact of a guilty plea
per
se
or mere verbal expression of remorse is not necessarily a
demonstration of genuine contrition. It could be nothing more than
shedding
crocodile tears. Therefore, the crucial question is whether
it could be said that Ms Naidu’s utterances empirically and
objectively
translated into real and genuine remorse. In
S
v Matyityi,
[31]
the Supreme Court of Appeal remarked as follows on this issue:
‘
There
is, moreover, a chasm between regret and remorse. Many
accused persons might well regret their conduct, but that
does not
without more translate to genuine remorse. Remorse is a gnawing pain
of conscience for the plight of another. Thus genuine
contrition can
only come from an appreciation and acknowledgement of the extent of
one's error. Whether the offender is sincerely
remorseful, and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the
surrounding actions of
the accused, rather than what he says in court, that one should
rather look. In order for the remorse to
be a valid consideration,
the penitence must be sincere and the accused must take the court
fully into his or her confidence. Until
and unless that happens, the
genuineness of the contrition alleged to exist cannot be determined.
After all, before a court can
find that an accused person is
genuinely remorseful, it needs to have a proper appreciation of,
inter alia: what motivated the
accused to commit the deed; what has
since provoked his or her change of heart; and whether he or she
does indeed have a true
appreciation of the consequences of those
actions.’ [footnote omitted]
[47]
It is significant to note that in her notice of internal
appeal, Ms Naidu exhibited no sign of remorse whatsoever. She sought
to
shift the blame to the attorney who represented her at the
disciplinary hearing. In her grounds of appeal, she averred, amongst
other things, the following:
‘
3.
The ALBA attorney – Mr Johan Benade misled me into pleading
guilty.
5. We are seeking a
rehearing as my ALBA attorney – Mr Johan Benade advised (me) to
plead guilty to all the charges.
7. New or further
evidence are (sic) available which will bring new facts to bear and
which could affect the result of the previous
hearing.’
According
to Mr Wasmuth, the acronym ALBA refers to ABSA Life Brokers
Association.
[32]
[48]
There was further submission that the fact that Ms Naidu reported the
matter to Mr Shawn-Newland was another demonstration
that she was
remorseful. In my view, it was not necessarily so. An investigation
was already underway, consequent to Mr Khan’s
complaint.
Therefore, if her impropriety had not yet surfaced, that was imminent
to happen. That situation, she apparently realised.
Clearly, it did
not mean that if she did not make the report to Mr Shawn-Newland her
fraudulent misbehaviour would have been suppressed
ad infinitum
.
In any event, it was submitted in evidence for the appellant that
when she made the report to Mr Shawn-Newland she did not disclose
the
full extent of her dishonesty in relation to Mr Khan’s matter.
[49]
In terms of the FAIS regulatory code of conduct the appellant and its
representatives, including Ms Naidu, were required
[33]
–
‘
[T]o
ensure that the clients being rendered financial services will be
able to make informed decisions, that their reasonable financial
needs regarding financial products will be appropriately and suitably
satisfied and that for those purposes authorised financial
services
providers, and their representatives, are obliged by the provisions
of [the] code to –
(a)
act honestly and fairly, and with due
skill, care and diligence, in the interests of clients and the
integrity of the financial
service industry;
(b)
…
(c)
…
(d)
act with circumspection and treat clients
fairly in a situation of conflicting interests, and
(e)
comply with all applicable statutory or
common law requirements applicable to the conduct of business.’
[50]
Indeed, some of the remarks which Ms Naidu made during the
arbitration hearing did not seem, in my view, to suggest that she
was
conceding her dishonesty in this affair and, therefore, remorseful.
The following is an extract from the arbitration record,
during her
cross-examination:
[34]
‘
MR
MAESO: And you’ll accept then that in the Khan scenario you
cannot say that you acted professionally and with due care.
MS
NAIDU: I didn’t, I may not have acted professional(ly) but I’ve
acted with skill and care for the client, and that
is what I feel.
For Khan I’ve acted with my skills and care.’
[51]
This Court, in
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others,
[35]
,
stated the following:
[36]
‘
Dismissal
is not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational
response to
risk management in the particular enterprise. That is why supermarket
shelf packers who steal small items are routinely
dismissed. Their
dismissal has little to do with society’s moral opprobrium of a
minor theft; it has everything to do with
the operational
requirements of the employer’s enterprise.’
[52]
In the present instance, one needs carefully to look at the context
of what Ms Naidu actually did and consider whether the
commissioner’s
award which held that her dismissal was substantively unfair and
ordered her reinstatement, was a reasonable
decision, under the
review test referred to above. It is significant to note that the
kind of misconduct she committed did not
only harm the appellant, as
the employer, but it went further and harmed Mr Khan, the appellant’s
client, who was essentially
an innocent outsider. She was clearly
aware that her misconduct involved dishonesty and that, in terms of
the appellant’s
disciplinary code, summary dismissal was the
appropriate sanction prescribed for such type of misconduct. Of
course, it is accepted
that not every misconduct offence involving
dishonesty warrants a sanction of dismissal.
[37]
There are varying degrees of dishonesty and, therefore, each case is
to be determined on the basis of its own facts on whether
a decision
to dismiss an offending employee is a reasonable one. Generally,
however, a sanction of dismissal is justifiable and,
indeed,
warranted where dishonesty involved is of a gross nature. In
Toyota
SA Motors (Pty) Ltd v Radebe and Others,
[38]
this Court held as follows:
[39]
‘
Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty. It appears
to me that the
commissioner did not appreciate this fundamental point. I hold that
the first respondent’s length of service
in the circumstances
of this case was of no relevance and could not provide, and should
not have provided, any mitigation for
misconduct of such a serious
nature as gross dishonesty. I am not saying that there can be no
sufficient mitigating factors in
cases of dishonesty nor am I saying
dismissal is always an appropriate sanction for misconduct involving
dishonesty. In my judgment
the moment dishonesty is accepted in a
particular case as being of such a serious degree as to be described
as gross, then dismissal
is an appropriate and fair sanction.’
[53]
In
De
Beers Consolidated Mines Ltd
[40]
,
above, the Court further pointed out that “
[t]he
seriousness of dishonesty – ie whether it can be stigmatised as
gross or not – depends not only, or even mainly,
on the act of
dishonesty itself but on the way in which it impacts on the
employer’s business.”
In the present instance, considering the nature of the appellant’s
business, there can be no doubt, in my view, that
Ms Naidu’s
dishonesty severely adversely impacted on the business.
[54]
It is common cause that Ms Naidu occupied the position of executive
investment broker, which was a senior position within the
appellant’s
establishment. This fact is confirmed by the fairly high salary that
she earned at the time of her dismissal.
In the performance of her
duties, she interacted with various investment clients - both current
and prospective - and she did so
in her representative capacity of
the appellant. Resulting from such interactions, some serious
financial transactions involving
large sums of money were concluded
by her (on behalf of the appellant) with the clients concerned. As
such, it was obvious that
the appellant would have placed a high
level of trust and confidence in her. Indeed, it is a requirement, in
terms of the FAIS
Act, that a person must have “
personal
character qualities of honesty and integrity”
[41]
in order to qualify for
the kind of position which Ms Naidu held. In these circumstances, it
followed that she owed a fiduciary
responsibility
vis-à-vis
the appellant towards ensuring that, at all times, she acted and
performed her duties in a manner that was in the best interests
of
both the appellant and its clients. It seems to me, accordingly, that
any false declaration or fraudulent misrepresentation
that she made
to any client – as she did in relation to Mr Khan –
constituted a breach of her fiduciary duty and a
breakdown in her
trust relationship with the appellant.
[55]
On the issue of breakdown in trust relationship, occasioned by an
employee’s dishonest misconduct, this Court (per Davis
JA) in
Shoprite
Checkers (Pty) Ltd v CCMA and Others,
[42]
stated the following
:
[43]
‘
[T]his
Court has consistently followed an approach, laid out early in the
jurisprudence of the Labour Court in
Standard
Bank SA Limited v CCMA and
Others
[1998]
6 BLLR 622
(LC)
at paragraphs 38-41 where Tip AJ said:
“
It
was one of the fundamentals of the employment relationship that the
employer should be able to place trust in the employee…
A
breach of this trust in the form of conduct involving dishonesty is
one that goes to the heart of the employment relationship
and is
destructive of it.”’
[56]
I am satisfied that, on the basis of her dishonest and fraudulent
misbehaviour in relation to Mr Khan’s matter, Ms Naidu’s
trust relationship with the appellant was, indeed, irreparably broken
down. In my view, any plea of remorse, genuine or otherwise,
was, in
the circumstances of this case, most unlikely to bring back that
trust, which was the cornerstone of her employment relationship
with
the appellant.
[57]
Accordingly, the commissioner’s award did not, in my view,
constitute a decision which fell within the range of decisions
which
a reasonable decision-maker could have made, given the material
presented to the commissioner. Hence, the award falls to
be set aside
and replaced with the order that the dismissal of Ms Naidu was both
substantively and procedurally fair. In the circumstances,
it is not
necessary to deal with the misconduct charges involving the other
four clients in respect of which Ms Naidu pleaded not
guilty.
The
order
[58]
In the result, the following order is made:
1.
The
appeal is upheld.
2.
The
order of the Court
a
quo
is set aside and replaced with the following order:
‘
(1)
The arbitration award reference number KNDB13424-08 issued by the
second respondent is reviewed
and set aside; and replaced with the
order that the dismissal of the applicant was both substantively and
procedurally fair.
(2)
There is no order as to costs.’
3.
No costs order is made for prosecuting the appeal.
__________________
Ndlovu JA
Waglay
JP and Coppin AJA concur in the Judgment of Ndlovu JA.
APPEARANCES:
FOR
THE APPELLANT: Adv P Kennedy SC
Instructed by
Shepstone & Wylie Umhlanga, Durban.
FOR
THE FIRST RESPONDENT: Adv F Boda
Instructed
by SS Jugwanth Attorneys
Rosettenvile,
Johannesburg
[1]
SCA
Order, per Case No. 013/13 dated 13 March 2013.
[2]
Act
37 of 2002.
[3]
Established
in terms of section 2 of the Financial Services Board Act 97 of
1990.
[4]
Section
14 of the FAIS Act.
[5]
Act
66 of 1995.
[6]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (LAC) at para 110.
[7]
2013
(6) SA 224
(SCA) at para 13.
[8]
The
Code of Good Practice: Dismissals, section 7, schedule 8.
[9]
In
terms of section 13(1) of the FAIS Act.
[10]
Code of Conduct for Administrative Authorized Financial Services
Providers (FSP’s) Part II, at para 5.1 - published in
terms of
section 15 of the FAIS Act.
[11]
Record Vol 12, at 965
lines
20-25.
[12]
ABSA
Group FAIS Policy, para 2.3. See Record Vol 2, at 143.
[13]
Record,
Vol 12 at 967.
[14]
General
Code of Conduct for Authorised Financial Services Providers, 2003,
Part VI at para 7(1) - published in terms of section
15 of the FAIS
Act.
[15]
Transcript of telephone conversation. See Record, Vol 4, at 262
lines 10-19.
[16]
Transcript of telephone conversation:
Record,
Vol 4, at 274 lines 15-24; 275 lines1-23; 276 lines 1-4. See also
Vol 12 at 962 lines 14-18.
[17]
Green
v The Queen
(2011)
86 ALJR 36
at [28].
[18]
(2004)
25 ILJ 231 (LAC) at paras 36-37.
[19]
Grogan,
Dismissal,
Discrimination and Unfair Labour Practices
2
nd
ed, (Juta 2007) at 273-274.
[20]
(1999)
20 ILJ 2302 (LAC).
[21]
SACCAWU
v Irvin & Johnson
,
above,
at
para 29
.
See
also
Cape
Town Council v Masitho and Others
(2000) 21 ILJ 1957 (LAC) at para 14.
[22]
Record,
Vol 8 at 603 lines 14-23.
[23]
Record,
Vol 4, at 276 lines 1-4.
[24]
Record,
Vol 10, at 806 lines 2-4.
[25]
Record,
Vol 1, at 66 and 66a.
[26]
Grogan,
above.
[27]
SACCAWU
v Irvin & Johnson
,
above, at para 29. See also Grogan, above.
[28]
Record,
Vol 3, at 221-222.
[29]
Record,
Vol 8 at 640 lines 1-12.
[30]
Record,
Vol 8 at 640 lines 9-10.
[31]
2011 (1) SACR 40
(SCA) at 47; para 13.
[32]
Record, Vol 10 at 808 line 7.
[33]
Section
16 of the FAIS Act.
[34]
Record,
Vol 12 at 970 lines 20-25.
[35]
De
Beers Consolidated Mines Ltd v CCMA and Others
(2000) ILJ 1051 (LAC).
[36]
De
Beers Consolidated Mines Ltd v CCMA and Others
,
above, at 1058E-G; para 22. See also
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
(2010)
31 ILJ 901 (LAC);
[2010] 5 BLLR 513
(LAC) at para 25.
[37]
Shoprite
Checkers (Pty) Ltd v CCMA and Others
[2009]
7 BLLR 619
(SCA) at para 20;
Edcon
Ltd
v
Pillemer
NO
[2010]
1 BLLR 1
(SCA) para 4 and 9.
[38]
Toyota
SA Motors (Pty) Ltd v Radebe and Others
(2000)
21 ILJ 340 (LAC);
[2000] 3 BLLR 243
(LAC) at para 15. See also
Mutual
Construction,
above, at para 37;
Anglo
American Farms t/a Boschendal Restaurant v Komjwayo
(1992) 13 ILJ 573 (LAC) at 592I-593A
;
Mayimbo
v CCMA and Others
[2010] 10 BLLR 1017
(LAC) at paras 15-18;
Woolworths
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
(2011) 32 ILJ 2455 (LAC) at para 48.
[39]
Toyota
SA Motors (Pty) Ltd v Radebe & Others
,
above, at 344C-F.
[40]
At1058I-J.
[41]
Section
8 of the FAIS Act.
[42]
[2008]
9 BLLR 838 (LAC).
[43]
Shoprite
Checkers
(Pty),
above, at para 16. See also
Park
Club v Garratt
[1997]
9 BLLR 1137
(LAC) at 1139;
Leonard
Dingler (Pty) Ltd v Ngwenya
(1999) 20 ILJ 1171 (LAC) at para 78;
De
Beers Consolidated Mines, above,
at
para 22;
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v NUM and Others
(2001) 22 ILJ 658 (LAC) at para 22;
De
Beers Consolidated Mines
,
above, at 1057C-D;
Matsekoleng
v Shoprite Checkers (Pty) Ltd
[2013] 2 BLLR 130
(LAC) at para 48.