About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2015
>>
[2015] ZALAC 47
|
|
Monare v South African Tourism and Others (JA45/14) [2015] ZALAC 47; [2016] 2 BLLR 115 (LAC); (2016) 37 ILJ 394 (LAC) (11 November 2015)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA45/14
In the matter between:
TEBOGO
BRIAN MONARE
Appellant
and
SOUTH
AFRICAN TOURISM
First
Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
FAIZEL
MOOI
N.O.
Third
Respondent
Heard:
25 August 2015
Delivered: 11
November 2015
Summary:
Territorial
jurisdiction of the CCMA – employee employed overseas dismissed
for misconduct – employee referring unfair
dismissal to CCMA –
commissioner finding employee dismissal substantively unfair –
Labour Court
mero
motu
raising
lack of jurisdiction of the CCMA and reviewing and setting aside
award on that ground. Appeal – principle enunciated
in
Astral
and
Genrec
Mei
to the effect that the undertaking where employee employed
extraterritorially has to be separated and divorced from the other
company in the Republic restated. – Employer a creature of
statute mandated to perform functions within or outside the
boundaries
of the Republic – Overseas office not separated and
divorced from South African operation. LRA applicable – CCMA
having
jurisdiction – Labour Court judgment set aside.
Review of arbitration award –
Employee charged with misconduct relating to dishonesty and fraud in
respect of subsistence
and travel claims and the use of an access
code without permission. Commissioner finding that fraud and
dishonesty not supported
by the evidential material and that employee
not benefiting from his conduct – evidence showing that
employee failing to
follow company procedures – decision
failing within the band of reasonableness – Labour Court’s
judgment set
aside – Appeal upheld with costs.
Coram: Musi JA, Coppin JA
et
Makgoka AJA
JUDGMENT
COPPIN JA
[1] The Labour Court (Van Niekerk J)
reviewed and set aside an award made by the third respondent, a
commissioner, acting under
the auspices of the Commission for
Conciliation, Mediation and Arbitration (“
CCMA
”),
in favour of the appellant and against the first respondent,
reinstating the appellant in his employment with the first
respondent, on the ground that the CCMA did not have jurisdiction in
the matter. This is an appeal against the Labour Court’s
order
with the necessary leave.
[2]
In brief, the appellant was employed as Finance and Administration
Manager in the London office of the first respondent in terms
of a
fixed term contract for three years, with effect from 1 February 2010
to 31 January 2013. He was charged with misconduct,
details of which
I will relate later in this judgment and he was dismissed. The
appellant then referred the dispute about his dismissal
to the CCMA,
which in terms of the Labour Relations Act (“
LRA
”),
[1]
has no extraterritorial jurisdiction. The parties did not raise an
issue concerning the jurisdiction of the CCMA and it only became
an
issue after argument in the Labour Court in respect of the review of
the CCMA award, when the court
a
quo
raised it
mero
motu
.
[3]
Having raised the issue, the court
a
quo
requested the parties to file supplementary heads of argument dealing
with it. The court a quo applied to the facts on record the
test for
jurisdiction assumed by this Court in
Astral
Operations Ltd v Parry
(
Astral
),
[2]
which
this Court largely derived from the test in
Genrec
Mei (Pty) Ltd v Industrial Council for the Iron, Steel, Engineering
and Metallurgical Industry and Others
(
Genrec
Mei),
[3]
and
which was also applied,
inter
alia
,
in the unreported Labour Court decision of
MECS
Africa (Pty) Ltd v CCMA,
[4]
and
held, in effect, that the London office was an independent
undertaking of the first respondent; that the appellant was employed
by the undertaking in London; that he performed his duties only in
the United Kingdom; that his disciplinary hearing was held there
and
he was given notice of dismissal there. In view of all the
circumstances (including the factual findings which it made), the
court
a
quo
concluded that the LRA did not apply; that the appellant had no right
to refer the dispute to the CCMA, because that body had no
“
right
”
to entertain it. The court
a
quo
on that basis reviewed the CCMA award and set it aside. No costs
order was made. Since the jurisdictional issue was decisive, the
court
a
quo
did not go on to consider the other grounds of review relied on by
the first respondent in its application to that court.
[4]
Accordingly, the main issue on appeal is the issue of jurisdiction of
the CCMA and the applicability of the LRA to the dispute
arising from
the appellant’s dismissal by the first respondent. The parties
were in agreement that should that issue be decided
in favour of the
appellant, this Court should deal with and decide the other grounds
of review, even though they were not considered
by the court
a
quo
.
This Court has the power to do so.
[5]
[5] Before dealing with the issues, it
is necessary to deal briefly with an application brought by the
applicant to lead further
evidence in this Court. The further
evidence relates to the jurisdiction point. The application was
opposed by the first respondent
,
disputing the veracity of aspects of that evidence. In light of the
view I take in respect of the jurisdiction issue, it is not
necessary
for that application to be decided.
[6] I shall now first sketch a more
detailed background using the common cause facts and then proceed to
deal with the issue of
jurisdiction and in light of the conclusion on
that point, I will proceed to deal with the other grounds of review
raised by the
first respondent.
Background
[7] On 10 November 2009, the appellant
was appointed as Finance and Administration Manager – UK for a
period of three years
with effect from 1 February 2010. He was
previously employed in the first respondent’s Amsterdam office.
He commenced work
in his office in Wimbledon London. The first
respondent charged him with misconduct relating to dishonesty and
fraud pertaining
to subsistence and travel claims which he made in
2010 and the use of an access code to the first respondent’s
computer system.
A disciplinary hearing was held in London during
September 2010.
[8] Following the disciplinary
hearing, the appellant was dismissed from the first respondent’s
employment on 30 September
2010. He lodged an internal appeal which
was unsuccessful. On 17 November 2010, he referred an unfair
dismissal dispute to the
CCMA. Conciliation was unsuccessful and the
matter proceeded to arbitration in Johannesburg before the third
respondent (“
the Commissioner
”). The appellant
contended, at the arbitration, that his dismissal was both
procedurally and substantively unfair and he
claimed reinstatement.
[9] The Commissioner found that the
appellant’s dismissal by the first respondent was procedurally
fair, but substantively
unfair and ordered the appellant’s
reinstatement “
with no loss of salary in the sum of £37
509,50 from 23 February 2011
”. The Commissioner directed
that the amount be paid to the appellant within 30 days from the date
of the award, but no later
than 23 September 2011 and that his
reinstatement be effected by the first respondent by no later than 13
September 2011.
[10] The first respondent brought an
application in the Labour Court to review and set aside the award of
the Commissioner, largely
on the basis that no reasonable
decision-maker could have come to the same conclusion as the
Commissioner on the available evidential
material.
[11] When the matter came before the
court
a quo,
it directed the parties to file supplementary
heads of argument dealing the issue of jurisdiction which, as I have
stated, was
raised
mero motu
.
[12]
The court
a
quo
in its judgment had regard,
inter
alia,
to the CCMA award in
Serfontein
v Balmoral Central Contracts SA (Pty) Ltd;
[6]
the
judgment of the Labour Court in
Kleinhans
v Parmalat SA (Pty) Ltd
[7]
and the judgment of this Court in
Astral
where reference was made in particular to the judgment in
CWIU
v Sopelog CC
[8]
and
Genrec
Mei
.
[13] In
Astral
, this Court had
come to the conclusion that the territorial application of the LRA,
to the dispute in question there, had to be
determined according to
the locality of the undertaking carried out by the company in which
the employee was employed.
[14] In that case, the employee had
been employed by the company until he was retrenched. He then agreed
to be employed by a subsidiary
of the company and relocated to
Malawi. The subsidiary was also a company incorporated there. After a
period, the company decided
to end its operation in Malawi and the
employee returned to South Africa where he continued to wind up the
Malawi operation. His
employment was terminated. A dispute was
declared. When the matter reached the Labour Court, the company
raised a point that
the Labour Court lacked jurisdiction to entertain
the employee’s claims for contractual damages, unfair
retrenchment and
the non- or underpayment of various statutory
amounts.
[15] On appeal, this Court applying
the
Genrec Mei
criterion held:
‘
When
all the facts of this matter are considered and the question is asked
as to where the undertaking was carried on in which the
respondent
worked, the answer would be an easy one, namely Malawi!
’
[9]
Accordingly,
this Court concluded that the LRA did not apply to the company’s
operation in Malawi and the Labour Court had
no jurisdiction to
entertain the employee’s claim. It also held that the Basic
Conditions of Employment Act (“
BCEA
”)
[10]
did not apply.
[16] Applying the same criterion as
this Court applied in
Astral
, the court
a quo
in the
present case reasoned and concluded as follows:
‘…
In
the present instance, there is no such residual nexus with the South
African office. The first respondent may be South African
and they
may have worked for an entity whose head office is located in South
Africa but he was recruited overseas, his employment
contract was
concluded overseas, he was obliged to work overseas for an agreed
fixed term with no right to return to South Africa
and continue
employment there on conclusion of that fixed term and he performed
services only in the United Kingdom. He committed
the acts of
misconduct that resulted in his dismissal in the United Kingdom, his
disciplinary hearing was held there, and he was
given notice of
dismissal there. In my view, in these circumstances the LRA has
no territorial application. It follows that
the first respondent had
no right to refer his dispute to the CCMA and the CCMA had no right
to entertain it.’
[17] The court
a quo
accordingly reviewed and set aside the arbitration award of the third
respondent.
[18] In the appeal before us, it was
submitted for the appellant that the court
a quo
had erred in
a number of respects. Firstly, in finding that certain facts
pertaining to the appellant’s employment and the
London office
of the first respondent were common cause, whereas they were not.
These findings were,
inter alia,
that the appellant’s
contract of employment was concluded outside the Republic of South
Africa; that Ms Mokhesi, the Country
Manager in the first
respondent’s London office, had overall managerial control of
the first respondent’s London office;
that the London office
had its own information technology system and its own controls; that
the London office had its own established
operational site in London;
that that office was subject to a separate audit; that the appellant
was recruited overseas and only
performed services in the United
Kingdom and was paid in pounds sterling in the United Kingdom.
[19] The appellant as a result brought
an application to produce further evidence before this Court, to
rebut some of the above
findings, as I mentioned earlier.
[20]
The appellant submitted further that the court
a
quo
also
erred by “
not
taking into account
”
the fact that the first respondent was a statutory body established
in terms of the Tourism Act;
[11]
by “
over-emphasising
the fact that the appellant rendered his service outside the RSA
”;
by failing to find that the first respondent’s undertaking was
based in South Africa and that the London office was
not a separate
undertaking, but merely an extension of the South African
undertaking. Further, that the court
a
quo
erred in finding that the appellant had no right to refer the matter
to the CCMA and that the CCMA had no power to entertain the
dispute;
by failing to properly take into account that the appellant, as a
South African citizen, was entitled to protection against
unfair
dismissal by his employer, the first respondent (a South African
undertaking financed by the South African taxpayers’
funds); by
not developing the test in
Astral
to accommodate the appellant’s constitutional right to fair
labour practices, including the right to have his dispute resolved
by
the application of law at a public hearing before an independent and
impartial forum; alternatively, by failing to sufficiently
take into
account the appellant’s constitutional rights to that effect.
[21] On behalf of the first
respondent, it was submitted that the court
a quo
had not
erred in its finding on jurisdiction. The first respondent also
opposed the application to lead further evidence and submitted
that
the issue of jurisdiction could be determined on the common cause
facts that were already on record.
[22] I shall now consider the
arguments.
[23] In my view, two aspects in
relation to the issue of jurisdiction need to be discussed. Firstly,
the jurisdiction of the CCMA
was not an issue on the “pleadings”.
The appellant had alleged that the first respondent was his employer
and, in effect,
that the locality of its undertaking (in which he was
employed) was within the jurisdiction or territory of the CCMA.
Arguably
that was sufficient to clothe the CCMA with jurisdiction as
I will explain below. Secondly, even if it were to be found that the
court
a quo
had properly raised the issue of jurisdiction, it
erred in its conclusion that the UK office of the first respondent,
where the
appellant was employed, was a separate and independent
undertaking from its South African undertaking and, accordingly, that
the
locality of the undertaking of the employer (i.e. the first
respondent) in which the appellant was employed was in London and
therefore
outside the territorial jurisdiction of the CCMA and the
Labour Court.
[24]
The court
a
quo
seemingly did not in the context of the facts before it consider the
principle that a claimant may formulate his or her claim in
a way
that enables him or her to bring it before a forum of his or her
choice. If a claim as formulated is enforceable in that
forum then
the claimant is entitled to bring it in that forum. The fact that the
claim is bad is another matter
[12]
and that jurisdiction is to be assessed on the pleadings properly
construed and not on the substantive merits of the case.
[13]
[25] While the principle has been
articulated principally in relation to court pleadings there is in my
view no reason why it should
not be applicable to the CCMA and the
documents in that forum that served to introduce the claim and define
the issues between
the parties, but I will revert on this aspect.
[26]
While the CCMA has many functions, its main function is the
resolution of disputes. Although it is not a court of law, the
CCMA
does perform functions of a judicial nature.
[14]
[27]
In
Graaff-Reinet
Municipality v Van Ryneveld’s Pass Irrigation Board,
[15]
the Appellate Division defined the term “
jurisdiction
”
in relation to courts as “
the
power or competence of a court to hear and determine an issue between
the parties
”.
[16]
The definition was accepted and applied by the Constitutional Court
in
Gcaba
v Minister of Safety and Security
.
[17]
[28] There is no reason why that term
in relation to the CCMA should not have a similar meaning. Section
114 of the LRA provides
that the CCMA has jurisdiction in all the
provinces of the Republic. The term “
jurisdiction
”
in that context, in my view, includes “
the power of the CCMA
to hear and determine an issue between the parties
”.
[29] Applying the
Astral
criterion (or test), it is appropriate to state that in terms of our
law, the CCMA,
inter alia
, has the power to hear and determine
a dispute (of the kind the LRA permits it to deal with) between an
employer and an employee
where the undertaking of the employer, in
which the employee is employed, is located within any of the
provinces of the Republic.
Now applying the principle that
jurisdiction is determined by the “
pleadings
”, it
would be appropriate to say that if the claimant has alleged
facts that satisfy the jurisdictional test and the
other party has
not taken issue with those facts, the CCMA, may, arguably, have
jurisdiction in the matter.
[30] As for the “
pleadings
”
in the CCMA, that forum has elaborate rules which
inter alia
state how a dispute is to be referred to it and what notices ought to
be given. It has also elaborate rules (CCMA Rules) on how
to request
an arbitration (after conciliation has failed) (Rule 18); for the
nature and times for the filing of statements (Rule
19); for when
parties must hold a pre-arbitration conference (Rule 20) and other
procedures to facilitate the arbitration.
[31] What is apparent from the facts
of this case is that there was no jurisdictional dispute before the
CCMA at any stage, or in
any form. A perusal of the record of the
proceedings in the CCMA shows,
inter alia,
the following: that
in his referral to the CCMA for conciliation, the appellant
inter
alia
stated that the other party to the dispute was the first
respondent, which was located in Johannesburg; that the dispute
related
to an unfair dismissal and that the dispute arose on 18
October 2010 in Pretoria; that he sought compensation and that there
was
an objection to a con-arbitration process. It was certified that
conciliation was unsuccessful and that the dispute remained
unresolved.
Furthermore, it appears from the record that the
appellant had requested arbitration. In the relevant form he
specifically confirms
his details as an employee and that of the
first respondent as an employer. Several documents were filed.
[32] Although, it does not appear as
if formal “
pleadings
”, namely, a statement of
claim and response, were required to be filed and were filed, the
parties made elaborate opening
statements defining the issues and
seemed to have held a pre-arbitration conference. It also appears
from the common cause facts
on record that there was nothing to
suggest that the London office of the first respondent was an
independent undertaking
of the first respondent and therefore that
the CCMA did not have jurisdiction. In terms of the case as defined
before the CCMA,
prima facie
, it had jurisdiction.
[33]
On assumption that the issue of jurisdiction should have been raised
and dealt with by the CCMA specifically (because of the
facts before
it, which is clearly the more advisable approach and is also
consistent with CCMA Rule 22
[18]
),
I am of the view that it was not established on the facts that the
London office was an independent undertaking of the respondent.
[34] What is clear from both
Astral
and
Genrec Mei
is that the undertaking where the employee was
employed (i.e. and which was situated beyond the territorial
jurisdiction of the
respective
fora
in each of those cases),
has to be separate and divorced from the employer’s undertaking
which is located within the jurisdictional
territory of the relevant
forum.
[35] In
Astral
, the employer’s
Malawian subsidiary, where the employee worked, was separate and
divorced from the employer’s South
African undertaking. The
Malawian undertaking was an incorporated concern with a separate
personality. It was an independent company.
In
Genrec Mei
, the
court also emphasised the separateness and independence of the
employer’s undertaking in Durban, from its undertaking
on the
oil rig, where the employee was employed.
[36] The nub of the issue in this
case, is not about where appellant was employed, because it is common
cause that he was employed
in the first respondent’s London
office, but whether the London office was an undertaking of the first
respondent, which
was separate and divorced from its undertaking in
the Republic of South Africa. In my view it certainly was not.
[37]
The first respondent, the South African Tourism Board, is the
employer. It is a creature of statute, established as a juristic
person in terms of the Tourism Act.
[19]
[38] In terms of section 3 of the
Tourism Act, the first respondent’s objectives are,
inter
alia,
to promote tourism by encouraging persons to undertake
travels to and in the Republic and to that end, it is empowered to
take
measures to ensure that services and facilities provided to
tourists comply with the highest attainable standards; to manage and
conduct research relating to tourism and to advise the Minister on
tourism policy, either of its own volition, or when requested
to do
so by the Minister.
[39] The other powers of the first
respondent are provided for in section 13 of the Tourism Act. It may
open and conduct offices
in the Republic, or elsewhere, which may be
necessary or advisable for the effective and proper exercise of its
powers, the performance
of its functions and the carrying out of its
duties.
[40] In section 13(m), the first
respondent is empowered to employ persons who are necessary for the
exercise by the first respondent
of its powers, the performance of
its functions and the carrying out of its duties. It is also
inter
alia
empowered to make provision for the payment in respect of
its employees, former employees and dependants of such employees,
pecuniary
benefits in the case of death or injury of such employees
in the course of their employment with the first respondent. Section
12 of the Tourism Act empowers the first respondent to pay its
employees such remuneration, allowances, bonuses, subsidies, pensions
and other benefits as it may determine, but with the approval of the
Minister responsible for tourism in concurrence with
the
Minister of Finance.
[41] The office in London, where the
appellant was employed, is an office as those contemplated in section
13(d). Its opening and
conduct was probably necessary, or considered
advisable, by the first respondent for the effective and proper
exercise of its functions
and the carrying out of its duties. The
office does not have a separate corporate personality. It is part and
parcel of the first
respondent, which is one undertaking. The fact
that the office was in London does not make it a different
undertaking. It is most
clearly not “
divorced or separated
’
from the first respondent South African national undertaking, but it
is inextricably linked to it. The first respondent’s
main
objective is a singular objective, to promote tourism to the Republic
and it has chosen to do so,
inter alia,
through the
establishment of an office such as the London office.
[42] The Tourism Act contains
provisions relating to its funds (section 16 ) and the submission of
its statement of accounts to
the Minister (section 17). The
provisions of that Act apply to the first respondent; inclusive of
its offices, wherever they may
be situated. The Tourism Act does not
empower the first respondent from conducting the London office as a
separate undertaking.
The facts confirm that the office was not
organised and administered as a separate undertaking divorced from
the first respondent’s
undertaking in the Republic.
[43] In the circumstances, I am of the
view that the court
a quo
erred in reviewing and setting aside
the CCMA award on the ground that the CCMA lacked jurisdiction. In
light of that conclusion
that it is not necessary to deal with the
application for leave to lead further evidence before this Court, but
I shall deal with
the issue of the costs of that application later in
this judgment.
[44] On the basis of the conclusion
reached, the time factor, that the parties had agreed and we were
addressed on the other grounds
upon which the review was brought by
the first respondent, it is in the interest of justice to deal with
them now, even though
the court
a quo
did not do so.
The other grounds of the review
[45] The appellant was charged with
and found guilty of the following two counts of misconduct: Firstly,
with “
alleged dishonesty and/or fraud that on 01 April 2010,
you made an S & T payment to yourself pertaining to your
relocation to
the United Kingdom to the value of £2 400,48
(pounds and pence) whilst only £2 000 (two thousand pounds) had
been approved
by the Acting CFO on 15
th
March 2010. This alleged dishonesty is in direct contravention of our
value of integrity
”. He was also charged and convicted of
“
alleged dishonesty and/or fraud in that, after the Country
Manager gave you permission to use her oracle password on 28 May
2010,
having knowledge of the password, you continued to use it
fraudulently until 6 August 2010, when she discovered this and
brought
it to your attention [that] this alleged dishonesty and/or
fraud is in direct contravention of our value of integrity
”.
[46] The appellant was found guilty of
both charges of misconduct, following a disciplinary hearing held by
the first respondent
according to its disciplinary code. In respect
of the first charge, the appellant was convicted, because he admitted
to paying
himself an amount of £400.48 with “
inadequate
documentation”
and in respect of and the second charge,
because he admitted using the Oracle password of the Country Manager
without her knowledge
even though it was for the business of the
first respondent. The sanction in respect of either charge was
dismissal.
[47] The appellant appealed internally
against the findings on the following grounds: in respect of charge
1, that the Chairman’s
findings indicated that no supporting
documentation was submitted to support appellant’s entitlement
to the amount of £400.48,
although the supporting documents had
been submitted to the Chairman. Further, that it was indicated at the
hearing that the amount
of £2000 which was paid to him as
authorised by the Chief Financial Officer was for his relocation to
London and that the
amount of £400.48 pertained to payments he
had to make for lunches when hosting auditors in March 2010 as well
as payments
for taxis. Further, that the requisition and payment of
the amount to him (i.e. the appellant) was signed by himself and Mr
Armstrong,
who had the authority to authorise the claim. Further that
the claim for the £2000 and the £400.48 were “
valid
business claims
”.
[48] In respect of the second charge,
the appellant contended in his appeal that he never used the password
fraudulently. He only
used it once to approve three purchase orders
after receiving an e-mail from Mr Mogale to receive those orders on
the oracle system
in order to run the management report for July
2010. The Country Manager was on leave at the time and the POs were
however not
sent out until the Country Manager’s return to the
office on 6 August 2010 when she approved all of them, but for the
three
which he had approved on the system. The appellant apologised
to the Country Manager for his wrong action but contended that his
intention was not to cause harm or to defraud the first respondent.
[49] The internal appeal was dismissed
regarding the first count on the basis that the appellant had
produced the receipts for the
expenses incurred, but was “
unable
to produce authorisation for the claims as required in our policy.
Without such authorisation, there is no proof that they
were indeed
valid claims
”. In respect of the second charge, the appeal
was dismissed despite the situation the appellant found himself in,
which necessitated
using the password to meet a deadline, because the
“
sharing of oracle passwords is a huge risk to the
organisation and should not be allowed as a Finance Manager
[the
appellant]
should have been aware of this risk and should have
dealt with it with integrity
”. The appellant’s
services were terminated with effect from 30 September 2010 or 30
October 2010. There are two letters
of termination on record that
create an ambiguity about the date. They are both dated 30 September
2010, one is by the Human Resources
Manager and the other by the
General Manager: Human Resources.
[51] As pointed out earlier, the
appellant referred the dispute about his dismissal to the CCMA. After
conciliation failed, the
matter was referred to arbitration.
[52] The issues for determination
before the Commissioner (the third respondent) were the procedural
and substantive fairness of
the appellant’s dismissal. In
respect of the former, the appellant contended at the CCMA that the
chairperson of the disciplinary
hearing did not give him sufficient
time to access his office. Having considered that evidence, the
Commissioner rejected the contention
and found that the matter was
procedurally fair for another reason. In respect of the substantive
fairness, the Commissioner found
that the appellant was not guilty of
the charges for a number of reasons.
[53] In respect of the first charge,
the Commissioner found that dishonesty and fraud had not been proved
and that, at best, the
probabilities had indicated that the appellant
was guilty of breaching company policy. Unlawful misrepresentation,
which is an
essential element of fraud, was not proved. To establish
fraud there must be proof of unlawful misrepresentation causing
prejudice
to another which was made with the intention to deceive.
The Commissioner found that there was no unlawful misrepresentation,
for
a number of reasons. He stated:
‘
62.
There was no unlawful misrepresentation for
the following reasons: (a)The applicant indicated that
the four
hundred pounds was to reimburse him for taxi fares to the airport and
to see Ms Mokhesi at home on business when she was
off ill as well as
meals around the auditors’ trip. It is common cause that the
auditors attended the London office and that
Mr Van der Walt
indicated that applicant should attend to their meals. It was also
not disputed that the applicant had used taxis
for business
purposes.
63.
(b)The applicant produced rather faint and in other cases illegible
photocopies of taxi
and food invoices. Although the respondent argued
that the receipts did not conclusively prove the applicant’s
claim that
he incurred legitimate expenses I am prepared to accept
that he did incur the said expenses as (i) it is common cause that
the
applicant handed in receipts at the hearing; (ii) Ms Chauke
confirmed that the chairman handed the receipts back to the applicant
as they considered the issue to be about authorisation and not the
receipts and (iii) while Ms Holmes could not remember much about
the
business related to the receipts she could confirm that the applicant
made arrangements for the auditors’ meals with
his credit card
and that he paid for the auditors’ taxi to the airport. Prima
facie the applicant did incur certain meal
and travel expenses for
which, if he followed the correct procedure, he was entitled to be
reimbursed.
64.
(c) The following calculations are in
pounds and pence. The probabilities favour that the
applicant
did incur four hundred pound’s expenses despite the fact that
the receipts are not legible as (i) If one adds up
the legible
receipts of Marks and Spenser 44,08; taxi receipt dated 6/3/10
22,80; Tops Express Pizza 52,87; Abcus
Car 40,00;
Addison Lee receipt for pickup dated 17/2/10 for 55,90; Addison Lee
receipts dated 13/2/10 and 4/2/10 for 50,00
and 30,00 respectively
and undated Addison Lee receipt for 30,00 you get a total of 325,65.
(ii) It is probable that
the two illegible receipts were also
in relation to work-related meals as one clearly has the name Nando’s
on it and as the
outstanding sum of 74,83 is easily accommodated by
two fast food meals.
65.
As
the receipts, although not all legible point closely to the sum of
400,48 pounds claimed by the applicant the probabilities favour
that
he did incur the expenses for work-related issues. There was
therefore no misrepresentation regarding incurring the said
expenses. There may well have been a claim against company
procedure as the applicant may not have gotten pre-authority to
incur
the expenses. However not getting authorisation is a breach of
procedure and does not establish a misrepresentation in regard
to
fraud nor does it establish dishonesty. The element of
misrepresentation has not been proved.
”
[54] The Commissioner also found that
prejudice had not been proved because it is probable, on the
evidence, that the appellant
had incurred the expenses in respect of
his work and if he had followed the correct procedure, the first
respondent would have
been obliged to reimburse him for those
expenses.
[55] The Commissioner went on to find
that for that same reason no intention to defraud had been proved.
Furthermore, he found in
respect of that charge that no intention to
defraud had been proved because on the evidence of Mr Armstrong, who,
was shown to
have had delegated authority to sign the cheque
requisition form, had testified that he would not have signed it if
supporting
documents for the £400 odd had not been attached to
the form. The fact that the appellant did not comply with the
accounting
procedure did not make him guilty of fraud or dishonesty.
[56] In respect of the second charge,
the Commissioner similarly found that no dishonesty or fraud had been
established. The appellant
had been given the oracle password for one
transaction and did not obtain it fraudulently. The Commissioner also
found that it
had not been established that the appellant made any
misrepresentation to anyone when he used the password for the three
other
legitimate business transactions. The appellant’s
contention that the transactions were legitimate and that the use of
the
password was necessary in respect of those transactions, as they
were required for the Manager’s report, were not refuted.
There
was furthermore no evidence that the appellant changed or attempted
to change the password. He did not try to conceal what
he had done
with the password and had no intention to deceive the Country
Manager, Ms Mokhesi concerning the use of the password.
[57] In those circumstances, the
Commissioner had found that the appellant’s dismissal had been
substantively unfair. He ordered
that the appellant be reinstated
from 23 February 2011 and not from the date of his dismissal, because
the appellant was guilty
of breaching company procedures. The
Commissioner awarded the appellant a loss of salary for a period of
six months and two weeks
and the award was made in pounds as agreed
to between the parties.
The review
[58] In its application for review and
in argument before us, the first respondent contended that the
Commissioner’s findings
in respect of the first and second
charges were “
grossly irregular and/or unreasonable
”.
The first respondent in effect submitted that the Commissioner erred
in respect of certain findings, failed to take into
account material
evidence and arrived at a decision that a reasonable decision-maker
would not have made. The first respondent
also attacked the sanction
which was imposed by the Commissioner, arguing, in effect, in that
regard that the appellant was dishonest
and fraudulent and that this
had resulted in a breakdown of the trust relationship between the
parties. In those circumstances,
so it was argued, the
Commissioner ought not to have ordered the reinstatement of the
appellant and that the Commissioner’s
decision in that regard
was one which a reasonable decision-maker would not have made.
[59]
The test for the review of CCMA arbitration awards is now trite. It
has been authoritatively stated in
Sidumo
[20]
and further explained in
Herholdt
v Nedbank Ltd
[21]
and by this Court in,
inter
alia,
Fidelity
Cash Management Service v CCMA and Others,
[22]
Bestel
v Astral Operations Limited and Others
[23]
and recently in
Gold
Fields Mining South Africa (Pty) Limited (Kloof Gold Mine) v CCMA and
Others.
[24]
The
test in brief is whether “
the
decision reached by the Commissioner is one that a reasonable
decision-maker could not reach
?”
[60] I shall first deal with the
detail of the first respondent’s attacks on the Commissioner’s
findings in respect
of the charges and then I will deal with the
attack on the sanction.
[61] In respect to charge 1, the first
respondent’s argument proceeded as follows: the appellant was
in breach of the first
respondent’s policies when he “
committed
the organisation to £400.48
”. The e-mail from the
Chief Financial Officer requesting the appellant to make arrangements
for lunches for auditors who
were coming to the UK was not
pre-authorisation or pre-approval; The appellant was unable to
produce “
any kind of voucher or legitimate business claim
”
in respect of the expenses incurred; Reliance on illegible invoices
which he only produced five to six months after the
charges were laid
did not assist him; The appellant gave contradictory evidence. At
first he averred that the expenses were incurred
during the period
the auditors were in the United Kingdom, but it was clear from two of
those invoices that they were not for that
period. In the appellant’s
supplementary affidavit, he admitted that he was not able to recall
the dates.
[62] The first respondent argued
further concerning charge 1 as follows. The appellant produced
inadequate proof of the expenses
he had incurred and of the fact that
they related to the first respondent. If the appellant had followed
the correct policies and
procedures from the outset he would not have
struggled to justify the expenses and that this shows his dishonesty
in the matter.
Furthermore, that the Commissioner “
incorrectly
calculated the illegible photocopies of the invoices that had been
submitted by the appellant and arrived at an unsubstantiated
conclusion that the total amount came close to £400.48
”.
[63] The first respondent submitted
further regarding charge 1, that the appellant’s reliance on Mr
Armstrong’s evidence
was futile, because Mr Armstrong testified
that he signed the cheque requisition form on the basis of trust.
According to the first
respondent, this amounted to an illegitimate
claim of expenses and the appellant “
clearly enriched
himself by pre-approving his expenses to pay himself
”.
[64] The first respondent submitted
further that the Commissioner had “
failed to take into
account that the mere production of the receipts and slips was not
prima facie proof that the expenses incurred
were for a legitimate
company expense
”. The first respondent argued that the
appellant clearly misrepresented the facts to both, Mr Armstrong and
the first respondent,
by obtaining approval of a cheque requisition
form without the S & T form having been approved by the Country
Manager and that
that in itself showed that the appellant was
dishonest and that his actions amounted to fraud.
[65] The first respondent submitted
further that the “
manner in which the Commissioner stepped
into the shoes of the employer by stating what the charges should
have been instead of
what they were, amounted to a gross
irregularity
”. The Commissioner was also criticised for
relying on the “
criminal law definition of fraud
”.
According to the first respondent, such reliance “
enforces
the unreasonableness of the award because it is trite that the
inquiry is not akin to a criminal trial
”. The first
respondent also submitted that the Commissioner “
failed to
take into account that dishonesty in the employment context does not
mean refraining from criminal acts: it embraces any
conduct which
involves deceit
”.
[66] I need not say much about the
above arguments raised by the first respondent in support of its
attack on the Commissioner’s
findings in respect of count 1.
The arguments lack merit and are devoid of a sound basis. In a number
of instances they are circuitous
and tautologous, based on suspicion
or bias and are not supported by the evidence. The same can be said
of the first respondent’s
arguments raised in respect of the
findings on count 2, which I will deal with later.
[67]
It was not unreasonable for the Commissioner to rely on the so-called
“
criminal
law
”
definition of fraud. Fraud has the same elements even in a civil law
context.
[25]
The first respondent alleged that the appellant was fraudulent and
dishonest and it bore the
onus
to establish those rather serious allegations “
clearly
and distinctly”,
[26]
on a balance of probabilities. The fact that the appellant did not
comply with the company procedures did not make him guilty of
fraud
or dishonesty, or even deceitful, as the Commissioner very reasonably
found.
[68] Mr Armstrong’s evidence in
effect was that he would not have signed the cheque requisition form
without supporting documentation,
which implies that there was
supporting documentation. Ms Holmes’ provides further
confirmation. There was no evidence at
all that the £400.48 was
not in respect of a legitimate expense incurred by the appellant in
the interest of the company.
On the contrary, there was direct
evidence of the appellant to that effect, corroborated by the
receipts (insofar as they were
legible) and the evidence of Mr
Armstrong and Ms Holmes.
[69] In my view, one can definitely
not conclude that the Commissioner arrived at the decision in respect
of count 1 which a reasonable
decision-maker could not have come to
on the available evidential material.
[70] With regard to charge 2, the
first respondent’s arguments were in a similar vain to those
made in support of its attack
on the Commissioner’s findings in
respect of charge 1. The argument, briefly, was as follows: the
Commissioner’s findings
in respect of the second charge were
“
unfounded
” and failed to take into account the
following material evidence, namely, that between 28 May 2011 and 4
June 2011 the Country
Manager, Ms Mokhesi, who was required to
authorise purchase orders initiated by employees in the UK office, by
use of the password
in the Oracle system, was en-route to South
Africa and she had given the appellant the password to authorise a
purchase order for
a transaction. Instead, the appellant released
three further purchase orders by using the password without the
Country Manager’s
permission to do so. According to the first
respondent, the appellant had pleaded guilty to the second charge and
had admitted
wrongfully using the password. He also admitted to the
Country Manager and had apologised to her. According to the first
respondent
– “
the most clearly visible irregularity is
the fact that the Commissioner found the appellant not guilty of an
offence to which he
pleaded guilty at the disciplinary hearing
”.
[71] Even though it is recorded in the
disciplinary proceedings that the appellant pleaded “
guilty
”
to charge 2, one needs to examine that record carefully in order to
establish whether he indeed pleaded guilty as contemplated
in law.
In order for guilt to have been established, the appellant would have
had to freely, voluntarily and unequivocally
admit all the elements
of the charge. That includes fraud and dishonesty. In his defence at
the disciplinary hearing, the appellant
explained that he had used
the password mistakenly in a situation of need. He denied being
fraudulent or dishonest. He admitted
being “
wrong
”
but denied that his intentions in using the password were “
illegal
”.
Technically therefore, the appellant did not plead guilty to the
second charge, because he did not admit all the elements
of the
charge and the crucial ones remained in issue. To find him guilty in
those circumstances would in itself have been grossly
unfair and
irregular.
[72] In the area of criminal law and
procedure, where courts are constantly confronted with guilty pleas
to serious criminal charges,
special safeguards are provided that
ensure that an accused person’s utterances of a plea of guilty
is in fact a proper plea
of guilty and an unequivocal admission of
guilt. For example, in terms of
section 112(1)(b)
of the
Criminal
Procedure Act 51 of 1977
, the presiding officer may have to question
the accused person with reference to the alleged facts of the case in
order to ascertain
whether he or she admits the allegations in the
charge to which he or she has pleaded guilty. Furthermore, courts are
required
not only to be convinced that an accused admits an
allegation in the charge, but that the accused appreciates what that
admission
entails.
[73] Even though the disciplinary
inquiry is not a criminal trial, it has certain features akin to such
a trial. In a disciplinary
hearing, for example, there is (a)
charge(s) of misconduct to which an employee may either plead guilty
or not guilty, which is
similar to a plea to a criminal charge.
Fairness and logic dictate
s
that the same safeguards
that apply in a criminal trial with regard to a plea of guilty,
should also apply in disciplinary hearings
where the employee faces
dismissal.
[74] It is abundantly clear from the
record of the disciplinary hearing that what the appellant himself
said at the time of his
plea of guilty in respect of the second
charge, did not amount to an admission to fraud or dishonesty in
relation to the use of
the password. In those circumstances, he
cannot be found to have effectively pleaded guilty to the second
charge. In the absence
of clear and distinct evidence that the
appellant acted fraudulently or dishonesty, he could not have been
found guilty of that
charge.
[75] At the arbitration, there was no
evidence to prove that the appellant’s use of the password was
fraudulent or dishonest
or that he intended to deceive anyone by
using it and that it was not in the company’s interest that he
used it as and when
he used it for the three purchase orders.
Therefore, in respect of the Commissioner’s findings in respect
of charges 1 and
2, I am of the view, that it has not been shown that
there are findings that a reasonable decision-maker could not have
made.
Re: the sanction
[76] The first respondent submitted
that the Commissioner’s finding on the sanction was irrational
and irregular and not based
on the evidence. According to the first
respondent, the Financial Manager gave evidence that the offence of
not obtaining a pre-authorisation
was viewed in a serious light by
the organisation and that by doing what he did, the appellant had
broken the trust relationship.
The first respondent justified the
sanction of dismissal on the basis that the appellant was “
placed
in a position with a high duty of trust with regard to monetary
issues
” and “
the first respondent as a public
organisation has to take 100% responsibility of how taxpayer’s
money is spent
” and, because “
the trust
relationship was broken and there was no desire for the appellant to
continue in the services of the first respondent
”.
[77] The first respondent also
referred to the averments of the Country Manager, Ms Mokhesi, made in
a supplementary affidavit,
that she could not trust the appellant and
that given the working circumstances, including the fact that the UK
office was small,
she would not be able to run the office. She
averred,
inter alia
, that “
honesty was critical and
that the appellant could have merely picked up the phone when he
wanted to utilise a password and that
he did not do so and as a
result the trust relationship was broken
”. Reference was
also made to what the Chief Financial Officer said in a supplementary
affidavit, namely that the offences
were serious and the trust
relationship had been broken.
[78] The essence of this attack on the
sanction of the Commissioner was on the basis that “
the
misconduct of the appellant was dishonest and fraudulent and resulted
in a complete breakdown of the trust relationship between
the
parties
”, therefore the sanction was not one which a
reasonable decision-maker would have imposed.
[79] Concerning the powers of a
Commissioner pertaining to the sanction, it has been held in
Sidumo
that:
‘
The
Commissioner has to determine whether a dismissal is fair or not.
A Commissioner is not given the power to consider afresh
what he or
she would do, but simply to decide whether what the employer did was
fair. In arriving at a decision, a Commissioner
is not required
to defer to the decision of the employer. What is required is that he
or she must consider all relevant circumstances
.’
[27]
[80] Therefore, it is for the
Commissioner, having considered all the relevant circumstances, to
determine whether the dismissal
by the employer is fair.
[81] The Commissioner in this
instance, in my view, properly took into account all the relevant
circumstances, including the fact
that the fraud and dishonesty had
not been proven and that, at best, a failure by the appellant to
adhere to company procedures
had been shown. In my view, there was
nothing wrong in the Commissioner commenting on the fact that even
though the appellant had
not been shown to be fraudulent or dishonest
it had been shown that he did not comply with company procedures.
[82] As I stated earlier, the
Commissioner’s findings regarding the charges specifically
cannot be said to be unreasonable.
Similarly, his finding, that in
the absence of proof of fraud and dishonesty the sanction of
dismissal was not fair, cannot be
faulted. The misconduct for which
the appellant could have been found guilty of, had he been charged
with it, namely, not complying
with company procedures, did not
justify his dismissal. In my view, the reasoning and findings of the
Commissioner regarding the
sanction were reasonable.
[83] In the circumstances, the review
application that was brought by the first respondent in the court
a
quo
ought to have been dismissed.
[84] There is no reason in my view in
fairness and in law why the first respondent should not bear the
costs of the appeal and of
the review. Appellant’s counsel
argued for the costs of two counsel. I am of the view that one
counsel was adequate and,
accordingly, that only the costs of one
counsel ought to be allowed. In respect of the costs of the
application to lead further
evidence, I make no order of costs in
respect of that application.
[85] In the result, the following
order is made:
1.
No order is made in respect of the application to lead new evidence.
2.
The
appeal is upheld with costs. The order of the court
a
quo
,
reviewing and setting the award of the third respondent, is set aside
and is substituted with the following order:
“
The
review application is dismissed with costs.
”
________________
P Coppin JA
Musi JA
et
Makgoka AJA
concurred in the judgment of Coppin JA.
APPEARANCES:
FOR THE APPELLANT:
Adv Hein Gerber with him Adv R Grundlingh
Instructed by Bester & Rhoodie
Attorneys
FOR THE FIRST RESPONDENT
Mr A Snider
Instructed by Clifffe Dekker Hofmeyr
Attorneys
[1]
The
Labour Relations Act No 66 of 1995.
[2]
(2008)
29 ILJ 2668 (LAC).
[3]
(1995)
16 ILJ 51 A;
[1995] 4 BLLR 1
(AD).
[4]
Unreported
JR455/12 delivered on 16 August 2013.
[5]
See
NUMSA
obo Sinuko v Powertech Transformers (PPM) and Others
[2014] BLLR 133
(LAC).
[6]
(2000)
21 ILJ 1019 (CCMA).
[7]
[2002]
9 BLLR 879 (LC).
[8]
(1993)
14 ILJ 144 (LAC).
[9]
At
para 20.
[10]
Act
No 75 of 1997.
[11]
Act
No 72 of 1993. This is the Act that applied at the time.
It has since been repealed and replaced with the Tourism
Act No. 3
of 2014 which came into operation on 16 June 2014. In terms of
Section 6 of Schedule 1 of that Act: “
Any
disciplinary measure instituted in terms of section 21F of the
repealed Act, any appeal or review lodged in terms of section
21G of
that Act and any criminal proceedings instituted in terms of section
28 of that Act, but not yet finalised when this Act
takes effect,
must be dealt with and concluded in terms of the repealed Act as if
that Act had not been repealed.”
[12]
See
Makhanya
v University of Zululand
2010 (1) SA 62
(SCA) at 72 para 34.
[13]
Gcaba
v Minister of Safety and Security
2010
(1) SA 238
(CC) at paras 75 at 263.
[14]
Compare
Carephone (Pty) Ltd v Marcus NO and Others
1999 (3) SA 304
(LAC) at 311 para 15, 312F para 18;
Sidumo
v Rustenburg Platinum Mines Ltd
2008
(2) SA 24
(CC) at 53 para 82 (
Sidumo)
.
[15]
1950
(2) SA 420 (A).
[16]
At
424.
[17]
See
supra
at 263 at para 74.
[18]
The
Rule provides:”
If
during the arbitration proceedings it appears that a jurisdictional
issue has not been determined, the commissioner must require
the
referring party to prove that the Commission has jurisdiction to
arbitrate the dispute
.”
[19]
See
section 2
of the
Tourism Act No 72 of 1993
.
[20]
Supra
at para 119.
[21]
[2013]
11 BLLR 1074 (SCA).
[22]
[2008]
3 BLLR 1997 (LAC).
[23]
[2011]
2 BLLR 129 (LAC).
[24]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 14 -16 (inclusive) and at paras 20 -1
(inclusive).
[25]
See
on the topic of fraud in civil litigation, for example, LTC Harms
Amler’s
Precedents of Pleadings
(Lexis Nexis Butterworths; 6
th
Ed 2009) pp183-184.
[26]
Ibid.
[27]
At
para 79.