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[2016] ZALAC 30
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Dikobe v Mouton N.O. and Others (JA45/2015) [2016] ZALAC 30; [2016] 9 BLLR 902 (LAC); (2016) 37 ILJ 2285 (LAC) (15 June 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not reportable
Case no JA 45/2015
In the matter between:
DIKOBE, MATLOTLENG,
GERALD
Appellant
and
MOUTON, DAVID, N.O.
First Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
SUN INTERNATIONAL T/A
SUN CITY
Third Respondent
Heard:
26 May 2016
Delivered:
15 June 2016
Coram:
Ndlovu, Sutherland JJA
et
Murphy AJA
JUDGMENT
SUTHERLAND JA
Introduction
[1]
Two
men walk into the bar of a casino. One is a VIP (a very important
punter). The other is an off-duty employee of the casino.
A routine
surveillance camera records them at the bar. Drinks are bought.
Payment is made with vouchers, not money. These vouchers
are issued
by the casino to VIPs; an incentive to prolong their stay and, one
must suppose, facilitate a mood conducive to gamble
away more than
the vouchers are worth. The employee handles the vouchers. Both men
receive and remove the drinks thus bought.
[2]
Upon
the basis of this episode, the employee, ie, the appellant, was
confronted with an allegation that he breached a workplace
rule.
Exactly what this rule supposedly prescribes is addressed hereafter.
The “Disciplinary enquiry record” of the
third
respondent, the employer, Sun City, describes the charge as:
‘
Unauthorised
possession and use of MVG
[1]
drinks
voucher in that on 18 July 2008 - you were in possession of MVG
vouchers and used them to purchase drinks at the Rhino bar’
.
[3]
He
was convicted of that charge, and dismissed summarily. In a
subsequent arbitration, it was held that the dismissal was
substantively
fair. On review, that award was confirmed. On appeal,
the award and review judgment are challenged. The appeal falls to be
decided
in accordance with the test of whether the award is one which
a reasonable arbitrator could not have rendered.
[2]
[4]
The
transcribed record of the arbitration, owing to a defect in the
recording device, is woefully inadequate because much is omitted.
The
parties are content to do the best they can with what remains. The
record is partially amplified by the notes of the arbitrator.
Happily, hardly any material facts are in dispute. The key evidence
is about the movements of the appellant and the VIP, Moloro,
at the
bar and the handling of the vouchers, as captured on camera. A text
narrative of what was observed on camera is available.
[5]
Apart
from issues concerning several applications for condonation by the
appellant for failure to comply with the rules of the court,
to which
reference is made later, the critical questions that arise on appeal
are threefold:
5.1.
What
hard facts
can
be found
about what occurred at the bar on 18 July 2008?
5.2.
Can
the versions of the appellant and the VIP, Moloro explaining what
occurred, be rebutted or rejected?
5.3.
Is
there a rule in existence that the appellant breached? In this
regards, the key enquiry is what the content and scope of the
rule
was, and what the understanding of the rule by the casino staff could
reasonably be.
The evidence
[6]
The
material portion of surveillance report notes that between 15h16
until 15h28:
‘
15h16:
[appellant] was seated on the wall opposite the Rhino bar.
15h16.59:
A punter [ie Moloro] arrives from the gaming area and hands one
drinks voucher over
to [appellant], [appellant] already has a
secondary (sic) voucher in his possession. They proceed to the Rhino
bar area.
15h17.12:
[appellant] hands one voucher over to [Moloro] and keeps the other in
his possession.
14h17.17:
Both [appellant] and [Moloro] arrive at the bar counter.
15h18.13:
[appellant] and [Moloro] order drinks from the barman on duty
utilising the
two drink vouchers.
15h18.14-40: The
barman prepares a drink for [Moloro]
15h19.20 – 54: The barman
prepares a drink for the [appellant]
15h20.16: [appellant] hands
over two drink vouchers to the barman.
15h20.33: [appellant] places
remaining vouchers in his front left trouser pocket.
15h20.44: [Moloro] vacates Rhino bar
area. [appellant] moves from the Rhino bar area to the wall where he
was previously seated.’
[7]
These
bare facts provoke two questions; how and why was appellant “in
possession” of a voucher at the inception of the
episode and
why did appellant ostensibly pocket the “remaining”
vouchers at the end of the episode.
[8]
The
appellant’s version of these events is that he and Moloro are
friends. They arrived at the casino together. A round of
drinks had
already been procured before the episode which is captured on camera
took place. What the surveillance film portrays
is a second round of
drinks. When Moloro walked into the picture in this filmed episode,
Moloro handed to the appellant a voucher
and a booklet of vouchers.
On the way to the bar, appellant gave a single voucher to Moloro, and
retained the booklet. At the bar,
Moloro gave the single voucher back
to appellant, and appellant tore out a further voucher from the
booklet. Appellant put two
vouchers on the counter, and put the
booklet in his trousers. The barman asked for a third voucher.
Appellant tore out another
voucher from the booklet and gave it to
the barman. This booklet was returned to Moloro, at some later stage.
The arbitrator’s
award perfunctorily notes that the appellant
stated that Moloro had given a single voucher and a booklet, which
Moloro had authorised
him to use.
[9]
The
transcript of Moloro’s evidence is very bad. Unlike the
evidence of the appellant, there is no copy of the arbitrator’s
notes of evidence to assist analysis. The allusion to Moloro’s
evidence in the award is, like that of the appellant, perfunctory
and
consists of a single sentence recording that Moloro stated that he
offered the appellant a drink and had given him vouchers
to do so.
What can be made out from the faulty transcript is that Moloro claims
that he sent the appellant to buy drinks for himself,
he offered the
appellant a drink, the vouchers he gave to appellant for that purpose
were not enough and a further voucher was
handed over. Moloro
confirms that appellant retained possession of his booklet whilst
Moloro went off to gamble.
[10]
The
narrative noted here is the sum of the relevant evidence other than
one aspect which requires discrete treatment.
[11]
An
exercise was conducted to try to tie up the drinks bought in the
surveillance episode with the vouchers issued to Moloro. There
was an
ostensible discrepancy. However, nothing certain could be
ascertained, as innocent explanations could not be ruled out,
including the barman affixing the vouchers randomly to invoice slips.
At the hearing of the appeal, this point was fairly conceded
by
counsel for Sun City. The significance is plain: did the appellant
have in his possession contraband vouchers? However, whatever
legitimate suspicion may have arisen the factual matrix was such that
no safe inferences could be drawn. The award is silent on
the matter,
and properly so.
What Rule?
[12]
The
conclusions of the arbitrator were that it was proven that the
appellant was indeed in possession of the vouchers, that he was
not
authorised to be so, and moreover, used them to buy a drink for a
“guest” and himself. From the award, it is plain
that the
arbitrator approached the matter on the footing that employees were
“not allowed to possess any vouchers”.
[13]
Although
appreciating that the enquiry required him to interrogate the “rule”
that was supposedly breached, there is
nothing in the award to
indicate that the arbitrator actually did so. The arbitrator cited
paragraph 15 ([the correct citation
is paragraph 7
[3]
)
of the code of good practice but the allusion seems to have been an
empty ritual.
[14]
Reference
was made to the customary acknowledgement of a receipt of the rules
handbook and the seniority of the appellant (he was
a slots manager
with long service) being relevant to his awareness of the rules, but
there is no appreciation that the rule relied
upon was, at best,
oral, and had not been recorded in any document of any kind disclosed
in the proceedings. The receipt of the
rules handbook was therefore
of no help at all in determining the key issue. In argument on
appeal, an allusion was made to certain
written rules about not
taking bribes, behaving honestly, not consuming the employer’s
stock, and not being in possession
of the employer’s property,
which plainly the appellant must have known. However, as he was not
charged with any of these
felonies, reference to them is irrelevant.
Instead, the arbitrator was overly impressed by the notion that the
appellant, in relying
on the VIP’s authorisation, could not
“shelter” behind such a permission, when, as the
arbitrator understood
the rule, it was not subject to such a
qualification.
[15]
In
my view, the arbitrator did not grasp the need to prove the content,
scope and the effective communication of the alleged rule,
which had
been in dispute throughout the proceedings.
[16]
An
employer who seeks to discipline an employee for breach of an oral
rule must expect to encounter obvious difficulties. That insight,
self-evidently, is why rules need to be written down. Of course,
there is no need to write down “thou shalt not steal”
and
similar injunctions, but when a need for a rule that is
workplace-specific is required, the prudence of so doing is manifest.
This case illustrates that predicament admirably.
[17]
Is
the rule relied on here simply “thou shalt not possess a
voucher issued to a VIP”? As it has nowhere been recorded,
is
this formulation an accurate representation of what was communicated
to the staff? What does “possess” mean? Does
it mean: do
not touch? If a VIP sends an employee with the VIP’s booklet to
buy drinks for the VIP is that “possession”
as
contemplated by the rule? It can be safely inferred that possession
by an employee of a booklet that has not been issued to
a VIP is
prohibited; that much flows logically from the purpose of the
vouchers.
[18]
If
it be posited that the VIP vouchers may not be “used” by
an employee, what does this encompass? Perhaps the place
to begin
this enquiry is what the VIP is allowed to do with the vouchers. If,
say, Booklet No 101 is issued to Punter A, is he
forbidden to use
them to buy a drink for punter B? No evidence is tendered to clarify
that possibility. Moreover, it is not a logical
inference to draw
that a VIP may not “use” the vouchers for that VIP’s
guest, stereotypically, his non-gambling
girlfriend in attendance to
marvel at his skills in the art of gambling. When presented at the
bar, no proof of identity is asked
for by the barmen. Why should the
casino care who is the beneficiary of the VIP’s largesse? If it
does care, no evidence
was adduced to demonstrate the rationale and
the limits, if any.
[19]
The
defence of the appellant, throughout all the proceedings, was that
his “possession” of the vouchers was with Moloro’s
express permission. The word “possession” is of course
the word that a layman would use to describe the
handling
of the vouchers. Were the appellant aware of the term “detentio”,
he would probably have denied being in “possession”
and
claimed he merely “detained” the vouchers as agent of
Moloro.
[20]
If
the appellant had not handled the vouchers and Moloro alone had done
so and stood him a drink, would that have breached the rule?
It may
fairly be inferred that a rule could reasonably exist to inhibit
on-duty employees from accepting a drink from a guest.
But would such
a rule extend to the example of an employee being off-duty and, as
such, in the identical position as any other
guest in the casino?
Does the rule encompass off-duty employees? If so, why would that be
reasonable? Presumably, when off-duty,
an employee may enter and
transact business like any other visitor. The only witness asked,
Lezile Guba, a Senior Shift Surveillance
Manager, said she did not
know if there was a rule against off-duty employees drinking in the
casino.
[21]
When
the appellant says he breached no rule known to him when he accepted
Moloro’s hospitality and did so in Moloro’s
presence, and
in that context, handled Moloro’s vouchers, why is he wrong? He
expressly put this in issue and there is no
evidence whatsoever to
rebut his claim that no such prohibition exists. Nor, logically, in
my view, can any inference be drawn
from the evidence that casts
doubt on that claim.
[22]
In
my view, the employer, Sun City, failed to establish proof of a rule
that the appellant breached. The vagueness of a rule against
“possession” is plain; boundaries need to be drawn. The
brute fact of “handling” vouchers, without more,
cannot
be the sum of a reasonable rule. Moreover, no evidence of the
communication of an intelligible rule was tendered. The high
point of
evidence on this aspect is a remark that pre-shift briefings alluded
to the vouchers being a guest benefit not intended
for staff use, but
exactly what the scope of the rule of “non-use” remains
obscure.
Conclusions
[23]
In
summary:
23.1.
The
award is not reasonable, having failed to address the key question of
the content, scope and application of the rule relied
upon to allege
a breach.
23.2.
The
evidence demonstrates no breach of any reasonable rule.
23.3.
The
appellant’s dismissal was unjustified.
[24]
It
may be mentioned that the award is bereft of any consideration of the
appropriate sanction, it seemingly being that the arbitrator
took it
for granted that guilt on the terms he found, warranted dismissal.
That approach is, in principle, wrong.
[25]
Moreover,
on the proven facts, ie an off-duty employee accepted drinks from a
guest who paid for them with vouchers intended for
the guest’s
consumption, and the employee handled the vouchers, it is far from
obvious that termination of the employment
relationship was
warranted. Moreover, when added to that factor, the appellant’s
unblemished 17 years of service, the dismissal,
even if a breach of a
rule, in the terms described above, had occurred, dismissal was not
obviously warranted.
[26]
In
the judgment of the review court, the question of the rule was not
considered. The reason for that was that the Labour Court
took the
view that the rule was not in dispute. That approach was
misconceived. The “rule” was contested from the very
first interview the appellant was called to attend when he was
suspended pending a disciplinary enquiry. The contents of the
pre-arbitration
conference minute alluded to by the Labour Court
affords not the slightest support for the notion that the rule was a
common cause
fact.
[27]
Reinstatement
has been sought and must be granted. An argument was advanced to
suggest that the lapse of time militates against
such an order. That
factor alone is of no relevance. In the absence of evidence to
demonstrate intolerability or impracticability
as contemplated by
section 193(2)
of the
Labour Relations Act 66 of 1995
, no lawful
reason exists not to order reinstatement.
[4]
Axiomatically, where an employee is exonerated from misconduct, no
factual basis can exist to found an argument that the trust
relationship is compromised.
[28]
It
was pointed out that the appellant was responsible for a delay of
about a month in all of the elapsed time for which condonation
is
granted, along with condonation of the other delays in compliance
with the rules of this Court, not least, on account of the
prospects
of success on the merits. The delays were brief and occasioned by his
impecuniosity which inhibited him putting his attorney
in funds to
prosecute the case, a satisfactory explanation. In context of an
elapse of approximately eight years since his dismissal
on 18 August
2008, I regard that month as
de
minibus
,
and it may fairly be ignored.
[29]
As
to costs, given the circumstances described and the appellant, as an
individual having prosecuted his case alone, fairness dictates
the
granting of costs.
The order
[30]
An
order is made thus:
30.1.
Condonation
of the failure to comply with the rules of the court is granted.
30.2.
The
lapsed appeal is reinstated.
30.3.
The
appeal against the judgment of the court
a
quo,
refusing to review and set aside the award, is upheld.
30.4.
The
award of the arbitrator is reviewed and set aside.
30.5.
The
third respondent is ordered to re-instate the appellant with effect
from the date of his dismissal, on 18 August 2008, without
loss of
any remuneration and related benefits or loss of seniority and of
service entitlements.
30.6.
The
appellant shall be liable to tender his services to the third
respondent upon service on the appellant of a written notice,
furnishing notice of at least one full calendar month plus one day,
calculated from the date of such service, of a date to resume
work.
30.7.
The
third respondent shall bear the appellant’s costs in the Labour
Court and in this Court, excepting all costs relating
to the
preparing and service of condonation applications.
_______________
Sutherland JA
Sutherland JA (with whom
Ndlovu JA
et
Murphy AJA concur)
APPEARANCES:
FOR THE APPELLANT:
Adv T Makamu
Instructed by Kgokong
Namenmg Tumagole Inc
FOR THE
RESPONDENT:
Adv P Le R Theron
Instructed by Saloj’ee
Du Plessis Van Der Merwe
[1]
MVG = most valued
guest or VIP.
[2]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC).
[3]
7 Guidelines
in cases of dismissal for misconduct
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.
[4]
See too
Edcon
Ltd v Pillemer NO and Others
(2009) 30 ILJ 2642 (SCA).