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[2016] ZALAC 106
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G4S Secure Solutions SA (Pty) Ltd v Ruggier N.O and Others (CA 2/2015) [2016] ZALAC 106 (25 November 2016)
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, CAPE TOWN
Reportable/Not Reportable
Case no: CA 2/2015
In the matter between:
G4S
SECURE SOLUTIONS (SA) (PTY) LTD
Appellant
and
COMMISSIONER
ANTHONY RUGGIERO N.O.
First Respondent
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION Second
Respondent
THANDABANTU
NTLOKO Third
Respondent
Heard: 6 September 2016
Delivered: 25 November 2016
Summary:
Third respondent dismissed after 14 years service as security guard
after it was discovered he failed to disclose his prior
criminal
convictions for rape and assault when applying for employment in
1996. At arbitration his dismissal was found substantively
unfair
and
retrospective reinstatement was awarded. On review Labour Court found
that while third respondent had committed misconduct,
dismissal was
unfair and retrospective reinstatement ordered. On appeal the third
respondent’s dismissal was found substantively
fair. Given the
serious nature of the misconduct committed, the sanction of dismissal
was fair. Appeal upheld with no order as
to costs.
Coram: Waglay JP, Landman JA
et
Savage AJA
Judgment
SAVAGE AJA:
Introduction
[1]
This
is an appeal against the judgment and orders of the Labour Court
(Lagrange J) in terms of which the third respondent, Mr Thandabantu
Ntloko, was found to have committed misconduct in failing to disclose
his criminal convictions in an application for employment
in 1996 but
his dismissal was found to be unfair and he was reinstated
retrospectively into his employment with the appellant,
G4S Secure
Solutions (SA) (Pty) Ltd. Leave to appeal was granted in part by the
Court
a
quo
and in part by this Court on petition.
[2]
At
the outset of the hearing, and with no opposition raised, the appeal
was reinstated and the limited delay in filing the appeal
record was
condoned. This followed the appeal having been deemed to have been
withdrawn due to the record not having been filed
within the time
periods provided in rules 5(17) and 5(19) of the Labour Appeal Court
Rules, with no extension of the period within
which to do so having
been granted by the Judge President. The explanation for the delay
was that inaccurate and incorrect information
was included in the
appeal record which required correction following which an amended
appeal record was filed.
Factual background
[3]
The
relevant facts in this matter are common cause. When the third
respondent applied for employment with the appellant in 1996,
he was
asked in a written application for employment: “
Have
you ever been convicted of a criminal offence?
”
He indicated that he had not and the appellant employed him as a
security guard.
[4]
Fourteen
years later, on 30 July 2010, the third respondent applied for
promotion to the position of controller with the appellant.
A
criminal record check was undertaken. It indicated that he had two
previous criminal convictions: one for rape in 1982 for which
he,
being 17 years old at the time, received six lashes; and the second
for assault with intent to do grievous bodily harm in 1991
for which
he paid a fine of R200.
[5]
On 1
November 2010, the third respondent was notified to attend a
disciplinary hearing to answer to an allegation of –
‘
misrepresentation
and/or dishonesty concerning an application for employment and/or
breach of PSIRA Regulations code of conduct’
.
[6]
The
employer’s disciplinary code states that:
‘
Dishonesty
Concerning An Application For Employment
–
This
offence occurs where information provided in support of an
application for employment is subsequently found to be false, and
such information has a material effect on the employer/employee trust
relationship
.’
[7]
Section
23(1)(d) of the Private Security Industry Regulation Act 56 of 2001
(PSIRA Act), the operation of which post-dated the third
respondent’s
employment with the appellant, provides that a person may be
registered as a security service provider provided
he or she “
was
not found guilty of an offence specified in the Schedule within a
period of 10 years immediately before the submission of the
application to the Authority
”.
[8]
At
the disciplinary hearing, the third respondent’s defence was
that he did not know that he had been convicted of a criminal
offence
as he had not gone to jail. Concerning his rape conviction he stated
that:
‘
I
was 17 and did not understand the law. It was not rape. She was my
girlfriend. She agreed to it because she was not where she
was
supposed to be’
.
[9]
He
stated further that the assault case related to an incident in which
–
‘
(a)
nother
man who came from jail to visit a lady in my mother’s house.
When he grabbed this lady I defended her, and assaulted
him. He laid
a charge against me. I had to go to court. My brother got a lawyer to
defend me. I was given a fine and my brother
paid the fine
.’
[10]
After
he returned to school in 1991 to complete grade 12, the third
respondent was trained and registered as a security officer
and in
1996 was employed as such by appellant. When he undertook National
Key Point training in 2008 he was not advised that he
had a criminal
record.
[11]
At
the conclusion of the disciplinary hearing, the third respondent was
found guilty of misconduct and was in November 2010 dismissed
from
his employment with the appellant.
Arbitration award
[12]
Aggrieved
with his dismissal, the third respondent referred an unfair dismissal
dispute to the Commission for Conciliation, Mediation
and
Arbitration, initially seeking reinstatement but subsequently, in his
referral to arbitration, seeking compensation. At the
arbitration
hearing, the appellant accepted that the third respondent had a clean
disciplinary record. It relied on the third respondent’s
obligation, as reflected by the rule contained in its disciplinary
code, to disclose truthfully his criminal record to his employer.
In
addition, it placed emphasis on s23(1)(d) of the PSIRA Act.
[13]
The
third respondent’s evidence was that he was not aware that he
had a criminal record and understood that all criminal records
before
1994 had been scrapped. Since the PSIRA Act only came into operation
in November 2001, he contended that s23(1)(d) did not
apply to him as
he had been convicted of an offence contained in the schedule to the
Act more than 10 years before it came into
operation.
[14]
The
commissioner was “
not
convinced that the
[third respondent]
contravened
the rule
”
or that he had misrepresented himself in his 1996 application for
employment given that he was not aware that he had a criminal
record
at the time and found it “
plausible
”
that he had not wilfully misrepresented the facts. The third
respondent was found not to have breached the PSIRA code of
conduct
in that his convictions fell outside of the 10-year period prescribed
by s23 (d) of the PSIRA Act.
[15]
Given
his 14 years’ good service, his clean disciplinary record and
his national key point training, the commissioner found
the
appellant’s application for the third respondent’s
deregistration by PSIRA “
caustic
”
on the basis that it would have been more constructive for the
appellant to have assisted the third respondent in having
his
criminal record expunged. The third respondent’s dismissal was
accordingly found to be substantively unfair.
As
to the issue of relief, the commissioner stated:
‘
I
find no reason why the Applicant should not be reinstated in this
matter. In terms of compensation I am of the view that retrospective
compensation from the date of dismissal (14 November 2010) up to the
arbitration hearing on 8 March 2011 would not be just and
equitable
under the circumstances. I cannot hold the Respondent accountable for
the matter taking almost three and a half months
to be referred by
the Applicant and heard at arbitration. I find that two months
compensation would be just and equitable
.’
Judgment of Labour Court
[16]
The
appellant sought the review of the arbitration award by the Labour
Court taking issue with the arbitration award on the basis
that the
decision reached was not one that a reasonable commissioner could
have made on the material before him. The Labour Court
found it
“
difficult
to understand how the arbitrator could reasonably have concluded that
[the
third respondent]
was
unaware of the status of his criminal record and could have denied
having any criminal conviction
”.
The Court found that the third respondent had committed misconduct in
failing to disclose his criminal convictions and
that the
commissioner’s finding was not reasonably justified on the
evidence. The Court agreed with the commissioner that
the third
respondent had not acted in breach of the PSIRA Act in that the last
conviction predated the 10-year period prior to
the commencement of
the Act.
[17]
Turning
to sanction, the Labour Court found that the apparent breach of the
PSIRA Act had been the appellant’s primary concern.
The Court
had regard to the third respondent’s clean disciplinary record,
good work history and the fact that the “
trust
issues arising from the misrepresentation do not appear to have been
[the appellant’s]
principal
concern despite the fact that
[the third respondent]
was
guilty of dishonesty
”.
It found that it was reasonable to conclude that the appellant would
not have dismissed the third respondent had it believed
his
employment would not be contrary to the PSIRA Act. The Court noted
that had the appellant’s witnesses testified that
in light of
the misrepresentation, the third respondent would have been unable to
trust him, irrespective of whether the PSIRA
Act was breached, a
different conclusion might have been warranted. In the result, the
Court
a
quo
reinstated the third respondent into his employment with the
appellant retrospective to 1 August 2011.
Issues in appeal
[18]
In
issue in this appeal is whether the Labour Court erred in finding
that –
18.1
the
dismissal of the third respondent was not for a fair reason; and
18.2
reinstatement
was the appropriate remedy.
Discussion
[19]
The
Labour Court cannot be faulted for its finding that it is “
difficult
to understand how the arbitrator could reasonably have concluded that
[the third respondent] …
could
have denied having any criminal conviction
”
when as much was apparent from the evidence before the commissioner.
On the third respondent’s version at the disciplinary
hearing –
that he did not know he had been convicted as he did not go to jail –
he was aware that he had committed
two criminal offences for which he
had been punished. On his version at arbitration – that he did
not know he had a criminal
record as he understood all records before
1994 had been scrapped – he was aware that he had been
convicted of two criminal
offences for which he had been punished and
in respect of which he understood that he may have had a criminal
record.
[20]
It
followed that when the third respondent was asked “
Have
you ever been convicted of a criminal offence?
”
the evidence clearly indicated that he knew that he had. It did not
matter whether he knew that these offences were recorded
in his
criminal record. What the evidence showed was that he chose not to
disclose the offences when he was expressly asked to
do so.
[21]
With
it an offence in the appellant’s disciplinary code to provide
false information in support of an application for employment,
the
commissioner’s finding that he was “
not
convinced that the
[third respondent]
contravened
the rule
”
or that he had misrepresented himself, is not one borne out by the
evidence. It followed that the finding of the commissioner
that the
dismissal was substantively unfair on the basis that no rule had been
breached was a decision that a reasonable decision-maker
could not
reach on the material before him.
[1]
[22]
Having
determined that the commissioner’s decision fell to be reviewed
and set aside, the Labour Court, having regard to the
evidence on
record found that the third respondent had committed misconduct
insofar as he had been dishonest in his application
for employment.
In addition, the Court correctly found that the appellant’s
reliance on the PSIRA Act was misplaced given
that the third
respondent’s convictions fell outside of the 10-year period
prescribed by the Act and given that the Act was
not in existence
when the appellant employed him.
[23]
With
the third respondent having been found to have committed the
misconduct alleged, it fell to the Labour Court to determine whether
his dismissal was fair. In doing so, the Labour Relations Act 66 of
1995 (LRA) does not compel deference to the decision of the
employer
but requires rather a consideration of “
all
relevant circumstances
”
.
[2]
[24]
The
Labour Court’s finding that the third respondent’s
dismissal was unfair was predicated on what it considered to
have
been the primary concern of the appellant, namely that the provisions
of the PSIRA Act had been breached. The Court noted
that the
appellant did not contend that any trust issues had arisen from the
third respondent’s misconduct. This led the
Court to find that
it was reasonable to conclude that the third respondent would not
have been dismissed but for the appellant’s
view that employing
him was contrary to the provisions of the PSIRA Act.
[25]
In
determining the fairness of a dismissal, each case is to be judged on
its own merits. Item 3(4) of the Code of Good Practice
recognises
that dismissal for a first offence is reserved for cases in which the
misconduct is serious and of such gravity that
it makes continued
employment intolerable, with instances of such misconduct stated to
include gross dishonesty. When deciding
whether dismissal is
appropriate, the Code requires consideration, in addition to the
gravity of the misconduct, of personal circumstances
including length
of service and the employee’s previous disciplinary record, the
nature of the job and the circumstances
of the infringement
itself.
[3]
Other relevant considerations include the presence or absence of
dishonesty and/or loss and whether remorse is shown.
[4]
[26]
The
employment relationship by its nature obliges an employee to act
honestly, in good faith and to protect the interests of the
employer.
[5]
The
high
premium placed on honesty in the workplace has led our courts
repeatedly to find that the presence of dishonesty makes the
restoration of trust, which is at the core of the employment
relationship, unlikely.
[6]
Dismissal for dishonest conduct has been found to be fair where
continued employment is intolerable and dismissal is “
a
sensible operational response to risk management”
.
[7]
Obtaining
employment on false pretences whether by misrepresenting
qualifications, skills, experience or prior work history has
been
found to justify dismissal,
[8]
with it stated in
Boss
Logistics v Phopi and others
[9]
that if this were
not so, a sanction short of dismissal would only serve to reward
dishonesty.
[27]
A
conviction for rape and assault is antithetical to employment in the
position of a security guard given the nature of that position.
The
fact that the PSIRA Act bars the employment of a person in the
security industry until 10 years has elapsed from the date of
a
criminal conviction illustrates the seriousness with which criminal
infractions are, for obvious reason, viewed in the industry.
An
employer is entitled to full disclosure of all relevant information
when a decision is being made to employ a person as a security
guard
given the trust implicit in the nature of that position; and where an
express question is asked of a potential employee,
an employer is
entitled to expect an honest answer in response.
[28]
It is
so that the third respondent’s years of service and clean
disciplinary record provided mitigation
and,
as stated in
Edcon
Ltd v Pillemer NO and Others,
[10]
were
“
an
important consideration in determining the appropriateness
of…dismissal
”.
[11]
However, as was
stated by this Court in
Toyota
SA Motors (Pty) Ltd v Radebe and Others:
[12]
‘
...
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
…’
[13]
[29]
It is
so that there existed no risk of repetition by the third respondent
of the offence in its precise form and that the damage
suffered was
limited to his employment in circumstances in which the appellant may
otherwise not have employed him. However, the
fact remained that the
third respondent was employed on false pretences in circumstances in
which he had deliberately concealed
the true state of affairs from
the appellant. His conduct was dishonest and constituted a serious
breach of the appellant’s
disciplinary code. When confronted
with evidence of his misconduct, the third respondent did not express
any remorse but blamed
his dishonesty first on his lack of knowledge
that his offences amounted to convictions and then later on his
belief that after
1994 his criminal record no longer existed.
[30]
Having
regard to all of these relevant factors, and in spite of the absence
of direct evidence showing the breakdown in the trust
relationship
and the appellant’s misplaced reliance on the provisions of
PSIRA, I am satisfied that the sanction of dismissal
imposed by the
appellant on the third respondent was fair. The false
misrepresentation made by the third respondent was blatantly
dishonest in circumstances in which the appellant is entitled as an
operational imperative to rely on honesty and full disclosure
by its
potential employees. It induced employment and when discovered was
met with an absence of remorse on the part of the third
respondent.
The fact that a lengthy period had elapsed since the
misrepresentation, during which time the third respondent had
rendered long service without disciplinary infraction, while a
relevant consideration, does not compel a different result. This
is
so in that the fact that dishonesty has been concealed for an
extended period does not in itself negate the seriousness of the
misconduct or justify its different treatment. To find differently
would send the wrong message.
[31]
In
spite of the LRA’s emphasis on progressive discipline, given
the nature of the misconduct committed and the absence of
any remorse
shown and having regard to considerations of fairness, the appellant
was entitled to cancel the employment contract
and dismiss the third
respondent. It is, in any event, relevant to note that the third
respondent in the referral of his dispute
to arbitration sought
compensation and not reinstatement as a remedy for unfair dismissal.
Having regard to the real dispute between
the parties
[14]
and the provisions of s193(2),
[15]
the imposition of a sanction short of dismissal was therefore
unwarranted.
[32]
It
follows that the appeal must succeed. The orders of the Labour Court
are set aside and replaced with an order that the dismissal
of the
third respondent was fair. An order of costs would be neither just
nor fair.
Order
[33]
In
the result the following order is made:
1.
The
appeal is upheld with no order as to costs.
2.
The
order of the Court
a
quo
is set aside and replaced with the following order:
‘
(1)
The arbitration award issued by the first respondent is reviewed and
set aside; and replaced with the order that the dismissal
of the
applicant was substantively fair.
(2)
There is no order as to costs.’
Savage AJA
Waglay JP and Landman JA agree.
APPEARANCES:
FOR THE APPELLANT:
Mr
W Hutchison
Instructed by
Moodie Robertson Attorneys
FOR
THIRD RESPONDENT: In
person
[1]
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) at para 110 (
Sidumo
).
[2]
Sidumo
(supra)
at
para 79.
[3]
Item
3(5).
[4]
Gcwensha
v CCMA and Others
[2006]
3 BLLR 234
(LAC)
at para 36;
Irvin
& Johnson
(1999)
20 ILJ 2302 (LAC) at para 29.
[5]
Sappi
Novoboard (Pty) Ltd v Bolleurs
(1998) 19 ILJ 784 (LAC) at para 7;
CSIR
v Fijen
[1996] 6 BLLR 685
(AD) 691;
Murray
v Minister of Defence
[2008] ZASCA 44
;
[2008]
3 All SA 66
(SCA);
[2008] 6 BLLR 513
(SCA);
2009 (3) SA 130
(SCA);
2008 (11) BCLR 1175
(SCA); (2008) 29 ILJ 1369 (SCA)
at
para 6.
[6]
Miyambo
v CCMA and Others
[2010]
10 BLLR 1017
(LAC); (2010) 31 ILJ 2031 (LAC) at para 16
;
Toyota SA (Pty) Ltd v Radebe supra;
and
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry
[2007] ZALC 93
;
[2008]
3 BLLR 241
(LC) at para 42.
[7]
De
Beers Consolidated Mines Ltd v CCMA and Others
[2000]
9 BLLR 995
(LAC) at para 22.
[8]
Auret
v Eskom Pension & Provident Fund
(1995)
16 ILJ 462 (LC);
Hoch
v Mustek Electronics (Pty) Ltd
(2000) 21 ILJ 365 (LC);
Boss
Logistics v Phopi and Others
[2010]
5 BLLR 525
(LC).
[9]
[2010]
5 BLLR 525
(LC).
[10]
[
2010]
1 BLLR 1 (SCA).
[11]
At
para 22.
[12]
[2000]
3 BLLR 243 (LAC).
[13]
At
para 15.
[14]
CUSA
v Tao Ying Metal Industries
and
Others
[2009] 1 BLLR 1
(CC) at para 65.
[15]
Section
193(2) provides that ‘(t)he Labour Court or the arbitrator
must require the employer to reinstate or re-employ the
employee
unless-
(a) the employee does
not wish to be reinstated or re-employed;
(b) the circumstances
surrounding the dismissal are such that a continued employment
relationship would be intolerable;
(c) it is not
reasonably practicable for the employer to reinstate or re-employ
the employee;
or
(d) the dismissal is
unfair only because the employer did not follow a fair procedure.”