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[2017] ZALAC 4
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Bidserv Industrial Products ( Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA73/15) [2017] ZALAC 4; (2017) 38 ILJ 860 (LAC) (10 January 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 73/15
In the matter between:
BIDSERV
INDUSTRIAL PRODUCTS (PTY)
LTD
Appellant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
First Respondent
COMMISSIONER L.
DLAMINI
N.O.
Second Respondent
SACTWU
Third Respondent
SIMON
RAMAPUPUTLA
Fourth Respondent
Heard:
25 August 2016
Delivered:
10 January 2017
Summary:
The fourth respondent employee had been dismissed from the services
of the appellant company pursuant
to a disciplinary hearing at which
he was found to have been dishonest in that he had submitted a false
statement of costs (a quotation)
from his child’s school in
order for the appellant to pay more than it should. He referred an
unfair dismissal dispute to
the CCMA, where a commissioner found that
there was an element of collusion between the fourth respondent and
his witness with
regard to the procurement of the quotation and that
prima facie
the fourth respondent could be said to be guilty
of dishonesty. The commissioner further determined that the appellant
had been
inconsistent in the application of discipline and that the
fourth respondent’s length of service militated against his
dismissal.
He ordered the appellant to reinstate the fourth
respondent with limited back-pay. The award was upheld on review by
the
Labour Court.
On appeal the Labour
Appeal Court found that the commissioner glossed over and did not
determine the primary question whether the
fourth respondent was
dishonest which determination was central to the question whether the
reason given for the fourth respondent’s
dismissal had been
fair;
Held
,
that the probabilities weigh heavily against the fourth respondent
showing that he knowingly submitted a false quotation in the
hope of
claiming more for his child’s uniform from the appellant;
Held
,
that the commissioner ought not to have embarked on the question of
inconsistency in the application of discipline without having
first
determined the underlying reason for the dismissal and that he did
not provide any basis for his finding that the other two
employees of
the appellant had been dishonest;
Held
,
that it was incomprehensible that the commissioner concluded that the
substratum of the employment relationship had not been destroyed
when
he had not determined whether the fourth respondent committed a
dishonest act and its impact on the relationship of trust;
Held,
that the misconduct committed by
the fourth respondent was of a serious nature and that his length of
service foundered in the face
of the weight of authority by the
Courts.
The appeal was
therefore upheld with costs.
Coram:
Landman JA, Savage AJA, and Phatshoane AJA
JUDGMENT
PHATSHOANE AJA
[1] This is an appeal
against the judgment and order of the Labour Court (per Matyolo AJ)
dated 16 July 2015 dismissing the application
for the review and
setting aside of the arbitration award issued under Case No: GAJB
27478-12 by the second respondent, the commissioner,
under the
auspices of the Commission for Conciliation, Mediation and
Arbitration (CCMA), the first respondent. The appeal comes
before us
with the leave of that Court.
[2] Bidserv Industrial
Products (Pty) Ltd t/a G Fox & Co (Bidserv), the appellant,
operates a bursary scheme in terms of which
its employees would apply
for payment of their children’s school fees and related
expenses, such as the school uniforms and
stationery. The Skills
Equity Committee (SEC) of Bidserv decided who of the employees would
be eligible for this form of funding
and the amount to be paid. Mr
Simon Ramapuputla, the fourth respondent, who had been in the
services of Bidserv since 1997, served
in this committee in his
capacity as a shop steward. He was dismissed by Bidserv on 20
September 2012 pursuant to a disciplinary
enquiry which found him
guilty of dishonesty in that he “procured a false statement of
costs from his child’s school
in order for the company to pay
more than it should.”
[3] Regrettably, the
transcribed record of the arbitration proceedings is difficult to
follow. It is convoluted; has several interventions
and indistinct
parts. It is a tedious exercise to sort the chaff from the corn.
Nevertheless, the following factual background
can be distilled
therefrom. Mr Amon Mohamme, called by Bidserv, testified that during
2012 the SEC received several bursary applications.
At the meeting
held on 14 February 2012 this committee questioned two of the bursary
applications received from two employees for
uniforms as being
excessive. One application had been filed by Ramapuputla. He claimed
R3 500.00 for the school uniform. The other
applicant was Ms Lorraine
Marokwane. She claimed R3 115.45 and R3 365.45, respectively, for her
two children’s uniforms.
Mohamme says that during this meeting
Ramapuputla intimated that he had confronted the principal of Mmutle
Combined School (the
school) about the excessive amount of the
quotation in respect of the uniform.
[4] Mohamme went on to
say that at the subsequent committee meeting held on 13 March 2012
Ramapuputla denied having previously said
that he confronted the
school principal about the quotation. I must immediately point out
that during the presentation of his case
Ramapuputla confirmed that,
at the internal enquiry that was held against him, Bidserv called at
least five witnesses who confirmed
Ramapuputla’s initial
statement.
[5] Mr Norman Hilton
Smookler, the Human Resource Manager of Bidserv, was mandated by the
SEC to conduct an investigation into the
authenticity of the
quotations of R3 500.00 received from Ramapuputla and of R3 115.45
and R3 365.45 in respect of Marokwane. The
minutes of the SEC’
meeting held on 13 March 2012 reflect that Smookler reported that the
principal informed him that the
quotation submitted by Ramapuputla
was “wrong” and issued without his permission.
[6]
Smookler requested Mohamme to conduct some investigations at the
school. Mohamme says he attended at the school posing as a
parent of
a prospective learner and enquired about the fees and uniform costs.
Mmutle is a no-fee public school.
[1]
Mohamme intimates that the principal gave him a list of the uniform
required at the school and informed him of a retail store,
Capital
Fashions, which was the stockist for the school uniform. Mohamme went
to Capital Fashions where he was provided with a
quotation totalling
a puzzling R627.00 only in respect of the uniform, far below the R3
500.00 quotation submitted by Ramapuputla.
[7] Mohamme intimates
that at the meeting of the SEC held on 27 March 2012 Ramapuputla
claimed that the quotation was sourced by
his wife from the school.
He was requested to bring a new quotation which he did on 10 April
2012. The minutes of 10 April 2012
reflects that the total of this
quote was an amount of R1 447.00. Ramapuputla showed this to the
committee but refused to submit
it for record purposes.
[8] Under
cross-examination Mohamme was confronted with a quotation from
another employee, one Khahlamba, referred to on occasion
as Miyambo.
The quotation is reflected in a letter from E.P.P Mhinga Secondary
School. The amount claimed for the sports uniform
was deleted and the
amount quoted reduced by the SEC. He was asked why the committee did
not similarly alter Ramapuputla’s
quotation. He did not know
what transpired in that case because the committee received many
applications. Mohamme intimated that
he also conducted an
investigation in respect of Ms Marokwane’s quotation and found
nothing wrong with it. She claimed
for her two children. The
shop’s prices corresponded with the amounts quoted. The SEC was
of the view that some of the items
could be shared by the two
children. Mohamme says that Marokwane’s quotation was reduced
and approved after the investigation.
[9]
Smookler’s evidence largely
corroborated that of Mohamme. He added that the questionable
quotation submitted by Ramapuputla
was faxed to Bidserv marked for
Ramapuputla’s attention. According to him Ramapuputla would
have noted that the quotation
was inflated. The shop stewards
received the bursary applications from the employees of Bidserv;
checked them to ensure their correctness
before submitting them to
the committee for approval. Ramapuputla was a senior shop steward at
Bidserv. He collected the bursary
applications from other employees
and was familiar with the procedures and internal workings.
[10] Ramapuputla
challenged the fairness of his dismissal based on the following. He
spoke to a school teacher named Chris, his
relative, to fax the
quotation to him at work. The quotation came directly from the school
but was late. He enquired from Smookler
whether he could still submit
it. Smookler’s response was affirmative. Ramapuputla submitted
it to Bidserv’s payroll
administrator. He never spoke to the
principal at the time of procuring the quotation but only did so
after Bidserv served him
with a charge-sheet concerning an act of
misconduct. He requested Mr Lota Mahlabane, the deputy principal of
the school, to forward
a confirmatory note/letter showing that the
quotation came from the school. This was provided. The School
collected money and bought
the uniforms and not the parents. He did
not submit this confirmatory note at the initial enquiry which was
held against him on
the same offence because that enquiry was aborted
due to lack of evidence. The same charge of misconduct was revived.
He was called
to attend the second disciplinary enquiry. He submitted
the confirmatory note at the latter enquiry. Pursuant to the enquiry
he
was requested to submit his evidence in mitigation of the sanction
in writing. He was not afforded the opportunity to argue in
mitigation of the sanction.
[11] Under
cross-examination Ramapuputla intimated that he never claimed for his
child’s school tours. This is absurd because
the quotation he
submitted to Bidserv reflects the costs in respect of entertainment
excursions and/or tours. He could not explain
whether his child went
on tours as reflected in the impugned quotation. He intimated that
the child resided with its mother in
Limpopo whereas he was based in
Gauteng.
[12] Ramapuputla called
Mr Lota Mahlabane, the deputy principal, to testify in his case. He
confirmed that Mmutle is a no fee school.
Mahlabane says that
Ramapuputla called the principal asking for a quotation urgently. It
is to be recalled that Ramapuputla testified
that he never spoke to
the principal at the time of procuring the quotation. He intimated
that Ramapuputla’s wife collected
the quotation from the
school. This contradicts the evidence presented so far by Ramapuputla
and Bidserv to the effect that the
quotation was directly faxed from
the school to Bidserv.
[13] Belatedly in the
course of the arbitration Mahlabane was shown a letter he authored
dated 18 February 2013 from the school
which was never put to any of
Bidserv’s witnesses. It reads:
‘
We
appreciate that G. Fox [Bidserv] provides scholarships for employees
so that their children can attend school, etc, and/or the
total
amount available is capped and in some years, claims are reduced pro
rata.
SR [Simon Ramapuputla] submitted a
claim from the school with uniform amounting to R3 500.00. Maybe
we need to clear this up!
The amount stands as it was decided in a
parent meeting and adopted, through the SGB it becomes a legit
amount. However, G Fox
[Bidserv], if it has a problem, would just pay
what they can afford.
In part (2), I wanted to see the
authenticity of the letter and why it is causing problems, that’s
why I wanted to see the
copy.
Mr Ramapuputla never came to our
school for anything, except phoning to request a “quote.”
The headmaster never met any stranger
on 23/03/2012, as our daily or log book reflects. All these in para
4-6 are just allegations
based on building a constructive dismissal
case.
The school especially the headmaster
does not align itself/himself with this paragraph (7) and it is very
incriminating and demeaning.
Please supply the school with the said
quote which was signed by Chris urgently as proof.
Lastly, in this school there are many
educators who are related to the learners and the teaching and
learning is very harmonious
and we give this “quoted”
relationship the benefit of a doubt, which is also harmonious.
However, and succinctly the school has
the right to charge school fees even though it is declared a no-fee
school, by the powers
vested in the SGB- through parents of learners-
as a juristic person.
Hoping this will serve as evidence
towards what is happening and be given the benefit of a doubt.’
[14] The commissioner
described Mahlabane’s conduct as “shoddy”. Without
more, he determined that:
‘
(W)hat is
clear from the evidence of the applicant (Ramapuputla) and his
witness is that there was an element of collusion with
respect to the
procurement of the quotation. On the face of it, the applicant could
be said to be guilty of dishonesty.’
[15] The commissioner
then dealt with the question of consistency in the application of
discipline as follows:
‘
However, the
main question
that arises here is whether this was the only situation where a
quotation was found to be containing things that were beyond what
was
normally expected. It is common cause here that during the submission
of quotations, there were two applications that were
deemed to be
higher than normal. Both were investigated and confirmed that they
were requiring payments for extra things. In the
case of the other
employee (Lorraine Marokwane), the respondent pointed out that her
quotation had the correct pricing but that
she wanted to buy two
items as opposed to one. Invariably, all they did was to alter the
quotation and pay for one item each. There
is also the story of
Miyambo P, who wanted sports uniform (R800.00) which the respondent
deleted on the list and adjusted the payment.
In both cases, there is
clear case of dishonesty to be made. The decision by the respondent
to charge the applicant for misconduct
and not the other two
employees is arbitrary, to say the least.’ (My emphasis)
[16] The commissioner
found that there was no evidence to support the differential
treatment between Ramapuputla and the other two
employees. He then
turned his attention to the appropriateness of the sanction meted
out. He found that Ramapuputla was not afforded
an opportunity to
present evidence in mitigation of the sanction during his internal
enquiry. He was of the view that Ramapuputla’s
15 years of
service and his clean disciplinary record militated against his
dismissal. He held that no evidence was led to prove
that the
employment relationship had been irreparably damaged by the
submission of the impugned quotation. All that Bidserv had
to do, he
stated, was to reduce the amount payable in respect of the quotation
as it did with other employees.
[17] At the denouement of
his award the commissioner remarked that Ramapuputla did not approach
the CCMA with clean hands. He ordered
that he be reinstated into the
service of Bidserv but limited his retrospective pay to three months’
salary to mark his displeasure
at the conduct he “deemed
inappropriate with respect to the whole saga of procuring the
quotation.”
[18]
On review, the South African Clothing and Textile Workers Union
(SACTWU), the third respondent, on behalf of Ramapuputla, argued
at
great length that he was subjected to double jeopardy
[2]
.
Although this argument was raised during the arbitration proceedings
apparent from the award is that it was not dealt with by
the
commissioner. In the absence of a cross-review by SACTWU and
Ramapuputla the Court
a
quo
,
quite rightly, declined to entertain the issue. Having made reference
to several decisions of the Courts on the review test
[3]
the Court
a
quo
concluded that:
‘
[12]
In the circumstances of this case, the commissioner applied his mind
to the evidence and even though
he expressed suspicion of possible
collusion in misconduct by the fourth respondent about which he
commented that “on the
face of it, the applicant could be said
to be guilty of dishonesty”. I do not find such a statement as
constituting a finding
of dishonesty against the fourth respondent.
[13]
Though the commissioner took a dim view of the evidence of the fourth
respondent’s witness
comparing it to a movie script going
horribly wrong he did not make a definite finding of dishonesty that
had the effect of breaking
the relationship of trust. Secondly, and
looking at all the circumstances, he found that reinstatement with
some partial back-pay
would be the appropriate sanction. I am of the
view that the commissioner was entitled to do this and is enjoined to
do so by s
138 of the LRA [Labour Relations Act, 66 of 1995].
[14]
In the circumstances, I am satisfied that the commissioner’s
award passes the test as set out
above in that it falls within the
band of reasonable decisions that could be reached in the
circumstances of this case. I am also
satisfied that the commissioner
committed no material irregularities and/or acts of misconduct the
result of which were to render
his overall outcome unreasonable.’
[19] There are three key
issues emerging for consideration in this appeal. Firstly, whether
the employee’s conduct amounts
to an act of dishonesty;
secondly, whether the commissioner’s finding on the question of
consistency in the application of
discipline was reasonable; and
thirdly, whether the award survives scrutiny under the review test. I
deal with the three questions
contemporaneously.
Consideration of the
question whether Ramapaputla committed an act of dishonesty
[20] Mr G A Fourie, for
Bidserv, contended that the Court
a quo
erred in finding that
the commissioner did not make a determination on whether Ramapuputla
acted dishonestly. Although the arbitration
award is not a model of
clarity, read in context, the flow of reasoning and the analysis to
which the purported comparative cases
were subjected to, it was
contended, it can reasonably be inferred that the commissioner made a
finding that Ramapuputla and his
cohorts colluded and therefore he
was guilty of dishonesty by submitting an inflated quotation. In the
alternative, Mr Fourie argued
that if this Court agrees that the
commissioner did not make a finding that Ramapuputla was dishonest,
as found by the Court
a quo
, the award ought to be reviewed
and set aside as he failed to address the primary issue and deprived
the parties of a fair trial.
[21]
During the course of the arbitration the commissioner summarised the
key issue in dispute as being “whether or not Ramapuputla
submitted a fraudulent (inflated) quotation to his employer”.
On this issue, Bidserv and Ramapuputla’s version were
diametrically opposed. The approach to resolving mutually destructive
versions was aptly summarised as follows.
[4]
To come to a conclusion on the disputed issues a court must make some
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities. The latter involves an
analysis
and evaluation of the probability or improbability of each party's
version on each of the disputed issues. The Court will
as a final
step, determine whether the party burdened with the
onus
of proof has succeeded in discharging it. I am referring to this
synopsis bearing in mind that s 138 of the Labour Relations Act,
66
of 1995 (LRA), enjoins the commissioners to conduct the arbitration
in a manner that they consider appropriate in order to determine
the
disput
e
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities. To this end,
they have
the discretion as regards the appropriate form of the proceedings.
[22]
Save to strongly criticise the evidence presented by Mahlabane, the
commissioner did not make any credibility findings on the
other
witnesses. He also did not effectually deal with the probabilities in
respect of the disparate versions apart from perfunctorily
stating
that on the basis of the material before him the decision to dismiss
Ramapuputla was not justifiable. Without substantiation
he was also
of the view that Bidserv’s case was improbable. An assessment
of the evidence on the basis of demeanour without
regard for the
wider probabilities constitutes a misdirection. Without a careful
evaluation of the evidence that was given against
the underlying
probabilities, little weight can be attached to the credibility
findings of the presiding officer.
[5]
[23]
The fact that the commissioner glossed over and did not determine the
primary question whether Ramapuputla was dishonest, as
correctly
found by the Court
a
quo
,
is problematic. That determination was central to the question
whether the reason given for Ramapuputla’s dismissal was
fair.
In
County
Fair Foods (Pty) Ltd v CCMA,
[6]
this Court sounded a warning that failure to deal with an important
facet may, depending on the circumstances of the case, provide
evidence that the commissioner did not apply his/her mind to that
facet.
[24]
This Court gave the following seminal exposition of the review test
in the
Head
of Department of Education v Mofokeng and Others
[7]
‘
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the enquiry.
In
the final analysis, it will depend on the materiality of the error or
irregularity and its relation to the result. Whether the
irregularity
or error is material must be assessed and determined with reference
to the distorting effect it may or may not have
had upon the
arbitrator's conception of the enquiry, the delimitation of the
issues to be determined and the ultimate outcome.
If but for an error
or irregularity a different outcome would have resulted, it will ex
hypothesi be material to the determination
of the dispute. A material
error of this order would point to at least a prima facie
unreasonable result. The reviewing judge must
then have regard to the
general nature of the decision in issue; the range of relevant
factors informing the decision; the nature
of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance
with the objects of the
LRA
.
Provided
the right question was asked and answered by the arbitrator, a wrong
answer will not necessarily be unreasonable.
By
the same token, an irregularity or error material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues,
with the result that the award may be set aside on that ground
alone.
The arbitrator however must be shown to have diverted from the
correct path in the conduct of the arbitration and as a result
failed
to address the question raised for determination
.’
[8]
(footnotes omitted) (My emphasis)
[25]
On the view I take of this matter, quite apart from unsubstantiated
conclusions he made, the commissioner misconceived the
nature of the
enquiry he was called upon to determine. Where this Court is in as
good a position as the commissioner to decide
the matter, regard
being had to the considerable lapse of time since the dismissal took
effect, it ought to do so and not to remit
it to the CCMA, by parity
of reasoning to the Bargaining Council, for a fresh arbitration.
[9]
Remitting this matter would merely serve to postpone the inevitable.
This brings me to the question whether Ramapuputla knowingly
submitted a false or inflated quotation.
[26] The evidence
presented by Bidserv is credible and there is no satisfactory counter
to it whereas the contradictions and obfuscations
apparent in
Ramapuputla and Mahlabane’s evidence are significant. For
instance, Mahlabane was asked to name the outfitter
where the school
purchased its uniforms. He responded that the parents bought uniforms
anywhere they liked. To this extent, his
evidence contradicted that
of Ramapuputla who said the school purchased the school uniforms.
Mahlabane went on to say that there
was no particular stockist from
which the school purchased uniforms. However, he later changed and
said that he knew that Capital
Fashions was the stockist of the
school uniforms. He was asked why the quotation contained a charge
for the school uniform if the
parents purchased the uniforms. He
painted himself into a corner by giving various contradictory and
illogical responses. He,
inter alia
, said:
‘
This is for
say you have a company if we put the money inside the school then the
school can take the money to the relevant parent
and the books have
been audited for that matter.”
[27] Mahlabane tried hard
to justify the R3 500.00 quotation submitted by Ramapuputla. He
suggested that the amount quoted would
be for a period of three years
yet the quotation is silent on a three-year period. He also intimated
that not every parent paid
the R3 500.00 for the uniform. This begs
the question why the quotation was issued. He then insinuated that
when a child was sponsored
a quotation will be issued whereas in
other instances “ordinary parents can buy anywhere they liked”.
When pressed on whether
the quotation was solely issued because Ramapuputla was sponsored he
gave a further startling response as
follows:
‘
No you see a
quotation is a quotation if the position is like this and say you
must pay you are then asked and as the principal
has said in that
letter we can reduce it as you like, you can pay any amount that you
like because the provision (indistinct) and
it is not there and there
is not this thing must..’
[28] Mahlabane’s
logic or lack thereof in explaining why the school issued a quotation
to Ramapuputla is telling. His evidence
was correctly rejected by the
commissioner as resembling “a bad story line in a movie”.
The probabilities are overwhelming
against Ramapuputla that he
knowingly, in collaboration with his cohorts at the school, submitted
a false quotation in the hope
of claiming more than he was entitled
to receive from Bidserv for his child’s uniform. He was
therefore dishonest as charged.
The finding on
inconsistency in the application of discipline
[29] Having found that
prima facie
Ramapuputla could be said to be guilty of
dishonesty, the commissioner considered whether Bidserv had been
consistent in the application
of disciplinary measures. This latter
aspect was decisive to his finding and conclusion that the dismissal
was unfair. It is important
to bear in mind that the only concern
raised by Ramapuputla with regard to the alleged inconsistent
application of discipline is
that Bidserv ought to have reduced his
claim for the school uniform as it did in the case of Marokwane and
Khahlamba/Miyambo. In
my view, the commissioner ought not to have
embarked on the question of inconsistency in the application of
discipline without
having first determined the underlying reason for
the dismissal. In other words, whether the dishonest act was in fact
perpetrated.
[30] The commissioner
does not provide any basis for his finding that the other two
employees (Marokwane and Khahlamba/Miyambo)
had been dishonest.
During the course of the arbitration, he correctly summarised the
evidence as follows:
‘
Commissioner:….the
point I am asking you is the Lorraine’s issue has been
(discussed) in the (context) of saying there
were two problems right,
when it was discovered the verifications (indistinct) was done both
ultimately one was reduced….
the
price was correct but there were more items as to suppose to
the(sic)
, the price was reduced and I
think…..that that is the relevance of Lorraine’s
involvement in this comparison…’
[31]
This Court sounded a warning on approaching the question of
inconsistency in the application of discipline willy-nilly
without
any measure of caution.
[10]
Inconsistency
is a factor to be taken into account in the determination of the
fairness of the dismissal but by no means decisive
of the outcome on
the determination of reasonableness and fairness of the decision to
dismiss.
[11]
A generalised
allegation of inconsistency is not sufficient. A concrete allegation
identifying who the persons are who were treated
differently and the
basis upon which they ought not to have been treated differently or
that no distinction should have been made
must be set out
clearly.
[12]
[32] The evidence was
that the prices reflected in the quotation submitted by Marokwane
corresponded with the retail store’s
prices. There was no
suggestion that Marokwane acted dishonestly or misrepresented the
price of the school uniform. It was also
never put to any of
Bidserv’s witnesses that there was impropriety involved in the
procurement of her quotation. In the case
of Khahlamba amongst the
items claimed by him was the sports uniform to the value of R800.00.
This item was deleted by the SEC
from his claim and the balance was
paid. Again, no evidence of improper conduct or misrepresentation was
adduced or produced by
SACTWU and Ramapuputla with regard to
Khahlamba’s case. Resultantly, there is some disconnect between
the decision the commissioner
ultimately reached and the evidence
presented. This is untenable because the materiality of the error had
a decisive impact on
the outcome of the arbitration.
Consideration of the
sanction imposed
[33]
As already alluded to, the commissioner held that no evidence was led
to prove that the employment relationship had been irreparably
damaged by the submission of the impugned quotation. He was of the
view that Ramapuputla’s 15 years of service and his clean
disciplinary record militated against his dismissal. In
Toyota
SA Motors (Pty) Ltd v Radebe and Others
[13]
,
this
Court pronounced:
‘
[15]…..Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty
of misconduct, the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length
of service can save an employee who is
guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty.
It appears to me that the
commissioner did not appreciate this fundamental point.
[16] I hold that
the first respondent's length of service in the circumstances of this
case was of no relevance and could not provide,
and should not have
provided, any mitigation for misconduct of such a serious nature as
gross dishonesty. I am not saying that
there can be no sufficient
mitigating factors in cases of dishonesty nor am I saying dismissal
is always an appropriate sanction
for misconduct involving
dishonesty. In my judgment the moment dishonesty is accepted in a
particular case as being of such a serious
degree as to be described
as gross, then dismissal is an appropriate and fair sanction.’
[14]
[34]
Recently in
Woolworths
(Pty) Ltd v Mabija and Others,
[15]
this Court held:
‘
[21] The
fact that the employer did not lead evidence as to the breakdown of
the trust relationship does not necessarily mean that
the conduct of
the employee, regardless of its obvious gross seriousness or
dishonesty, cannot be visited with a dismissal without
any evidence
as to the impact of the misconduct. In some cases, the more
outstandingly bad conduct of an employee would warrant
an inference
that trust relationship has been destroyed. It is, however, always
better if such evidence is led by people who are
in a position to
testify to such break down. Even if the relationship of trust is
breached, it would be but one of the factors
that should be weighed
with others in order to determine whether the sanction of dismissal
was fair..’
[16]
[35] Regard being had to
the analysis set out above it is incomprehensible that the
commissioner could conclude that the substratum
of the employment
relationship had not been destroyed when he had not determined
whether Ramapuputla committed a dishonest act
and its impact on the
trust relationship. There is no question that the misconduct
committed by Mr Ramapuputla is of a very serious
nature. His length
of service founders in the face of the weight of authority and facts
referred to in the preceding paragraphs.
The fact that he was a shop
steward who had to be exemplary to other employees aggravates his
misconduct. He also did not show
any contrition. On this conspectus,
his dismissal was justified.
[36]
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator.
[17]
I
am satisfied that the Court
a
quo
was wrong in concluding that the commissioner’s award fell
within the band of reasonable decision-makers. To my mind, the
decision by the commissioner is unsustainable on the facts. This
gross irregularity vitiates the award which stands to be reviewed
and
set aside.
[37] On the question of
costs. SACTWU, the third respondent, stood by Ramapuputla throughout
this litigation up to the appeal stage.
In my view, it will be in
accordance with the dictates of fairness for costs to follow the
result of this appeal including those
of the proceedings before the
Labour Court.
Order
[38] In the result, I
make the following order:
1.
The appeal is upheld
with costs;
2.
The order of the Court
a quo
is set aside and substituted with the following:
‘
(a)
The application to review and set aside the arbitration award issued
by the Commission for
Conciliation, Mediation and Arbitration (CCMA)
under Case No: GAJB 27478-12 is granted;
(b)
The arbitration award issued by the CCMA under Case No: GAJB 27478-12
is reviewed
and set aside;
(c)
Mr Simon Ramapuputla’s (the fourth respondent’s) unfair
dismissal claim
is dismissed;
(c)
The South African Clothing and Textile Workers Union (SACTWU), the
third respondent,
and Mr Simon Ramapuputla are to pay the
costs of the application jointly and severally,
the one paying the other to be absolved
.’
_____________________
MV Phatshoane
Acting Judge of the
Labour Appeal Court
Landman JA and Savage AJA
concur in the judgment of Phatshoane AJA.
APPEARANCES
FOR THE
APPELLANT:
Adv G.A. Fourie
Instructed by Brian
Bleazard Attorneys
FOR THE THIRD AND FOURTH
RESPONDENTS:
Adv F.J. Nalane
Instructed by: Cheadle
Thompson
[1]
It is a
school subsidised by the Department of Education and does not charge
school fees.
[2]
Being
disciplined twice for the same offence whilst he had already been
acquitted of that offence.
[3]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC); (2007) 28
ILJ
2405 (CC);
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013) 34
ILJ
2795 (SCA) at 2806 para 25;
Shoprite
Checkers (Pty) Ltd v Ramdaw No and Others
(2001) 22 ILJ 1603 (LAC) at 1636 para 101;
Palaborwa
Mining Co Ltd v Cheetham and Others
(2008) 29 ILJ 306 (LAC) at 317 para 13.
[4]
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et Cie and
Others
2003
(1) SA 11
(SCA) at 14-15 para 5.
[5]
See
Medscheme
Holdings (Pty) Ltd and Another v Bhamjee
2005 (5) SA 339
(SCA) at 345A-C para 14.
[6]
[1999] 11
BLLR 1117 (LAC).
[7]
(2015)
36 ILJ 2802 (LAC).
[8]
At para 33.
[9]
Department
of Justice v Commission for Conciliation, Mediation &
Arbitration and Others
(2004) 25 ILJ 248 (LAC) at 304 para 48.
[10]
Absa
Bank Ltd v Naidu and Others
(2015) 36
ILJ
602
(LAC) at 616 para 36.
[11]
Absa
Bank Ltd v Naidu and Others
(2015) 36
ILJ
602 (LAC) at para 42.
[12]
National
Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section)
(2014) 35
ILJ
2406 (LAC) at 2417 para 39
[13]
(2000) 21
ILJ
340 (LAC).
[14]
At paras
15-16.
[15]
[2016] 5
BLLR 454 (LAC).
[16]
At 458 para
21.
[17]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013)
34
ILJ
2795 (SCA) at 2806 para 25.