Fort v COEGA Development Corporation (Pty) Ltd and Others (PA8/16) [2017] ZALAC 50 (17 August 2017)

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[2017] ZALAC 50
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Fort v COEGA Development Corporation (Pty) Ltd and Others (PA8/16) [2017] ZALAC 50 (17 August 2017)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: PA 8/16
Not Reportable
In the matter between:
JACQUELINE
FORT

Appellant
and
COEGA DEVELOPMENT
CORPORATION (PTY) LTD

First Respondent
JULIA CAMERON
N.O.

Second Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION

Third Respondent
Heard:
February 2017
Delivered:
17 August 2017
Summary:
CCMA - finding that the dismissal of an employee on account of her
conflict of interest/unethical conduct
(nepotism) and influencing the
recruitment process - substantively unfair.
On review to the
Labour Court - the Court undertaking a process of independent
assessment and evaluation of the evidence - concluding
that the
commissioner’s award was “obviously wrong” and
falling outside the range of reasonable decision makers
- replacing
the award with an order that the dismissal was substantively fair.
On appeal to the
Labour Appeal Court - the Court finding - on a cumulative analysis of
the evidence - that the employee was not
a credible witness -
satisfied on the probabilities - that the employee actively
manipulated the recruitment system in order to
promote the
appointment of an employee she had a personal relationship with -
further finding - the Labour Court fairly evaluated
the evidence and
drew inferences that were consistent with the material facts.
On the issue of costs
- setting aside the review costs on consideration of the requirements
of law and fairness.
The order of the
Labour Court confirmed on appeal- no order made as to costs in
respect of both the proceedings before the Labour
Court and the
Labour Appeal Court.
Coram: Waglay JP,
Davis JA and Phatshoane AJA
JUDGMENT
Phatshoane AJA
[1]
This is an appeal against the whole of the judgment and the order of
the Labour Court (per Myburgh AJ)
in
reviewing and setting aside the arbitration award dated 09 November
2014 issued under Case No: ECPE 5722-13 by commissioner Julia
Cameron
under the auspices of the Commission for Conciliation Mediation and
Arbitration (CCMA) and replacing it with an order that
the dismissal
of
Ms
Jacqueline Fort, the appellant, was substantively fair. T
he
present appeal against that judgment, which has since been reported
as
Coega
Development Corporation (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
(2016) 37 ILJ 923 (LC), is with the leave of the Court a quo.
[2]
This case is predicated on the manifestation of alleged nepotism said
to have been committed by Ms Jacqueline Fort, the appellant,
at Coega
Development Corporation (Pty) Ltd (CDC), the third respondent
[1]
.
She is accused of having improperly participated in the appointment
of two employees, Ms Christa Layla Coetzer in July 2012 and
Mr
Muhammed Talha Ebrahim in October 2012.  The   basis
of the allegation of nepotism at the arbitration phase was
that Ms
Fort’s actions during the appointment process were actuated by
an underlying conflict of interest arising from a
romantic
relationship she had with Mr Adnaan Ebrahim, a relative of the two
appointees at the relevant period in which their appointments
were
effected. She then set about artificially obtaining and submitting
their CVs; participating in the appointment of the two
employees; and
not disclosing the true nature and extent of the relationship between
herself and these employees.
[3] Ms Fort commenced
employment at CDC, a largely state-funded public entity, on 01
November 2004. She was dismissed from the services
of CDC on 21
November 2013 pursuant to a disciplinary enquiry, which was chaired
by an attorney, in which she was found guilty
of the following acts
of misconduct:
‘
Charge
2- Conflict of interest /Unethical conduct:
‘
Conflict of
interest and/or unethical conduct in that on or about 30 July 2012
you deliberately, and with an intention to deceive
your employer,
placed yourself in a position of conflict with the interest of your
employer for your personal gain and/or the personal
gain of Ms
Christa Coetzer, and/or you deliberately failed to manage a conflict
of interest in that despite the fact that you had
submitted the CV of
Ms Christa Coetzer and were therefore extremely compromised and/or
conflicted, you agreed to partake and actually
did so partake in the
interview process and advanced your own interest to ensure that Ms
Christa Coetzer was interviewed and employed
by your employer and to
the detriment of your employer’s interest.’
Charge 3- Gross
Misconduct:
‘
Gross
misconduct in that you intentionally and wrongfully influenced the
recruitment process and the decision of the interview panel,
which
you were part of, to appoint one Ms Christa Coetzer into the second
position of Document Control Officer that was not advertised
and
authorised by your employer.’
Charge 4- Gross
dishonesty:
‘
During or
about October 2012 you intentionally and wrongfully acted without
honesty towards your employer in that you,
inter
alia
:
4.1
Obtained and submitted the CV of One Mr Muhammed Ebrahim, caused him
to be interviewed for
the position of an intern at the Construction
Village of the CDC. As a result of your dishonest actions, you
inter
alia:
4.2
Gave the said Mr Muhammed Ebrahim an unfair advantage
4.3
Sought to unduly influence the ultimate decision of the interview
panel which you were a
member of;
4.4
Unduly preferred the said Mr Muhammed Ebrahim as the suitable
candidate to the prejudice
of your employer. ’
Charge 5- Conflict of
interest / Unethical conduct
‘
Conflict of
interest, and/or unethical conduct in that during or about October
2012, you deliberately and with an intention to deceive
your
employer, placed yourself in a position of conflict with the interest
of your employer for your personal gain and/or for the
personal gain
of Mr Muhammed Ebrahim, and or deliberately failed to manage a
conflict of interest in that, despite the fact that
you had caused
the CV of Mr Muhammed Ebrahim to be submitted and shortlisted and
were therefore extremely compromised and/or conflicted,
you agreed to
partake and actually did so partake in the interview process.’
[4] Ms Fort, a Unit head
of Safety, Health, Environmental and Quality (SHEQ) reported to the
Executive Manager (EM) of the Operations
Business Unit, Mr Themba
Koza, who in turn reported to the Chief Executive Officer, Mr Pepi
Silinga. She was a senior manager earning
around R1.4 million rand
per annum and her unit had about 20 subordinate employees. She was
overseeing the document control functions
for CDC.
[5] The position of
document control officer, previously occupied by Ms Michelle Bakker,
became vacant when Ms Bakker was promoted
to the position of
integrated management systems (IMS) coordinator. Mr Robert Mogotsi
previously occupied the position of IMS coordinator
but was seconded
to Coega Strategic Solution (a Rural Development Programme) in
Pretoria. The document control officer position
was a contractual
position and its funding would be sourced from the programme.
[6] On 18 June 2012, Mr
Monde Songongo, a recruitment consultant at CDC engaged in the Human
Resource (HR) Department, received
an instruction from the Acting HR
Manager, Mr Graig Luckman, to assist Operations Business Unit in
advertising the position of
a document control officer. Mr Songongo
prepared the internal advertisement. No suitable internal candidates
were found. He requested
CDC’s five recruitment agencies to
advertise the position externally and for each to provide him with
their top two shortlisted
candidates by 10 July 2012, the closing
date. Mr Songongo says that Ms Fort informed him that she was in
possession of a CV of
a suitable candidate (probably a reference to
Ms Coetzer’s CV). It was not an unusual practice at CDC for
employees to submit
the CV of candidates they wished to be
interviewed in the manner that Ms Fort proposed to do.
[7]
Mr Songongo screened the CVs received from the agencies. On 12 July
2012 he forwarded those that met the requirements to the
Operations
Business Unit line manager, Ms Michelle Bakker to do the final
shortlisting. Ms Coetzer’s CV was not in the pile
of CVs
submitted by Mr Songongo to Ms Bakker as it had not been submitted by
Ms Fort at the closing date. However, on that same
day,
12
July 2012, Ms Coetzer sent her CV electronically to Ms Fort.
The
next day, 13 July 2012, Ms Fort sent Ms Coetzer CV to Mr Songongo by
e-mail which reads “
Please
retain for future position in admin or finance.
”
It appears that Mr Songongo did not understand this e-mail as having
its source from a prior discussion with Ms Fort more
so because the
CV bore no relation to the document control position. He intimated
that between 12-25 July 2012 he reminded Ms Fort
on more than one
occasion that he had not received the CV in issue. On one occasion Ms
Fort wanted to give him a hard copy of the
CV but he was
uncomfortable in accepting same without Ms Bakker being aware of it.
He consequently requested Ms Fort to put her
proposal in writing
which would enable Ms Bakker to know when and how the CV was
received. It is not a practice that is encouraged
at CDC to receive
CVs after the closing date. However, the final say rested with the
line manager, in this case, Ms Fort.
[8] On 25 July 2012 Mr
Songongo and Ms Bakker received an e-mail from Ms Fort to which was
attached the second CV for Ms Coetzer.
It reads “
This is a
lady I was talking about that I’d like to have been included
for Monday interviews (CV is not brilliant but I think
she’s
excel (sic) in the position)”
.
[9] Ms Coetzer’s
second CV was included in the pile of the CVs for shortlisted
candidates and she was also shortlisted. The
interviews were
conducted on 30 July 2012. Ms Bakker, Ms Fort and Ms Marrisa
Knepscheld, an HR coordinator, comprised the interviewing
panel.
Five candidates were interviewed which included Ms Coetzer. According
to Ms Knepscheld, prior to the interviews, Ms
Fort informed her
fellow panelists that she knew Ms Coetzer “
through business
dealings she had at the firm of attorneys where Ms Coetzer was
working”
.  No mention was made of the existence of any
personal relationship between the two. Ms Knepscheld says that had
there been
any revelation of a personal relationship between Ms Fort
and Coetzer the panel would in all probability have requested Ms Fort

to recuse herself.
[10] Ms Knepscheld and Ms
Bakker scored Ms Leeane Winter the highest while Ms Fort scored Ms
Winter in second position and Ms Coetzer
the best candidate for the
position.  Ms Bakker says she and Ms Knepscheld did not agree
with Ms Fort that Ms Coetzer “
was correct for the position
”.
Ms Knepscheld scored Ms Coetzer the worst candidate while Bakker
scored her the joint second worst candidate. On aggregate
Ms Winter
was rated first and Ms Coertzer second. The panel agreed that Ms
Winter was the preferred candidate for the position.
Ms Bakker says
Ms Fort enquired from her, as the previous incumbent for the
position, if there was sufficient work to divide the
responsibilities
into two to which she responded affirmatively. Ms Fort requested Ms
Bakker to document the roles and responsibilities
attendant to the
position which Bakker did on 13 August 2012, almost two weeks later.
[11] The panel discussed
Ms Winter’s relevant technical skills. During the deliberations
Ms Fort mentioned that Ms Coetzer
displayed better people management
skills and said “
it would be nice if she could appoint both
of them”
. Ms Knepscheld advised Ms Fort that there was only
one position to fill and that if she was interested in appointing Ms
Coetzer
she would have to seek the approval of Mr Themba Koza, the
Executive Manager. Ms Fort informed them that she would do so. Ms
Fort
informed Ms Knepscheld at a later stage that she obtained the
approval from Mr Koza to effect the appointment of Ms Coetzer. Ms

Winter and Ms Coetzer were both appointed on 01 September 2012 as the
document control officers.
[12] According to Mr
Songongo there is no rule which prohibits the recruiting line
managers or those employees who had submitted
CVs for consideration
by CDC from forming part of the interviewing panel. However, a
declaration of interest should be made. Mr
Songongo further explained
that the convention had always been to obtain the approval from the
Executive Manager of a requesting
unit, in this case Mr Koza, with
regard to the vacant positions that needed to be filled arising
either at the inception, during
or at the end of the interviews.
Subsequent to the approval the unit line manager would request HR to
assist with the filling of
the vacancy. It was immaterial whether
this was a contract or permanent position. This much was confirmed by
Mr Zuko Mapoma, the
Executive Manager Corporate Services, who
intimated that in the event of a need arising to appoint a candidate
in the position
not in the staff establishment or staff structure the
authority to do so rested with the Business Unit Executive Manager in
respect
of the Business Unit concerned and a programme director if it
related to a programme. He would then “
sign off the actual
appointment when that approval and authorization has been obtained
from the Executive Manager.”
[13] Mr Koza testified
that he delegated the authority of recruitment within SHEQ to Ms Fort
to follow the CDC processes but she
is supposed to engage him on the
candidate(s) to be appointed and they both had to reach an agreement.
He conceded that the problem
was as identified by the CEO in his
e-mail dated 18 July 2013 wherein he states “
It has been
brought to our attention that there may be systemic abuse of
authority that, in good faith, has been delegated to levels
below
EM’s regarding recruitment and appointment of personnel to the
CDC.
” He went on to say that the systemic abuse of
authority referred to by the CEO was not with reference to SHEQ.
[14] Mr Koza maintained
that, where one position was advertised and the need to appoint a
second candidate arose, then there ought
to have been a discussion
with various role players. In this case the discussion would take
place with the programme director if
the position was going to
support a particular programme, the Executive Manager of operations,
the HR Manager, or the Executive
Manager of corporate services to
determine whether there was a need to increase the headcount and to
seek the necessary approval.
If the services to be rendered by the
incumbent was under a programme, the programme director, the Finance
and HR Department would
have to be consulted.
[15] The document control
officer would have to do work for both the Industrial Development
Zone (IDZ) and for the programme. Mr
Koza expected Ms Fort, with
regard to employing Ms Coetzer in a position that did not exist, to
have brought it to his attention
and to follow due process. In that
way, Koza says, he would have engaged with the CEO of CDC for the
approval of the position which
would have to be sanctioned by the
Board of CDC. He went on to say that the delegation of headcount from
the CEO to operation rested
with the Executive Manager.  Even if
the budget was sufficient to employ two people Ms Fort still required
the approval of
the Executive Manager. Mr Koza says he is not aware
of any delegation given to Ms Fort on these aspects. He categorically
disputed
having had any discussion with Ms Fort in which the latter
informed him of her intention to appoint two candidates in the
document
control position.
[16] Mr Koza became aware
of the two appointments in issue in July 2013 when he was interviewed
during the course of the investigation
pertaining to this case.  To
the contrary, Ms Fort says she did not require Mr Koza’s
approval to appoint employees
because he had delegated the
recruitment function to her. In light thereof that the appointment of
the two candidates to one position
was a novel “suggestion”
she sought Mr Koza’s advice (not approval) in this manner:
‘
I went up to
his office, stuck my head in and said to him we are finished (with)
the interviews, we have got two candidates that
we like, both of
them, I can afford it, can I hire both, we haven’t done this
before, what do you think of the idea of me
hiring both…and he
said to me if I can afford it, he can’t see any problem, if HR
doesn’t have a problem with
it, he doesn’t have a problem
with it. I then went to Marrisa (Ms Knepscheld) and said to her that
Themba (Mr Koza) agrees
and he can’t see there being an issue;
lets hire both.’
[17] The sequence of
events set out herein under, leading up to the appointment of Mr
Talha Ebrahim at CDC, are largely common cause.
Mr Talha Ebrahim was
introduced to Ms Fort by his brother, Mr Adnaan Ebrahim, at a coffee
shop. As they were exchanging some pleasantries
Mr Talha Ebrahim said
to Ms Fort “O
h you work for CDC, any chance there is a job”.
She responded “
Well we have got an internship programme,
if you give me your CV there are a couple of departments that might
be suitable for you,
sent me your CV and I will see what I can do
.”
[18] On 11 October 2012
Ms Fort sent an e-mail to Mr Ridwaan Davids, a section head of
Vulindlela accommodation which reports to
Operations Business Unit.
The e-mail, to which was attached Mr Talha Ebrahim’s CV, was to
the effect that Ms Fort had a position
for an intern available. It
reads:
‘
Please don’t
go by the CV. Been doing anything and everything. If you have an
opening as a maintenance intern, he’d
really appreciate it. I
feel sorry for him, hopefully an internship will give him a boost of
confidence to enable a more permanent
position within the filed.
Anyway he comes across as bright,
willing and eager so if you find you have the space, please consider
him…
(Ps, I have an intern finishing in
November that I’m not going to replace…so if you want to
utilize that spot…1
st
come first served…lol)’
[19] Mr Davids informed
Ms Fort that he would take an intern provided everyone agreed and due
process was followed. Ms Fort informed
him that Mr Koza was satisfied
with the transfer of an intern. She requested Mr Davids to obtain few
more CVs, add Mr Talha Ebrahim’s
CV to the pile, and shortlist
the candidates for interviews.
[20] On 18 October 2012
Mr Davids received a further email from Ms Fort which reads: “
Hi.
I am being stalked what’s happening with the intern
interviews?”
Davids says he expressed his
reservations pertaining to Mr Talha Ebrahim’s CV because he had
no maintenance experience
and did not possess the requisite
qualification (a degree). Ms Fort’s reply to Mr Davids was that
the candidate “
..doesn’t need to have maintenance
experience as none of the interns are expected to have work
experience…”
[21]
On 30 October 2012 Ms Haroledene Labercensie
[2]
of the HR Department forwarded an e-mail to Mr Davids which was
copied  to Ms Fort advising them that HR was unable to secure

additional CVs. Ms Fort replied to the e-mail as follows: “
Can
we not just interview the one candidate then? If he is suitable then
we can move with hiring?”
Ms
Labercensie set up the interviews.  The panel consisting of Ms
Fort, Ms Labercensie and Mr Davids thereupon interviewed
Mr Talha
Ebrahim. Ms Fort did not disclose that she had any relationship with
Mr Talha Ebrahim who was employed on 05 November
2012.  Mr Koza
raised a concern regarding the interview of only one individual in
the circumstances where there had been “
a
pool of people looking for work
”.
[22]
On 28
May
2013, several months following the appointment of Ms Coetzer and Mr
Talha Ebrahim, Ms Fort reported to Mr Sibusiso Sibandze,
CDC’s
Unit Head for Customs, Logistics and Security, that she had recently
received an e-mail from an unknown source
[3]
in which various allegations were made, including the allegation that
Mr Adnaan Ebrahim and Ms Coetzer were in a romantic relationship
and
that they had used Ms Fort to commit fraud against CDC. Ms Fort
sought the assistance of Mr Sibandze to establish whether the

allegations were true. She revealed to Mr Sibandze that she was
involved in a romantic relationship with Mr Adnaan Ebrahim and
were
contemplating getting married. She further told him that she met Ms
Coetzer through Mr Adnaan Ebrahim and had been introduced
to her as
Mr Adnaan Ebrahim’s cousin. Weeks later, Ms Fort requested Mr
Sibandze to stop the investigation as the issues
had been resolved
within the family unit and that the likely author of the e-mail was
Mr Talha Ebrahim, who was upset that Ms Coetzer
was employed at a
higher level than him.
[23] Mr Sibandze
nevertheless appointed Mr Karl Edwards, a loss control consultant, to
carry out the investigative work for CDC.
Mr Edwards interviewed Ms
Fort on 03 June 2013, made some contemporaneous notes and provided
CDC with a report on 05 June 2013.
When the interview was carried out
there was no pending investigation against Ms Fort regarding her
potential involvement in the
irregularities relating to the
appointments of Ms Coetzer and Mr Talha Ebrahim. According to Mr
Edwards Ms Fort stated voluntarily
that:
23.1
She had been in a relationship with Mr Adnaan Ebrahim for
approximately a year after meeting him online while
she was looking
for a partner, which meant that the relationship commenced during
mid-2012.  Mr Edwards did not enquire on
the nature of this
relationship or what type of a partnership Ms Fort had been looking
for. He went on to say “
According to Jacqui [Ms Fort]….she
wants a family relationship, she wants a husband to look after, she
wants security of,
you know, having a relationship that works, she
gave me the impression that Adnaan was the person that was going to
bring that
about.”
He further says Ms Fort’s
expectation was that the relationship would lead to a marriage.
23.2
She regularly visited Mr Adnaan Ebrahim at his flat, No: 2 Doria
Court, Fourth Avenue, New Park, Port Elizabeth,
who shared this
accommodation with his cousin, Ms Coetzer.
23.3
She confronted Mr Adnaan Ebrahim with the allegation as captured in
the e-mail from the unknown source. Mr
Adnaan Ebrahim was furious but
did not provide any explanation to the allegation that he was married
to Ms Coetzer.
23.4
She met Ms Coetzer at the flat. She was then working for a firm of
Attorneys and had complained about her
“miserably low salary”.
23.5
She suggested to Ms Coetzer to submit her CV to CDC as there was a
vacancy advertised. Ms Coetzer did so
and was appointed on merit.
23.6
She suggested to Mr Talha Ebrahim (Mr Adnaan Ebrahim’s bother)
that he apply for an intern position
at CDC. He did so and was
appointed on merit.
[24]
At the early stages of the investigation, when the octave tone
started to rise, Mr Alistair Gajjar from the Internal Audit
of CDC
interviewed Ms Fort in connection with an anonymous tip-off which
suggested the commission of some irregularities in the
appointment of
Ms Coetzer as a document control officer
[4]
.
Ms Fort informed Mr Gajjar that she met Ms Coetzer “
outside
of work through a friend”;
that
“
Through
meeting her and talking, I got an understanding of what she does;”
and
further that, “
And
I said to her that I am looking for a Doc Control person-she must
give me her CV…and I will add it to the pile. She gave
me her
CV. She was shortlisted
.”
[25] Ms Fort says she
lied to Mr Edwards insofar as she told him that she met Mr Adnaan
Ebrahim online and denied having told him
that her romantic
relationship with Mr Adnaan Ebrahim started in mid-2012. She says
that she met Mr Adnaan Ebrahim through her
former husband in June
2012 (before the appointment of Ms Coetzer and Mr Talha Ebrahim). To
dispel any notion that she had been
involved in a romantic
relationship with Mr Adnaan Ebrahim she produced copies of the
e-mails that were exchanged between herself
and her former husband
from 18 June 2012 to 25 June 2012. The e-mails show that her former
husband had requested her to provide
advice on an environmental
matter to an acquaintance of his, Mr Adnaan Ebrahim. At that stage,
she says, she was dating Mr Alphonsis
Du Plessis who she attended a
rugby match with on 23 June 2012 and was accompanied by some of her
colleagues from CDC.
[26] Around June 2012 Ms
Fort assisted Mr Adnaan Ebrahim whose licence to restart a service
station had been turned down and had
filed an appeal through
attorneys JR Bester & Associates; this is when her “business
(professional) relationship”
with Mr Adnaan Ebrahim commenced.
Ms Coetzer was at that stage also in the employ of these
attorneys. Ms Fort would drive
with Mr Adnaan Ebrahim during the
lunch breaks to meet his lawyers and waited at the reception while
Adnaan was in consultation
with his attorneys. She observed Ms
Coetzer interacting with the clients and members of the public. She
was impressed with the
way she handled irate patrons. She gave Adnaan
her business card and said “
listen next time you are in
there, if that woman is interested, ask her to send her CV to see if
she would be interested in maybe
applying for a job at the CDC”
.
[27] Ms Fort says that
during the interviews for the position of a document control officer
she disclosed to her fellow panellists
that she saw Ms Coetzer twice
at her workplace; she liked her; and requested her to forward her CV.
She suggested to the panel
that both Ms Winter and Coetzer be
employed because it was a contractual position and funding was
available for both and would
have no impact on the headcount.
[28] Ms Fort maintained
that she commenced her romantic relationship with Mr Adnaan Ebrahim
at the end of March 2013, long after
Ms Coetzer and Mr Talha Ebrahim
had been appointed into the services of CDC in September and November
2012, respectively.
The arbitration
proceedings
[29] The commissioner was
enjoined to determine whether the dismissal of Ms Fort was
substantively fair and the appropriateness
of sanction meted out. In
her analysis of the evidence the commissioner was of the view that:
‘
At the
centre of all the events is the alleged romantic relationship between
the applicant (Ms Fort) and Mr Adnaan Muhammed (Ebrahim),
which
relationship had to have started up so rapidly and intensely to have
influenced the applicant, an employee of nine years
with a clean
record, to manipulate the appointment process in order to secure low
level appointments for two of his family members.
I am not persuaded
that this was indeed the case’.
[30] The commissioner
perfunctorily determined that there was no romantic relationship
between Ms Fort and Mr Adnaan Ebrahim. She
was unpersuaded that Ms
Fort manipulated the appointment process and reasoned that in the
absence of a romantic relationship between
Ms Fort and Mr Adnaan
Ebrahim, at the relevant time of the appointments, the possibility of
a conflict of interest in charges two
and five was substantially
“
watered down
”.
[31] With regard to Ms
Fort’s participation in the interviews the commissioner noted
that none of her fellow panellists pointed
out that they felt
uncomfortable with her presence and therefore she had no reason to
conclude that Ms Fort benefited in any manner
in the appointments of
the two employees. She was of the view that CDC failed to prove the
existence of any rule that prohibited
the submission of CVs by the
members of the panel.
[32] The commissioner
held that Ms Coetzer’s appointment into the duplicated position
of a document control officer was warranted.
She further held the
view that Ms Coetzer was a suitable candidate whose skills would
complement those of the other appointee,
Ms Winter. She found the
alleged verbal approval, that Ms Fort testified she obtained from Mr
Koza, to have been sufficient and
that it was improbable that Ms Fort
had not discussed the appointment of the two document control
officers with Mr Koza. In any
event, she held, the HR Department did
not question the approval which Ms Fort said she obtained from Mr
Koza. On the contrary,
she found, Ms Coetzer was appointed on the
strength of it.
[33] The commissioner
further found that in mid-2012 the recruitment process at CDC was not
stricto sensu
conducted in terms of the rules. Ms Fort was
left to interact with the programme director to determine the
availability of funds
and if a genuine need was established to
recruit employees within SHEQ. She held that Mr Koza delegated the
authority of external
recruitment within SHEQ to Ms Fort. She noted
that Mr Koza took issue with the headcount and the fact that an
increase in staff
had to be approved by the Board. Notwithstanding
this the commissioner concluded that the appointment of the two
document control
officers on fixed term contracts that ran parallel
to the period of an external programme could not add to CDC’s
headcount
because the employees’ contracts of employment
terminated upon the expiry of the contract with the programme.
[34] The commissioner was
further of the view that Mr Koza demonstrated some doubt on the
aspect of whether the recruitment process
allowed for the appointment
of two candidates in an instance where only one vacancy had been
advertised. She was of the view that
if the Executive Manager was
uncertain on the process to be followed, in respect of the novel
situation, it could not have been
expected of his subordinate, Ms
Fort, to be conversant with it.
[35] The commissioner
found no dishonesty in the manner in which Ms Fort obtained and
submitted the CV of Mr Talha Ebrahim or any
conflict of interest in
circumstances in which she served as a panellist in Mr Talha
Ebrahim’s interview.
[36] In the overall the
commissioner concluded:
‘’
72.
Central to the charges against the applicant [Ms Fort] was an alleged
conflict of interest, which
is based on the principle that an
employee has to maintain good faith and further the interest of her
employer. The employee is
therefore required not to compete with her
employer or to obtain additional employment where a conflict of
interest may arise.
A conflict of interest exists when an employee
finds herself in a position where her personal interest are at odds
with her employer’s,
and may include direct competition with
the employer or making secret profits. A conflict of interest can
also include a situation
where an employee has an interest in an
entity that has dealings with the employer.
73.
I cannot find anything in the applicant’s conduct that
constitutes a conflict of interest
as defined above. If she should
have been found guilty of any allegations, it is not this. The above
analysis concludes that I
find the applicant to be not guilty of the
serious charges of gross misconduct, conflict of interest and gross
dishonesty that
were levelled against her. I therefore find the
dismissal of the applicant to be substantively unfair.’
[37] The commissioner
also found no sufficient evidence demonstrating that the trust
relationship had irretrievably broken down.
She determined that
reinstatement was not impracticable as Ms Fort had already moved to a
different business unit prior to her
dismissal and no longer
reporting to Koza. She reinstated her retrospectively on same terms
and conditions applicable prior to
her dismissal.
The proceedings before
the Labour Court
[38] The Court a quo
adopted an independent assessment of the evidence and determined the
probabilities in the light of the material
before it. In particular,
it analysed the evidence in relation to the receipt of the second CV
and the events leading thereto.
The Court noted that Ms Fort’s
evidence, on how she met Ms Coetzer and how the second CV was
procured, was contradictory.
At arbitration Ms Fort’s evidence
was that she only observed Ms Coetzer working at a firm of attorneys
in the reception and
had not spoken to her before receiving her CV.
This piece of evidence, the Court held, was contrary to at least the
following three
versions:
38.1    Ms
Fort told Mr Sibandze that she was introduced to Ms Coetzer as Mr
Adnaan Ebrahim’s cousin and that
Ms Coetzer had enquired about
a job at CDC and applied.
38.2    Ms
Fort informed Mr Gajjar that she met Coetzer “
Outside work
through a friend…Through meeting her and talking, I got an
understanding of what she does…And I said
to her that I am
looking for a doc control person-she must give me her CV.” “…I
said to her, I said: ‘listen
we didn’t get anybody
internally for this position that I am looking for. Don’t you
want to give me your CV and I will
add it to the pile.’
38.3
According to Mr Edwards Ms Fort told him that she met Ms Coetzer at
her flat. Ms Coetzer’s CV was submitted
following her
discussions with Ms Fort.
[39] The Court a quo was
of the view that the commissioner did not apply herself to the
aforesaid inconsistent versions. The Court
was inclined towards the
view that Ms Fort’s version was false and that she probably
interacted directly and substantially
with Ms Coetzer in procuring
the first CV.
[40] The Court then
examined   the question whether Ms Fort had any dealings
with Ms Coetzer in procuring her second CV.
It found her version to
have been problematic. This was so because at arbitration her case
was that she had no dealings with Ms
Coetzer whatsoever over the
issue and had procured the second CV through Mr Adnaan Ebrahim by
asking him to request Ms Coetzer
to send her CV. This version was
held to be clearly contrived and inconsistent with the forthright
approach that Ms Fort adopted
to the possible recruitment of Ms
Coetzer as relayed to Mr Gajjar. It further held that although the
commissioner had found that
Ms Fort’s version was
contradictory, on the question whether she spoke to Ms Coetzer about
the document control position,
she did not consider the impact of the
inconsistency on Ms Fort’s overall credibility as a witness.
[41] The Court then had
regard to the aspect of the procurement of the second CV by Ms Fort
from Coetzer after the first CV had
already been submitted. It found
that Ms Fort’s evidence was “
a ruse aimed legitimising
the calling of a second and improved CV”
insofar as she
testified to the effect that she mistakenly thought that she had
forgotten to send the CV to Mr Songongo and therefore
asked Mr Adnaan
Ebrahim to request Ms Coetzer to re-send the CV. The Court further
found it improbable that Ms Fort would have
forgotten that she had
sent the first CV to Mr Songongo when she had procured it, read it
and then forwarded it to Mr Songongo
by e-mail. The Court remarked
that it remained unexplained why Ms Fort did not again dispatch the
first CV to Mr Songongo from
her e-mail box when she had received it
by e-mail from Ms Coetzer. In any event, the Court reasoned, Mr
Songongo reminded Ms Fort
on numerous occasions between 13 and 25
July 2012 to submit the CV that she told him she wished to submit.
The message allegedly
sent via Mr Adnaan Ebrahim to Ms Coetzer to
re-send the CV resulted in the latter completely adapted the CV. The
Court was of the
view that it was a serious misdirection on the part
of the commissioner not to have brought her mind to bear on Ms Fort’s

questionable explanation regarding the procurement of the second CV.
[42] The Court then dealt
with the issue of whether Ms Fort assisted Ms Coetzer in compiling
the second CV. It rejected, as a recent
fabrication, Ms Fort’s
version that she was told by Ms Coetzer that the latter obtained
advice from an HR official on the
nature of the job Ms Coetzer was
applying for. The Court was of the view that for Ms Coetzer to
produce a tailor-made CV of that
kind she must have had internal
assistance of someone very knowledgeable. The Court held that the
spectre of Ms Fort herself having
given that advice on the second CV
looms large. Ms Fort’s evidence that she barely looked at the
second CV and simply forwarded
it to Mr Songongo and Ms Bakker by
e-mail was probably untrue. It found further that Ms Fort failed to
discharge the evidentiary
burden to explain how the second CV came
about and what her involvement was in relation thereto.
[43] The Court concluded
that Ms Fort was involved in assisting Ms Coetzer in compiling the
second CV and thus enhanced it. The
commissioner’s finding that
it was far more probable that Ms Fort did inform Ms Coetzer about the
vacancy and that there
was nothing untoward in her conduct was a
product of the series of errors and misdirections on the
commissioner’s part. The
Court reasoned that, but for these
errors and misdirections, the commissioner would probably have found
that Ms Fort was guilty
of enhancing Ms Coetzer’s application.
[44] On a conspectus of
the evidence, the Court a quo found the commissioner’s decision
to have been “obviously wrong”
and falling outside a
range of reasonable decisions. It concluded that Ms Fort deviously
failed to disclose that she was instrumental
in embellishing Ms
Coetzer’s CV, otherwise she would inevitably have been required
to recuse herself. She therefore placed
herself in a conflict of
interest situation with her employer. What aggravated the
transgression, the Court found, was Ms Fort’s
participation in
the interview and scoring Ms Coetzer the best candidate. She then
devised the stratagem of appointing two candidates
for the document
control position which resulted in Ms Coetzer earning a salary four
times higher than what she had been earning
where she worked at JR
Bester & Associates.
[45] The Court a quo
found it unnecessary to determine whether Ms Fort was in a romantic
relationship with Mr Adnaan Ebrahim on
the occasion of the
interviews. However, it accepted that there was a personal connection
between them at the relevant period.
It held that Ms Fort breached
the relationship of trust; she showed no remorse; and went about
presenting disingenuous defences
at both her disciplinary enquiry and
the arbitration. Accordingly, the Court set aside the award and
replaced it with an order
that the dismissal of Ms Fort was
substantively fair.
The grounds of appeal
[46] The grounds of
appeal boil down to this. That the Court a quo erred:
46.1    In
finding that the arbitration award represented an outcome that a
reasonable decision maker could not have reached
on the material
before the commissioner;
46.2    In
finding that the commissioner had failed to determine the question of
Ms Fort’s credibility and
thereby interfering with her factual
and credibility findings;
46.3    In
finding that Ms Fort’s version was not credible. The Court
ought to have found Ms Fort’s version
credible in all material
respects;
46.4    In
its application of the review principles;
46.5    In
concluding that the commissioner should have found that Ms Fort
misconducted herself by enhancing Ms Coetzer’s
CV and/or in
failing to disclose the full extent of her interaction with Ms
Coetzer to the interviewing panel;
46.6    In
concluding that Ms Fort had failed to adequately explain her
interaction with Ms Coetzer prior to the
interview;
46.7    In
concluding that Ms Fort rendered herself guilty of a serious
misconduct and that her dismissal was substantively
fair;
46.8    In
upholding the application for review with costs in the circumstances
where the consideration of the law
and fairness dictated otherwise.
Appellant’s
argument
[47] Mr Le Roux, for Ms
Fort, contended that the Court a quo ought to have been slow to
interfere with the credibility findings
made by the commissioner
because she arrived at those findings with the benefit of her
observation and with reference to the quality
of the witnesses’
evidence and the probabilities. Having decided to revisit the
commissioner’s credibility findings,
it was contended, the
Court did so in a manner that incorrectly emphasised those aspects
negative to Ms Fort’s credibility
while not sufficiently taking
into account those aspects that were strongly supportive of the
commissioner’s conclusions.
[48] Mr Le Roux further
argued that if Ms Fort had known Ms Coetzer and Mr Adnaan Ebrahim, in
the manner suggested by CDC, prior
to the appointment of Ms Coetzer
into the services of CDC, it would not have been necessary for Mr
Adnaan Ebrahim to be placed
in contact with Ms Fort through the
latter’s former husband. He contended that there was no direct
or even circumstantial
evidence of any relationship between Ms Fort
and Ms Coetzer and that the Court a quo inferred the existence of
that relationship
purely from the limited contradictions in Ms Fort’s
version; the contradictions do not serve to establish CDC’s
case.
DCD’s argument
[49] Mr Fourie, for CDC,
countered that the commissioner sought to justify her conclusion that
Ms Fort’s version of events
was to be preferred over CDC’s
despite material contradictions in the various versions given by Ms
Fort; the overwhelming
weight of evidence presented by CDC; and the
overall probabilities. He further contended that the commissioner
attacked the evidence
of various witnesses called by CDC which attack
was not the product of a proper reasoning process. The commissioner’s
conclusion
that Ms Fort was not guilty of any misconduct is not one
that a reasonable decision maker could have reached on the material
before
her. What was further fatal to the award, it was argued, was
the lack of a properly reasoned determination, fairly reflecting the

evidence presented. Resultantly, CDC was subjected to an unfair
procedure and deprived of a fair hearing.
Evaluation
[50]
The test laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[5]
and
restated in several decisions of this Court and the Supreme Court of
Appeal
is
whether
the
decision reached by the commissioner is one that a reasonable
decision-maker should not reach.
[6]
In
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[7]
the
SCA pronounced:
‘
[13]
The distinction between review and appeal, which the
Constitutional Court stressed is to be preserved, is
therefore
clearer in the case of the
Sidumo
test.
And while the evidence must necessarily be scrutinized to determine
whether the outcome was reasonable, the reviewing
court must always
be alert to remind itself that it must avoid
'judicial overzealousness in setting aside administrative
decisions that do not coincide with the judge's own opinions'. The
LAC subsequently stressed that the test 'is a stringent
[one] that
will ensure that … awards are not lightly interfered with' and
that its emphasis is on the result of the case
rather than the
reasons for arriving at that result.
The
Sidumo
test
will, however, justify setting aside an award on review if the
decision is 'entirely disconnected with the evidence' or
is
'unsupported by any evidence' and involves speculation by the
commissioner
.’
(Own emphasis/ footnotes omitted)
[51]
In this case, the challenge focuses the evaluation of the evidence by
the commissioner. It must immediately be said that there
is no merit
in the argument that the Court a quo was conducting a process of
reverse reasoning. In the end, t
he
conclusion reached by a trier of fact must account for all the
evidence presented at the trial and by parity of reasoning during
the
arbitration. In
S
v Trainor
[8]
Navsa
JA provided the following useful guide and principle with regard to
the evaluation of evidence:
‘
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered. In
considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must corroborative evidence,
if any.
Evidence, of course, must be evaluated against the
onus
on
any particular issue or in respect of the case in its entirety. The
compartmentalised and fragmented approach…is
illogical and
wrong.’
[52]
The SCA held that an assessment of the evidence based on demeanor,
without regard to the wider probabilities, constitutes a

misdirection
[9]
. In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[10]
the
Constitutional Court pronounced that the advantages which the trial
court enjoys should not be over-emphasised 'lest the appellant's

right of appeal becomes illusory'. The truthfulness or untruthfulness
of a witness can rarely be determined by demeanor alone without

regard to other factors including the broader probabilities. In that
case the Court applied the principles enunciated in
R
v Dhlumayo and Another
[11]
in
particular the following instructive guidelines:
'10. There may
be a misdirection on fact by the trial Judge where the reasons are
either on their face unsatisfactory or where the
record shows them to
be such; there may be such a misdirection also where, though the
reasons as far as they go are satisfactory,
he is shown to have
overlooked other facts or probabilities.
11. The
appellate Court is then at large to disregard his findings on fact,
even   though based on credibility, in
whole or in
part according to the  nature of the misdirection and the
circumstances of the particular case, and so come
to its own
conclusion on the matter.’
(see
also the Judgment of this Court in
National
Union of Mineworkers & Another v Commission for Conciliation,
Mediation & Arbitration & Others
[12]
referred
to by the Court a quo in its judgment.)
[53]
Central to this appeal is the determination of the question whether
the decision by the commissioner fell within the band of
a decision
made by a reasonable decision maker. In my view, this question
involves a consideration of the following three inextricably
linked
key issues. First, whether Ms Fort had any romantic (or personal)
relationship with Mr Adnaan Ebrahim and knew Ms Coetzer
and Mr Talha
Ebrahim at the relevant period of their recruitment and appointment
into the services of CDC. Second, whether Ms Fort’s

participation and/or actions during the recruitment process and the
employment of the two employees were permeated by an underlying

conflict of interest on her part to the detriment of CDC’s
interest. Third, if it is proven that Ms Fort advanced her own

interest and/or those of the employees concerned, the impact of her
conduct on the employment relationship should be evaluated.
In
answering these questions it behoves this Court to undertake a
careful evaluation of the credibility of witnesses and the whole
evidence
against the underlying probabilities
to
which I now turn
.
The
question whether Ms Fort had any romantic relationship with Mr Adnaan
Ebrahim and knew
Ms
Coetzer and Mr Talha Ebrahim at the relevant period of their
recruitment and appointment into the services of CDC
[54] As already alluded
to, in support of its case that Ms Fort was extremely compromised
and/or conflicted insofar as she took
part in the appointments of Ms
Coetzer and Mr Talha Ebrahim, CDC’s contention was that Ms Fort
was involved in a romantic
relationship with Mr Adnaan Ebrahim who
was Ms Coetzer’s cousin and Mr Talha Ebrahim’s brother.
It was found by the
chairperson of the disciplinary enquiry that
preceded this matter that such a romantic relationship was in
existence at the relevant
period covering the charges. During the
review proceedings and in this appeal the argument was developed
further that the timing
of the romantic relationship between Ms Fort
and Mr Adnaan Ebrahim was not dispositive of the review or appeal
because it was only
relevant insofar as it affected Ms Fort’s
credibility as a witness and demonstrated the absurdity in the
commissioner’s
unqualified acceptance of her evidence.
[55]
Mr
Le Roux argued that the factual conclusion urged upon the
commissioner as being foundational to CDC’s case, namely the

alleged romantic relationship, was not the factual finding for which
the CDC contended during its argument in the Labour Court.
It had
simply mutated because, before the commissioner, the alleged
impropriety was not posited as having arisen from any direct

relationship between Ms Fort and the appointees but on the romantic
relationship she had with Mr Adnaan Ebrahim. Mr Le Roux contended

that CDC ought not to have succeeded in the Labour Court on the
strength of a factual proposition that it had not advanced in the

first place.
[56] The commissioner
cursorily found Ms Fort’s evidence convincing that when she was
introduced to Mr Adnaan Ebrahim by her
former husband she was
involved in a romantic relationship with Mr Du Plessis. The
commissioner was of the view that it was unlikely
that Ms Fort will
attend a work function (the rugby match) and introduce Mr Du Plessis
to her colleagues as her companion. According
to the commissioner
this made Ms Fort’s version, that her relationship with Mr
Adnaan Ebrahim was professional, probable.
What appears to be
significant, which the commissioner did not take heed of, is that Ms
Fort’s relationship with Mr Du Plessis
ended a week after the
rugby match and few days after she had met Mr Adnaan Ebrahim.
[57]
Ms
Fort’s credibility as a witness came under close scrutiny with
regard to the time she commenced her romantic relationship
with
Adnaan.
It
is to be borne in mind that the evidence by Mr Edwards was that Ms
Fort informed him that she had already been dating Adnaan
for
approximately a year (that is since mid-2012) after having met him
online. Ms Fort admitted to having lied to Mr Edwards on
this aspect.
This concession should have signalled to the commissioner to be
careful in the assessment of Ms Fort’s account
on the
chronology of events. It was also Mr Sibandze’s uncontested
evidence that in late May 2013 Ms Fort told him that she
was involved
in a romantic relationship with Mr Adnaan Ebrahim which had
progressed to the point that they discussed wedding plans.
[58] When Ms Fort had a
discussion with Mr Edwards and Mr Sibandze there was no suspicion of
any wrongdoing on Ms Fort’s part
or pending investigation
against her. She freely volunteered the stated information to them.
When the accusations emerged with
regard to her alleged inappropriate
conduct in the appointment of Mr Adnaan Embrahim’s relatives
during 2012 Ms Fort made
an about turn by distancing herself from any
prior connection she had with Mr Adnaan Ebrahim. This she inventively
did so as to
exculpate herself from any alleged misconduct by
claiming that their romantic relationship commenced during March
2013.
[59]
Ms
Fort was an unsatisfactory witness on the aspect of how she met Ms
Coetzer. She presented various contradictory versions:
59.1
Firstly, during her interview with Mr Edwards, she informed him that
she met Ms Coetzer at a flat which Ms
Coetzer shared with Mr Adnaan
Ebrahim.
At
that time Ms Coetzer was working for the firm of attorneys mentioned
and had complained about her “miserably low salary”.
She
suggested to Ms Coetzer to submit her CV to CDC.
59.2
Secondly, a
s
already alluded to, in the early stages of the investigation
concerning Ms Fort’s potential misconduct, she told Mr Gajjar

that she met Ms Coetzee outside the work situation through a friend
(Adnaan). This must have been around June 2012 because Ms Fort

intimated that her “business relationship” with Mr Adnaan
Ebrahim commenced then.
Ms
Fort could not explain why she told Mr Gajjar that she met Ms Coetzer
under the said circumstances through a friend and that
in “
talking
”
she got to know what she does for a living. She also told Gajjar that
she requested Ms Coetzer to give her a copy of her
CV because she
sought to recruit a document control officer. This version completely
negates her evidence at arbitration. For instance
at arbitration she
said that she had never spoken to Coetzer before the submission of
her CV. On further probing during cross-examination
regarding her
discussions with Gajjar she went on to suggest that by “
talking
”
to Ms Coetzer she meant that she gathered from Ms Coetzer’s
interaction with clients what her work entailed; she did
not know
whether job description related to administration, reception work or
filling. Ms Fort’s threadbare explanation was
unhelpful to her
course and at times stretched credulity beyond limit. She ended up
dismissing the interview she had with Mr Cajjar
as casual and a waste
of time. As she puts it “
I
didn’t think CDC was taking the issue seriously…”
,
this despite the fact that she was informed by Gajjar at the
commencement of the interview that CDC had approached internal audit

to investigate some irregularities into the appointment of Ms
Coetzer.
59.3
Thirdly, Ms Fort and other employees of CDC were requested by Mr
Mapoma, Executive Manager Corporate Services,
during July 2013 to
respond to certain questions concerning their involvement in the
appointment of Ms Coetzer. On 18 July 2013
Ms Fort provided a
statement which reads in part:
‘
Other than
being present at her place of employment on 2 occasions which availed
me of the opportunity to observe her interactions
with clients,
I
had had no conversation or interactions with the said person prior to
the interviews
except to request that she sent me her CV.”
[60]
The commissioner did not apply her mind at all to these glaring
contradictions. S
he
preferred Ms Fort’s version of when her relationship with Mr
Adnaan Ebrahim commenced without considering all the relevant
factors
when weighing up the irreconcilable versions. For instance, when
rejecting Mr Edward’s evidence she was of the view
that he
failed to pay proper attention to the timeline. However, the
commissioner failed to recognize that Mr Edwards’ report

incorporated details that could have only been provided by Ms Fort;
for example, the duration of her relationship with Mr Adnaan
Ebrahim;
that Ms Coetzer was employed at the named law firm and complained
about her “
miserably
low salary.”
The commissioner in addition did not take into account the
unchallenged evidence by Mr Sibandze that in May 2013 Ms Fort told
him that her romantic relationship with Mr Adnaan Ebrahim stood on
the cusp of marriage.
[61]
Ms Fort’s evidence to the effect that she observed Ms Coetzer
at work and requested Mr Adnaan Ebrahim to ask Ms Coetzer
to bring
her CV is fraught with difficulty. She
claimed
that at that stage she was not aware that Ms Coetzer and Mr Adnaan
Ebrahim were cousins. It is troubling that Mr Adnaan
Ebrahim would
not have informed her, at the time of her request for the submission
of the CV, that Ms Coetzer was his cousin. The
purported “business
(professional) relationship” (as found by the commissioner to
have existed between Ms Fort and
Mr Adnaan Ebrahim) is also
questionable. If Ms Fort was Mr Adnaan Ebrahim’s advisor on an
environment issue, as she professed,
it is strange that she would
wait in the reception while Adnaan was consulting with his attorneys
on the same issue that Fort was
rendering advice on. In my view, this
version was concocted to fortify Ms Fort’s case that she
observed Ms Coetzer at work.
[62]
On the probabilities Ms Fort attended meetings with Adnaan at his
firm of attorneys and took part in the consultation process.
Mr
Adnaan Ebrahim introduced her to his cousin, Ms Coetzer. Ms Fort and
Coetzer came to know each other through “
talking
”.
In that manner
she
requested Ms Coetzer to provide a copy of her CV.
[63]
The Labour Court found it unnecessary to determine whether Ms Fort
and Mr Adnaan Ebrahim were lovers.  The Court was of
the view
that from 27 June 2012 onwards Ms Fort appears to have struck up at
least a friendship or sorts with Mr Adnaan Ebrahim.
It found that
there was a personal connection between the two. To this end, I am
satisfied that the Court a quo’s conclusion
cannot be faulted.
Whether Ms Fort’s
participation or actions in the recruitment and employment of Ms
Coetzer and Mr Talha Ebrahim were permeated
by an underlying conflict
of interest to the detriment of CDC
[64]
It
was a common occurrence at CDC for employees to submit the CVs of job
seekers for consideration and possible appointment by CDC.
There was
also nothing unusual about submitting the candidates CVs late. It was
also not in dispute that the employees who submitted
the CVs of job
applicants were not disqualified from active participation in the
interviews as panellists where the job applicants,
on whose behalf
they submitted the CVs, were to be interviewed. However, disclosure
by a panellist of prior knowledge and personal
relationship with the
candidate or any possible conflict of interest was obligatory.
[65] The Court a quo
dealt at length with the two CVs submitted by Ms Coetzer at CDC to
show that it was probable that Ms Fort enhanced
Ms Coetzer’s CV
to increase her chances of securing the document control position.
[66] The structure of the
second CV submitted after the closing date and the shortlisting
process is different from the first CV
received; the first CV was of
a general nature whereas the second CV had additional roles and
responsibilities which complemented
the document control position. Mr
Songongo intimated that he would have never shortlisted Ms Coetzer
based on the first CV submitted
because the experience captured
therein is more of an administrative and financial nature and not of
relevance to the document
control position. He conceded that it was
normal for job seekers to emphasize their attributes and experience
in relation to the
position they applied for but added that such an
applicant, particularly for the document control position, would have
to had sight
of the advertisement before he/she could adapt his/her
CV.
[67]
The
commissioner was of the view that Ms Fort’s version, insofar as
it was contended that she had spoken to Ms Coetzer prior
to the
submission of the CV, was contradictory. She held that it was
probable that Ms Fort spoke to Ms Coetzer about the vacancy
but that
this was not inappropriate. In her view “
it
is common practice for any applicant to tailor their CV to the
requirements of the position for which they are applying”.
[68] Mr Le Roux argued
that if the Court a quo settled on the version that Ms Fort had
spoken to Ms Coetzer with regard to the second
CV, this took the
matter no further than they did for the commissioner viz that it was
probable that Ms Fort mentioned to Ms Coetzer
that the position
advertised was that of a document control officer. He contended that
therein would lie one ready explanation
for the fact that Ms Coetzer
was able to present a tailor-made CV. Mr Le Roux further argued that
if Ms Fort was intent on advancing
Ms Coetzer’s interest one
would have expected her not to be critical of the second CV by
labelling it “not brilliant”
when she forwarded it by
e-mail to Mr Songongo and Ms Bakker. In my view, the e-mail by Ms
Fort describing the CV as she did must
be read in context. Ms Fort
attempted to support Ms Coetzer in that what she further recorded in
the email was that, in her view,
Ms Coetzer was more suitable to the
position than what the CV sought to portray.
[69]
The aspect of a tailor-made CV brings, once more, into sharp focus Ms
Fort’s credibility as a witness. When asked why
the second CV
captured the document control responsibilities Ms Fort’s
response was that Ms Coetzer called HR to enquire
about the job
description of the position and updated her CV accordingly. Ms Fort’s
evidence at the disciplinary enquiry
was that she had no idea how Ms
Coetzer obtained the information that made it possible for her to
adapt her CV. When confronted
on this aspect at arbitration she said
that after her disciplinary enquiry she gleaned this from Ms Coetzer.
What is remarkable
is that it was not put to Mr Songongo that Ms
Coetzer obtained advice from HR which would have enabled her to adapt
her CV. It
is improbable that Ms Coetzer would have called HR to
enquire about the position which was only internally advertised. In
any event,
Ms Coetzer’s own ipse dixit was to the effect that
she “
did
not respond to any particular position but rather to a request from
Ms Fort to forward my CV”
[13]
.
It is important to remember that Ms Fort told Mr Gajjar that she
informed Ms Coetzer that she was looking for a document control

officer and must provide her CV. This piece of evidence also
contradicted her evidence at arbitration.
[70] The commissioner was
right in having concluded that Ms Fort contradicted herself regarding
whether she spoke to Ms Coetzer
about the position and that it was
far more probable that she informed Ms Coetzer about the vacancy.
What the commissioner
did not do, as correctly found by the Court a
quo, was to evaluate the impact of her determination on Ms Fort’s
credibility
and the overall probabilities.
[71] The general quality
of Ms Fort’s evidence in respect of the reason she procured the
second CV after the first CV had
already been submitted was
unsatisfactory. Her evidence was to the effect that on receipt of Ms
Coetzer CV she passed it on to
Mr Songongo. When she received the
interview pack she realized that Ms Coetzer’s CV was not
included. She thought that she
had forgotten to forward it to Mr
Songongo and advised him that it will follow in due course. The Court
a quo was correct in its
observation that Ms Fort’s version on
this score was convoluted in that:
71.1
She could not have forgotten that she sent the CV to Songongo in the
circumstances where she had procured
and read it;
71.2    It
remained unexplained at arbitration why she had not forwarded the CV
to Songongo by e-mail in circumstances
where she had received it by
e-mail from Ms Coetzer;
71.3
Even more troubling was the unchallenged evidence by Mr Songongo that
on more than one occasion between 13
and 25 July 2012 he reminded Ms
Fort to submit the CV she told him she intended to submit. Therefore
there could not have been
any memory lapse.
71.4    It
also remained a mystery that Ms Coetzer, upon being requested to
submit her CV for the second time, did
not submit the same CV she
initially sent to Ms Fort but sent the adapted one.
[72] Clearly, Ms Fort was
at pains to distance herself from any involvement in the enhancement
of Ms Coetzer’s second CV.
At first she testified that she was
under the impression that Ms Coetzer’s first CV and the second
were the same. She asked
Ms Coetzer to resubmit her CV because she
could not find the original one. The probabilities are overwhelming
that Ms Fort had
read the first CV because she requested that it be
retained for a future position in admin or finance. She did not say
that it
be retained for the document control position which at stage
was vacant and had already been advertised internally. When she
received
the second CV she forwarded it to HR for inclusion in the
pack of CVs for the shortlisted candidates in respect of the document

control position. On the probabilities she must have been aware that
the second CV addressed the document control responsibilities.
[73]
One imponderable aspect on the record is how Ms Fort came to be in
possession of the second CV.  The e-mail attachment
[14]
sent by Ms Fort to Mr Songongo on 25 July 2012 is titled “Lyla.docx”.
It appears very odd that a novice job seeker,
who Ms Fort says she
had hardly met, would title her CV “Lyla.docx” to her
prospective employer.
[74] The probable
inferences that could be drawn from my analysis of the evidence are
that:
74.1
Subsequent to the submission of the first by Ms Coetzer to Ms Fort,
the latter communicated with Ms Coetzer
and provided her with
information necessary for her to adjust her CV. This would account
for the delay in forwarding the CV to
the relevant HR officials from
the date the first CV was received on 12 July 2012 to the date when
Ms Fort forwarded the second
CV to Mr Songongo and Ms Bakker on 25
July 2012.
74.2
Prior to the interviews Ms Coetzer had some personal relationship
with Ms Fort which would not have come
into existence had Ms Coetzer
not been introduced to her by Mr Adnaan Ebrahim as his cousin. This
resulted in Ms Fort promoting
Ms Coetzer’s CV as a
justification for the inclusion on the shortlist.
[75] The Court a quo
correctly found that commissioner did not deal with the discrepancies
in Ms Fort’s version and had failed
to undertake the proper
evaluation of the evidence.
[76] Turning now to the
interview itself. Ms Fort perfunctorily disclosed to her fellow
panelist, Ms Knepscheld and Ms Bakker, that
she knew Ms Coetzer
“
through business dealings she had at the firm of attorneys
where Ms Coetzer was working”
. Ms Fort did not disclose any
personal relationship she had with Ms Coetzer. Knepscheld went on to
say that they would have requested
Ms Fort to recuse herself from
participation in the interview in the event that there was a personal
relation between Ms Fort and
Ms Coetzer as this would be unethical
and result in favouritism.
[77] Ms Knepscheld says
that immediately following the appointment of Ms Coetzer she observed
that the interaction between Ms Coetzer
and Ms Fort was more personal
than it was made out to be during the interview. She described their
relationship as having been
“
too close for comfort
.”
[78] The subtle
disclosure Ms Fort made during the interviews to her fellow panelist
demonstrates that she tried to downplay her
interaction with Ms
Coetzer prior to the interview because any more revelation would have
disqualified her from participation in
the interviews.  It is
startling that the commissioner found, without any basis for this,
that “
There is no doubt that the applicant (Ms Fort)
disclosed her prior knowledge of both Ms Coetzer and Mr Mohammed
(Talha) Ebrahim
”.
[79] The manner in which
Ms Winter and Ms Coetzer were appointed to fill one advertised
vacancy of a document control officer is
also beyond the pale. By her
own admission Ms Fort knew before the interviews that the workload
was cumbersome and could not say
why she did not approach the HR
Department to regularize the appointment of the two candidates prior
to the interviews and/or seek
the requisite approvals. As she puts it
she “
just never thought of it.”
[80] It is to be recalled
that Ms Bakker and Knepscheld scored Ms Winter the best candidate
whereas Ms Fort scored Ms Coetzer the
most suitable candidate.
Although Ms Fort initially claimed that she did not introduce the
splitting of the position into two so
as to accommodate Ms Coetzer
she ultimately conceded that she did so. This suggestion came during
the deliberations by members
of the panel after the candidates had
been allocated their scores. The question is why Ms Fort waited until
after the scores had
been announced to suggest the split. The
ineluctable inference is that she had hoped that the outcome of the
interview would be
in favour of Ms Coetzer as the preferred
candidate. When it became apparent that the panel’s preferred
candidate was Ms Winter
she cunningly outsmarted her unsuspecting
fellow panelists by bringing forth the idea of creating a duplicated
document control
officer position combining Ms Winter’s
technical skill with Ms Coetzer’s people management acumen.
[81] Mr Le Roux posed a
few rhetorical questions in his argument,
inter alia
: why
would Ms Fort place her career in jeopardy by manipulating the
appointment of Ms Coetzer? Why would Ms Fort bother to coach
Ms
Coetzer on her CV when she had the authority to appoint whomsoever
she liked to the position? In my view these questions take
the issue
no further. While it is true that Ms Fort had been delegated the
authority to recruit employees to the approved vacant
positions this
did not clothe her with the power to create vacant positions as she
sought to do with the split. As to why Ms Fort
did not simply appoint
Ms Coetzer, the simple answer is that such a flagrant deviation from
the normal recruitment routine would
not fly.
[82] Ms Fort made it
clear to Mr Gajjar “
I will be honest with you, I did not
want Lee-Anne (Ms Winter)”…“I know that I was
against appointing Lee-Anne
because I had major concerns about her
people side of things.”
There can be no doubt that Ms Fort
was biased in favour of Ms Coetzer. She deliberately understated her
dealings with Ms Coetzer
in order to conceal her bias. Mr Fourie
argued that Ms Fort made a concerted effort to bolster Ms Coetzer’s
chances of appointment
to such a degree that the only reasonable
inference is that Ms Fort manipulated the process with the aim of
appointing Coetzer,
come what may. She did so in a deliberate and
devious manner in an effort to hide her machinations and to make the
outcome of the
interview process seem as natural and normal as
possible. I have to agree.
[83]
The Court a quo found it unnecessary to move into a somewhat
controversial terrain regarding the question whether Ms Fort had

obtained Mr Koza’s approval with regard to the appointment of a
second document control officer. This was so because the
Court had
already pronounced,
inter
alia,
that Ms Fort had treated Ms Coetzer with a degree of favouritism by
enhancing her application and had not disclosed this to the
selection
panel which, the Court found, gave rise to a very serious conflict of
interest.
[84]
As adumbrated earlier, the commissioner
found
the alleged verbal approval, that Ms Fort testified she obtained from
Mr Koza, to have been sufficient and that it was improbable
that Ms
Fort had not discussed the appointment of the two document control
officers with Mr Koza. She held that the HR Department
did not
question the alleged approval.
[85] It is important to
remember that Ms Knepscheld advised Ms Fort, in the event that she
was interested in appointing Ms Coetzer,
to seek the approval of Mr
Koza.  One significant observation made by the Court a quo was
that the advice given by Ms Knepscheld
to Ms Fort accorded with
clause 2.1(a) of CDC’s HR manual which reads: “
Recruitment
is subject to the approval of the CEO or Business Unit Executive
Manager, depending on the level of the position to
be filled.”
Mr Gaig Luckman, the unit head of employment relations who had been
called by the commissioner as a witness, also confirmed that
Mr
Koza’s approval was required. According to Ms Bakker Ms Fort
informed them that she will speak to the Executive Manager,
Mr Koza,
regarding the employment of the two candidates as opposed to one due
to the enormous workload.
[86] Ms Fort attempted to
paint a picture that there had never been a discussion between the
panel members for her to obtain Mr
Koza’s approval but merely
to seek advice which she says she did. She maintained that Mr Koza
had delegated the recruitment
functions to her. There is no evidence
showing that Ms Fort corrected Ms Knepscheld and Bakker that she
already had a delegated
authority to approve the second appointment
when Knepscheld pointed out to her that she needed Mr Koza’s
approval.
[87] Mr Koza’s
evidence, on the aspect of his approval, is not without any
blemishes. It is correct that during the disciplinary
enquiry he
testified “
from a process point of view
” he was
not sure “
if one is allowed to advertise for one person and
then appoint two
.” Although he was not certain he went on
to say that the delegation of authority required that, in case of an
appointment
of two candidates in respect of one advertised position,
his approval had to be obtained. He was consistent both at the
disciplinary
enquiry and during the arbitration that he did not have
any discussion with Ms Fort around the appointment of the two
candidates.
[88] There is no paper
trail in respect of the approval which Mr Koza purportedly gave to Ms
Fort for the division of the one document
control position into two.
There is also no record of the discussions between Ms Fort and Mr
Koza concerning his approval and/or
advice, save Ms Fort’s
say-so. Ms Fort could not produce an e-mail she said she directed to
HR informing it of Mr Koza’s
approval. Ms Knepscheld testified
that Ms Fort verbally informed her of Mr Koza’s approval. There
was nothing on the evidence
to suggest that Ms Knepscheld was not a
credible witness. In all likelihood the e-mail to HR was
non-existent. Both Ms Knepscheld
and Ms Bakker were Ms Fort’s
subordinates. They had reason to doubt her sincerity.
[89] I am unpersuaded, on
the evidence, that Mr Koza did not tell the truth in order to deflect
blame from himself when the appointment
became contentious as
contended by Mr Le Roux. The evidence is overwhelming that the
approval of the Executive Manager was required
with regard to the
appointment of the two document control officer because only one
vacancy had been advertised while Ms Fort’s
request was that
two candidates be appointed. It is improbable in the extreme that, in
a large state owned company such as CDC,
a new vacancy could have
been created in the manner adverted to by Ms Fort. The delegated
authority to recruit into the approved
vacant position cannot include
the implied authority to create a new position.
[90] Ms Fort’s
version that she had funding for the two positions and therefore
could carry out the appointments because this
would not have affected
the headcount is not without difficulty. According to the evidence by
Koza, Luckman and Ms Knepscheld the
approval of the Executive Manager
was required whether it be a permanent or contractual appointment.
Luckman, the Acting
HR Manager, explained that the appointment had an
impact on the headcount because a person at the level of Ms Fort
cannot have
carte blanch: without executive oversight, to determine
arbitrarily the number of employees she wanted to recruit mainly
because
this was a project-based appointment of a limited duration.
[91] From this analysis
is it clear that there is a significant incongruence between
commissioner’s findings and the evidence
presented at the
arbitration.
The appointment of Mr
Talha Ebrahim
[92] Mr Talha Ebrahim
secured an internship at CDC’s Vulindlela Construction Village
without any competition within a period
of a month after his brother,
Mr Adnaan Ebrahim, had given Talha’s CV to Ms Fort. Given the
Court a quo’s findings
regarding the misconduct committed by Ms
Fort, in respect of her participation in the recruitment and
appointment of Ms Coetzer,
the Court deemed it unnecessary to
determine the regularity or otherwise in the appointment of Mr Talha
Ebrahim. Notwithstanding
this observation the Judge a quo remarked
“
the contention (accepted by the commissioner) appears
somewhat improbable”
. No appeal lies against the findings
of the Court a quo in respect of the issues raised concerning the
appointment of Mr Talha
Ebrahim.
Summary of findings
[93]
On a cumulative view of the analysis set out above, the inexorable
conclusion is that Ms Fort was not a credible witness. She
failed to
provide a complete and honest account to CDC of her involvement in
the appointment of Ms Coetzer.
I
am satisfied that the probabilities overwhelmingly indicate that she
actively manipulated the recruitment system in order to promote
the
appointment of Ms Coetzer.
[94] I am satisfied that
Ms Fort failed to disclose that she had been active in procuring Ms
Coetzer second CV and assisting her
in enhancing same. This amounts
to wilful conduct in breach of the duty to avoid conflicts of
interest.
[95] The conclusion
reached by the commissioner that Ms Fort did not commit any
misconduct is not sustainable on the facts of this
case and certainly
does not fall within the band of reasonable decision makers.
The impact of Ms
Fort’s conduct to the employment relationship
[96]
Ms Fort had been in the service of CDC for a period of nine years.
She had a clean disciplinary record.
Ms
Fort abused her position of authority in order to secure the
appointments of Ms Coetzer and Mr Talha Ebrahim.
It was
argued for CDC that
given
the grievous nature of the misconduct (nepotism, a form of
corruption, in a publicly-funded institution) dismissal was the
only
appropriate sanction.
Mr
Koza testified that the offences in respect of which Ms Fort was
charged breached the trust relationship. He would not be able
to
efficiently discharge his obligation having to second guess decisions
taken by a senior manager operating at the level of Ms
Fort.
[97]
In
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
[15]
this
Court restated the consistently adopted approach, laid down in the
jurisprudence of the Labour Court in
Standard
Bank SA Ltd v CCMA & others
[16]
to
the effect that it is one of the fundamentals of the employment
relationship that the employer should be able to place trust in

their employees to discharge their responsibilities dutifully.
A breach
of this trust in the form of conduct involving dishonesty, as in
this case, is one that goes to the heart
of the
employment relationship and is destructive of it.
The
sanction of dismissal must be seen as
a
sensible operational response to risk management in the particular
enterprise.
[17]
Nepotism
has a damaging effect on the positive corporate culture and is a
potential threat to the morale of other employees.
I am satisfied that dismissal is the appropriate sanction in the
circumstances of this case. There is reason to upset the order
of the
Court a quo in this regard.
The question of costs
[98] While I am mindful
that both parties had requested costs in the event of them achieving
success at the proceedings before the
Labour Court I am of the view
that this is a case where consideration of law and fairness dictated
the contrary. This is so because
the Court a quo remarked that the
review application was necessitated by the fact that the commissioner
produced an unreasonable
award. I am of the view that, in resisting
the review, Ms Fort raised genuine and serious issues to be tried.
Therefore, she should
not have been ordered to pay the review costs.
In respect of the costs of this appeal I am of the view that the same
considerations
should apply. Ms Fort had an arguable case and should
not be mulcted into paying CDC’s costs. The upshot of this is
that
each party should bear its own costs for the proceedings in both
this Court and in the Labour Court. In the result I make the
following
order.
Order
1.
The
appeal is upheld in part.
2.
No
order is made as to costs in respect of the appeal.
3.
Paragraph
3 of the order of the Labour Court in respect of the costs is set
aside and substituted with the following:
“
3.
No order is made as to costs”
_________________________
MV Phatshoane
Acting
Judge of the Labour Appeal Court
Waglay
JP and Davis JA concur in the judgment of Phatshoane AJA
APPEARANCES:
FOR THE APPELLANT:

Adv F le Roux
Instructed by Chris Unwin Attorneys
FOR THE FIRST RESPONDENT:
Adv G A Fourie
Instructed by
Shepstone & Wylie
[1]
For purposes of reporting, the
citation on the heading of the judgment has been changed to reflect
Coega Development Corporation
(Pty) Ltd (CDC) as the first
respondent. CDC is on record the third respondent.
[2]
She is referred to as Heraldine
Labuschange on the record.
[3]
The e-mail is at
p1221 of the record and appears to have been sent to Ms Fort on 18
April 2013 by a certain Adri Bezuidenhout.
[4]
The precise date of the interview
conducted by Mr Gajjar is not apparent from the record.
[5]
(2007) 28 ILJ 2405
(CC).
[6]
At 2439 para 110
the Court pronounced: “To summarise,
Carephone
held that s 145 of the LRA was suffused by the then constitutional
standard that the outcome of an administrative decision should
be
justifiable in relation to the reasons given for it. The better
approach is that s 145 is now suffused by the constitutional

standard of reasonableness. That standard is the one explained in
Bato
Star
:
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?
Applying it will give effect not only to the constitutional right to
fair labour practices, but also to the right to administrative

action which is lawful, reasonable and procedurally fair.”
[7]
(2013)
34 ILJ 2795 (SCA) at 2802 para 13
[8]
2003
(1) SACR 35
(SCA) at 41 para 9.
[9]
See
Medscheme
Holdings (Pty) Ltd & another v Bhamjee
2005
(5) SA 339
(SCA)
at
345A-C para 14.
[10]
2000 (1) SA 1
(CC) at 43-44 paras 79-80.
[11]
1948
(2) SA 677
(A) at 706.
[12]
(2015)
36 ILJ 2038 (LAC) at 2044-2045 para 14.
[13]
T
his
appears in the statement dated 19 July 2013 written by Ms Coetzer in
response to Mr Mapoma’s request that she respond
to the
allegations of misconduct concerning her appointment at CDC (Vol 12-
page 1084 of the record).
[14]
Which is the second CV
[15]
(2008)
29 ILJ 2581 (LAC) a
t
2585
para 16.
[16]
(1998) 19 ILJ 903 (LC)
[17]
See
De
Beers Consolidated Mines Ltd v Commission for Conciliation,
Mediation & Arbitration & others
(2000)
21 ILJ 1051 (LAC)
at
para
22
.