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[2018] ZALAC 11
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Nkomati Joint Venture v Commission for Conciliation, Mediation and Arbitration and Others (JA25/2017) [2018] ZALAC 11; [2018] 8 BLLR 773 (LAC); (2018) 39 ILJ 2484 (LAC) (17 May 2018)
Amended 12 November 2025
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case
no: JA25/2017
In
the matter between:
NKOMATI
JOINT VENTURE
Appellant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First respondent
NOKO
NKGOENG
N.O.
Second respondent
NATIONAL
UNION OF MINEWORKERS
Third respondent
M
K
Fourth respondent
Heard:
10 May 2018
Delivered:
17 May 2018
Summary:
Employee dismissed for dishonesty in tampering with formula on
spreadsheet which contained bonus payments. At arbitration
found that
his dismissal was substantively unfair and employee reinstated.
Labour Court dismissed employer’s review application
on basis
that the arbitration award was not unreasonable. On appeal found that
employee’s role was to check the veracity
of the information in
the spreadsheet. He either failed to check the veracity of this
information concerning himself or deliberately
tampered with it to
advantage himself. In either event, his conduct was dismissible.
Labour Court erred in its failure to find
that the arbitration award
was not reasonable having regard to the nature of the enquiry and the
material before the arbitrator.
Appeal succeeds with no order as to
costs. Order of Labour Court set aside and substituted. Dismissal of
the employee found to
have been substantively fair.
Coram:
Waglay JP, Phatshoane ADJP and Savage AJA
Judgment
SAVAGE
AJA
Introduction
[1]
This appeal, with the leave of this Court,
is against the judgment of the Labour Court (Baloyi AJ) in which an
application for the
review of the arbitration award of the second
respondent (the arbitrator), made under the auspices of the first
respondent, the
Commission for Conciliation, Mediation and
Arbitration (CCMA), was dismissed with no order as to costs.
[2]
Mr M K (the employee) was employed in
November 2010 as a payroll supervisor by mining company, Nkomati
Joint Venture (the appellant).
He was dismissed for dishonesty after
having been found to have tampered with the formula on a payroll
spreadsheet for October
and November 2012. Aggrieved with his
dismissal, the third respondent, the National Union of Mineworkers
(NUM), referred a dispute
on behalf of the employee to the CCMA for
determination. The arbitrator found that the dismissal of the
employee was substantively
unfair and ordered that he be reinstated
retrospectively into the same or similar position, with five (5)
months back pay.
[3]
The evidence at arbitration was that the
employee’s responsibilities as payroll supervisor included
checking the final payroll
spreadsheet prepared for monthly bonus
payments for around 800 employees, before sending the spreadsheet for
approval to Mr Suhayl
Packery, the appellant’s financial
services manager. Mr Packery was newly appointed into his role and,
on receipt of the
spreadsheet, decided to review the data carefully
in respect of the five employees in his department, including the
employee, to
satisfy himself that “
everything
is above board
”. He found that
the calculation formula used in the bonus spreadsheet had been
altered to the benefit of only the employee,
who had not worked 22
shifts in October 2012 but only 21 shifts. A review of the September
2012 spreadsheet revealed that the formula
had also been altered for
that month, with the employee recorded as having worked 22 shifts,
whereas he had only worked 17 shifts.
In addition, a manual capturing
error was uncovered in respect of a former employee, Mr Sipho Mzimba.
Mr Packery referred only
that error involving Mr Mzimba back to
payroll administrator, Ms Ndlovu, for correction since it did not
involve an alteration
to the formula. The evidence was that up to six
employees had access to the spreadsheet. However, the evidence of
payroll administrator,
Ms Sindisiwe Ndlovu, was uncontested that it
was only the employee and Mr Packery who could access the password
required to alter
the formulas used in the encrypted final document.
The formula used in the spreadsheet was automatic and should not have
been tampered
with. Had the irregularity not been discovered, the
loss to the appellant would have been the amount of R1500.00 paid to
the employee.
Given that the employee was employed in a position of
trust and that his role was to check the veracity of the information
in the
spreadsheet, he had either failed to check the veracity of
this information concerning him or deliberately tampered with it to
advantage himself. In either event, his conduct could lead to
dismissal. His failure to do so was found to be dismissible.
[4]
The employee’s evidence was that
having reviewed the spreadsheet, he gave it to Mr Packery. He then
asked Mr Packery if he
could assist him with the review of the
document but claimed he was “chased” out of the office by
Mr Packery who wanted
to do the job alone. Once back in his own
office, the employee stated that he again reviewed the spreadsheet.
It was then that
he realised there were mistakes in respect of his
own bonus calculation. He returned to Mr Packery to inform him that
his pay had
been calculated incorrectly and that he would ask the
payroll administrators to change this. According to the employee,
although
Mr Packery initially “
did
not have any problem
” with this,
it was later apparent that he did. The employee then testified that
he told Mr Packery that “
there is
an error under my name”
and that
“
we … still have to review
it
”.
[5]
The arbitrator found the version of the
employee to be more probable that he had reported the error to Mr
Packery. He took the view
that the spreadsheet could have been
remitted back to the employee to correct it given that it was not
only the employee who had
access to the spreadsheet. The arbitrator
found that the appellant had not proved that the employee had
tampered with the spreadsheet
and that his dismissal was therefore
substantively unfair. Since the trust relationship was capable of
being restored, reinstatement
with five months’ back pay was
awarded.
[6]
Dissatisfied with the arbitration award,
the appellant sought its review by the Labour Court. The Court had
regard to the evidence
that six people had access to the spreadsheet
password, with the result that the evidence before the arbitrator was
found to have
been insufficient to prove fault on the part of the
employee. Since the arbitration award was reasonable, the review
application
was dismissed with no order as to costs.
Submissions
on appeal
[7]
On appeal, it was contended for the
appellant that there was no plausible explanation provided as to why,
since it was the employee’s
role to check the spreadsheet, the
employee did not identify the problem as it pertained to him and
ensure that it was corrected
before sending it on to Mr Packery.
Since the evidence was that the employee was the only person who
stood to benefit from the
formula change, the most reasonable
inference to draw on the facts was that the employee knew of the
formula change which was to
his advantage, that he was culpable and
that his dismissal for misconduct was therefore fair. Having regard
to the evidence before
the arbitrator, the award was therefore
unreasonable and the Labour Court should properly have it set aside
on review. For these
reasons, it was submitted that the appeal should
succeed with costs.
[8]
The third and fourth respondents opposed
the appeal on the basis that the uncontested evidence was that six
people had access to
the spreadsheet and there was no evidence that
the employee had tampered with the formula. Since the arbitration
award fells within
the bounds of reasonableness required, the
decision of the Labour Court to dismiss the review application could
not be faulted.
Even if this Court were to draw an inference that the
employee was, at most, negligent in not identifying the problem
before sending
the spreadsheet to Mr Packery, dismissal was
inappropriate given that a different error involving Mr Mzimba had
been referred back
to Ms Ndlovu for correction. For these reasons, it
was submitted that the appeal should fail.
Discussion
[9]
A
determination as to whether the decision reached by the arbitrator
was one that falls into a band of decisions to which a reasonable
decision-maker could come, requires that regard must be had to both
the nature of the enquiry and the material placed before the
arbitrator.
[1]
While the
appellant
dismissed
the employee for dishonesty in tampering with the formula used on a
spreadsheet to calculate bonus payments, the arbitrator
took the view
that the issue before him “
was
not whether the
[employee]
had
changed the formula or not. Rather it is whether or not he tampered
with the spreadsheet
”.
In doing so, the arbitrator misconceived the issue before him for
determination, which led him to ignore material evidence
that the
spreadsheet had been tampered with by way of a change to the formula
and that only the employee and Mr Packery had access
to the system to
change the formula.
[10]
It
is a rule of logic, as was stated in
R
v Blom
,
[2]
that, when reasoning by inference, the inference sought to be drawn
must be consistent with all the proved facts. If it is not,
the
inference cannot be drawn. A court is required to select that
inference which is the more plausible or natural one from
those that
present themselves.
[3]
The
facts before the arbitrator proved that i
n
his role as payroll supervisor, the employee was required to check
the bonus payment spreadsheet for errors before sending it
on to Mr
Packery for approval. Having reviewed the spreadsheet, the employee
sent it to Mr Packery.
He
provided no explanation as to why he had failed to identify that the
formula had been changed to his benefit alone, more so when
only
he and Mr Packery had access to the system to change the formula.
[11]
Having regard to the proved facts, the more
plausible and natural inference to be drawn is that the employee
acted dishonestly by
tampering with the formula on the spreadsheet
for his own benefit. The finding of the arbitrator to the contrary
was a decision
that a reasonable decision-maker could not reach on
the material before him and the Labour Court erred in finding
differently.
[12]
In the circumstances, the appeal must be
upheld, with the order of the Labour Court substituted with a finding
that the review application
succeeds and that the dismissal of the
employee was substantively fair. Having regard to considerations of
law and fairness, I
am not persuaded that an order of costs should be
made in this matter, more so given that the employee and his union
were successful
both at arbitration and in their opposition to the
review application before the Labour Court.
Order
[13]
In the result, the following order is made:
1.
The appeal succeeds with no order as to
costs.
2.
The order of the Labour Court is set aside
and substituted as follows:
‘
1.
The review application succeeds with no order as to costs.
2.
The arbitration award of the second
respondent, issued by the first respondent, is reviewed and set
aside; and replaced with the
order that the dismissal of the fourth
respondent, Mr M K, was substantively fair.’
Savage
AJA
Waglay
JP and Phatshoane ADJP agree.
APPEARANCES:
FOR
THE APPELLANT:
Mr M van As
Instructed
by Cliffe Dekker Hofmeyr Inc.
FOR
THE THIRD AND FOURTH
RESPONDENTS:
Mr M Z Makoti,
Instructed
by Mothobi Attorneys
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(
Sidumo)
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) at paras 14 and 110.
[2]
1939 AD 188
at 202-3.
[3]
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982 (2) SA 603
(A).