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[2018] ZALAC 16
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Nel v Construction Education and Training Authority and Others (PA3/17) [2018] ZALAC 16 (10 July 2018)
IN
LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Case no: PA3/17
Not Reportable
In the matter between:
BELINDA
NEL
Appellant
and
CONSTRUCTION EDUCATION AND
TRAINING
AUTHORITY
First
Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
Second
Respondent
COMISSIONER JONATHAN
N.O.
Third
Respondent
Heard: 15 March 2018
Delivered: 10 July 2018
Summary
:
The appellant employee- dismissed by the respondent employer pursuant
to a disciplinary hearing on allegations of dishonesty.
It was
alleged, for instance, that she failed to disclose that she was in
possession of a gift card which had funds due to the
employer.
The CCMA –finding that the
employer failed to establish that the employee acted fraudulently-
further finding- the dismissal
to have been procedurally and
substantively unfair.
On review to the Labour Court- the
Court considering the application for condonation of the late filing
of the review and the record
of the arbitration proceedings –
finding in respect of the late filing of the review that the employer
had reasonable prospects
of success. Finding in respect of the late
lodging of the record- that the Registrar had not informed the
employer of the availability
of the record which, in any event, had
not been filed out of time. On the merits- finding that the
commissioner conducted the enquiry
into the fairness of the dismissal
in an incorrect manner and reached an unreasonable result.
Resultantly - reviewing and setting
aside the arbitration award.
On Appeal to the Labour Appeal
Court- the Court finding no merit in the argument that the Labour
Court did not exercise its discretion
judicially in upholding the
employer’s application for condonation.
Held that - in a misconduct hearing
one is not required to satisfy the criminal law requirements of
wrongdoing- All that is required
is to establish if an employee
committed misconduct and the seriousness thereof.
Held further that - the employee
misled the employer and deliberately concealed the existence of the
gift card which had a credit
balance due to the employer and made
herself guilty of dishonest conduct. Held further that - the Labour
Court’s conclusion
that the arbitration award did not fall
within the band of reasonable decision could not be faulted.
The appeal was therefore dismissed.
Coram: Waglay JP, Phatshoane ADJP
and Musi JA
JUDGMENT
PHATSHOANE ADJP
[1] This is an appeal against part of
the judgment and order of the Labour Court (
per
Lalie J)
handed down on 22 July 2016 reviewing and setting aside the
arbitration award dated 06 July 2014 issued under Case No:
ECPE
5733-13 by Commissioner Raymond Jonathan (“the commissioner”),
the third respondent, under the auspices of the
Commission for
Conciliation Mediation and Arbitration (the CCMA), the second
respondent. The appeal is with leave of the Court
a quo
.
[2] Ms Belinda Nel, the appellant, was
employed as a provincial administrator on 01 July 2000 by the
Construction Education and
Training Authority (“CETA”), a
Sector Education and Training Authority established in terms of
ss 9
and
13
of the
Skills Development Act, 97 of 1998
, the first
respondent. It had been her duty to order office refreshments and
utilities (cleaning materials). However, during 2013,
CETA introduced
a new procurement process in terms of which its supply chain
management unit, situated in Midrand, Gauteng Province,
would be
responsible to procure goods and services for its regional offices.
This office would select the best quotation from the
suppliers for
office groceries and deposit the required sum of money into the bank
account of a chosen retailer. Following this
process the regional
office would send an employee to collect the groceries from the
designated retailer.
[3] CETA sought a quotation from Pick
‘n Pay William Moffett Hypermarket (“Pick ‘n Pay”),
Eastern Cape,
following its procurement
process around July 2013. On 31 August 2013 it deposited an amount of
R6 093.38 into the bank account
of Pick ‘n Pay. On 04 and
05 September 2013 the appellant was instructed by Mr Xolisile Brian
Fina, the Eastern Cape Provincial
Coordinator of CETA and her
supervisor, to collect the stock at Pick ‘n Pay in accordance
with the pre-approved standard
list known to every administrator.
[4] On 04 September 2013, instead of
collecting the items, the appellant loaded R5 000.00 onto a gift
card with the last four
digits: 4153, being the maximum amount that
could be loaded on a card, and the remaining R1 093.38 onto a
gift card with the
last four digits: 6212. She purchased goods to the
value of R4 031.77 with gift card 4153. She then returned some
items in
the afternoon in respect of which a refund of R1 102.49
was credited to a third gift card with the last four digits: 5774.
She also returned long-life milk to the value of R2 015.68 which
amount was credited to gift card 4153. She then used the
whole amount
of R1 093.38 on gift card 6212 to make further purchases leaving
it with a zero balance.
[5] On 05 September 2013 she
repurchased milk in the amount of R944.85; R503.92 and R566.91 using
gift card 4153 leaving the card
with a zero balance. She then used
the third gift card 5774 to make further purchases to the value of
R522.25 and R197.84 leaving
this card with a credit balance of
R381.84.
[6] During the shopping of 04 and 05
September 2013 the appellant used her smart shopper card, a Pick ‘n
Pay loyalty programme
used for the accumulation of points which can
be converted into cash for further purchases. She also used her
credit card to effect
payment for some of the items purchased which
CETA says was unnecessary as it had paid for its own goods.
[7] Mr Fina was at the head office in
Johannesburg on 04 and 05 September 2013 when the appellant was
collecting the office supplies
at Pick ‘n Pay. On his return to
the office, on 06 September 2013, the appellant reported to him that
she collected the stock
from Pick ‘n Pay and handed to him till
slips; two gift cards ending with numbers: 4153 and 6212, which both
had a zero balance;
and photocopies of the grocery list. Mr Fina says
that the appellant explained to him that she had been advised by a
cashier at
Pick ‘n Pay to load the amount allocated by CETA for
the purchases onto two gift cards. He was surprised as there was no
need for this but only the collection of the stock. He intimated that
the appellant did not know why she had to use the gift cards
but
mentioned that her car was small (Hyundai Atos) and would have to do
a number of trips to fetch the office supplies. Mr Fina
says she
further reported to him that at some stage the amount allocated for
the purchase of stock was exceeded and therefore she
used her master
card to settle what was due. She also informed him that she had to
return some of the items because she thought
it was incorrect for her
to use her own master card. She did not report to him that she used
her smart shopper card in the course
of her transactions.
[8] Mr Colin Frederick Sylvester, the
branch manager of Pick ‘n Pay, intimated that the customer
service manager of the store,
Ms Maritsa Van Schalkwyk, drew his
attention to certain anomalies she was uncomfortable with that
occurred during appellant’s
shopping escapades of 04 and 05
September 2013 at the refunds counter. It was reported to Ms Van
Schalkwyk that the appellant,
inter alia
, objected to the
cashier’s cancellation of the refunded items on the till slips
because this would be queried by her employer.
She also requested a
refund for the sugar because its packaging was damaged when this
could have been replaced.
[9] Mr Sylvester says that the
appellant’s conduct made him suspicious. He then arranged to
meet Mr Fina and showed him a
video footage of the appellant
transacting at the store. Fina says that he observed, on the footage,
the appellant arriving at
the store on two occasions wearing
different clothing and had changed her hairstyle to conceal her
identity. Fina further intimated
that Mr Sylvester made him aware of
the existence of a third gift card 5774 in respect of which the
credit balance from the other
gift cards had been transferred when
the appellant was returning some of the items purchased. He was
amazed because the appellant
did not report that she had the third
gift card.
[10] Mr Sylvester says that Pick ‘n
Pay will provide a gift card to a customer on the latter’s
request. This much was
confirmed by Ms Van Schalkwyk who added that
the appellant enquired if the funds paid by CETA could be loaded on
the gift cards
because she had a small car and would have to make
several trips to transport the stock to her workplace. She denied
that it was
her suggestion that the money be loaded onto the gift
cards or that it was preferable to do so.
[11] The appellant testified that CETA
did not provide her with rules on bulk purchases or on the use of
smart shopper cards by
its employees. It was for the first time that
she did bulk purchasing at Pick ‘n Pay and was not familiar
with their procedures.
She had to do several trips to transport the
stock because her car was small. Ms Van Schalkwyk gave her the option
of loading the
money onto the two gift cards. She says this was
convenient for her because she would be able to control the expenses
knowing that
she would have to return some of the items in accordance
with the discussion she had with Mr Fina prior to the collection of
the
stock. Mr Fina gave her permission to deviate from the
pre-approved list. He also mandated her to exercise her discretion to
purchase
what was required and to exchange goods that were in excess.
She confirmed that during her shopping she exceeded the amount loaded
on the gift cards and had to use her master card to settle the
balance that was due because she was told that she would be
reimbursed
at the returns counter. She also, out of habit, used her
Pick ‘n Pay smart shopper card when making purchases because
the
cashiers asked for it. She did not report to Fina on the third
gift card.
[12] On 17 September 2013 the
appellant was placed on mandatory special leave pending an
investigation into allegations of her misconduct.
On 21 October 2013
she faced charges of dishonesty, fraud, material breach of fiduciary
duty, gross dereliction of duty, gross
negligence, failure to
exercise due care in the discharge of her duties, and contravention
of CETA’s internal policies and
procedures. She was found
guilty on all the charges at an internal disciplinary hearing and
dismissed on 29 October 2013. She then
referred her dismissal dispute
to the CCMA for conciliation and arbitration.
The commissioner’s award
[13] The commissioner found that the
appellant did not receive any assistance from CETA’s supply
chain unit and had no knowledge
of how to make bulk purchases. He
found it improbable that the appellant would request that the money
be loaded on the gift cards.
In his view, this was a proposal that
was made by Ms Van Schalkwyk to the appellant. He was further of the
view that Mr Fina could
not authorise the appellant to open the gift
cards since he was not
au fait
with the bulk purchases
procedure.
[14] He held that the appellant did
not discuss the third gift card with Mr Fina and therefore she did
not make any representations
to him. There was no evidence that Mr
Fina enquired from the appellant about the remaining funds during her
report. He accepted
the appellant’s evidence that she had not
yet concluded the shopping and therefore had not handed over the
third gift card
to Mr Fina. He found that the appellant had not used
any of the remaining funds to her benefit but kept the card on the
advice
of her attorneys. Consequently, she could not be said to have
defrauded CETA.
[15] The commissioner further found
that the appellant was not guilty of gross negligence as this charge
related to her several
patronage of the store. Mr Fina took no issue
that the appellant frequented the store because she had a small car
and had always
used it to transport the stock without any quibbles.
[16] The commissioner could not
comprehend how the employee with 15 years of experience would be
required to obtain authorisation
from her manager to exchange items
when this was in the best interest of CETA. He accepted that there
were cogent reasons for the
exchange of the items purchased by the
appellant and found no dereliction of duty on her part.
[17] According to the commissioner,
CETA had failed to establish that the appellant took points that
belonged to it insofar as it
was alleged that she used her smart
shopper card. Although he was of the view that a smart shopper card
was no more than a free
gift, he acknowledged that it was improper
for the appellant to swipe her smart shopper card. This
notwithstanding, he found that
she did not receive any points for
presenting her card and therefore did not benefit from the
transactions. He held that her action
did not amount to fraud but, at
best for CETA, amounted to failure to declare a gift which she
received in the form of points.
In any event, he held that CETA’s
disciplinary code did not provide for this type of an offence. He was
of the view that,
for this kind of a disciplinary infraction, a
warning would have sufficed regard being had to “
the value
of the possible gift, the service record of the applicant and the
impeccable disciplinary record of the applicant
.”
[18] The commissioner concluded that
the dismissal of the appellant was both procedurally and
substantively unfair and reinstated
her retrospectively with back pay
in the amount of R121 870.64.
The proceedings before the Labour
Court
[19]
Dissatisfied with the outcome of the arbitration, CETA filed an
application to review and set aside the commissioner’s
award on
03 September 2014, 12 days out of time.
[1]
It had also defaulted in filing the record of the arbitration
proceedings timeously anent the requirement laid down in para 11.2.2
of the Labour Court’s Practice Manual which stipulates that,
for purposes of
Rule 7A
(6),
[2]
the records of the arbitration proceedings must be filed within 60
days of the date on which the applicant is advised by the registrar
that the record has been received. This resulted in the review being
deemed to have lapsed in terms of para 11.2.3 of the Labour
Court’s
Practice Manual.
[20] On 28 August 2015,
almost a year following the filing of the review, CETA applied for
the reinstatement of the review and filed
an application for
condonation of the late institution of the review. In explaining the
12-day delay, Ms Sonja Pilusa, the CEO
of CETA and its deponent, says
that she was out of office towards the end of August 2013 on official
business. CETA, which had
no alternative suitable executive manager
at the time to attest to the affidavit, sought an indulgence from the
appellant’s
attorneys to file the review by 02 September 2013
on her return to the office.
[21] Regarding the late lodging of the
record of the arbitration proceedings on 14 January 2015, which ought
to have been filed
on 03 December 2014, CETA explained that it did
not receive any directive from the registrar sent on 15 September
2014 availing
the record. It says it experienced difficulties in
obtaining the complete record and details how it went about ensuring
that the
record was placed before the Labour Court. In amplification,
it attached a number of correspondence exchanged between its
attorneys
in a quest to obtain the record.
[22] Upon receipt of the audio
recording on 15 October 2014 same was sent to CETA’s attorneys’
preferred transcription
service providers. CETA intimated that it
also encountered problems in uplifting the full set of documents
despatched by the CCMA
to the registrar. The entire contents of the
Court file could only be provided on 25 November 2014 but the
documents were still
incomplete. The preparation of the record was
finalised on 08 December 2014, at the time which CETA’s
principal attorney
was on annual vacation. On his return to the
office on 12 January 2015 he verified the record and immediately
forwarded same to
his correspondent for service and filing which took
place on 14 January 2015, just over one calendar month late.
[23] In the main, the appellant
resisted CETA’s applications for condonation because they were
brought a year following the
filing of the review.
[24] The Court
a quo
accepted
that the legislature did not prescribe the time period within which
an application for condonation had to be lodged. It
found, in respect
of the application to reinstate the review, that CETA may not be
prejudiced due the registrar’s fault because
the latter failed
to notify it of the availability of the record. Resultantly, it could
not be said that the record was filed out
of time. It was persuaded
that CETA established good cause for the reinstatement of the review.
It then considered the application
for condonation of the late filing
of the review and found: that the delay of 12 days was not
substantial and that the explanation
thereof was compelling; CETA had
strong prospects of success; and refusing condonation would result in
a miscarriage of Justice.
[25] On the merits, the Court found
that the appellant had an opportunity to report the third gift card
to Mr Fina but deliberately
elected not to do so. She misled Mr Fina
into believing that she spent all the money deposited by CETA into
Pick ‘n Pay’s
account. The Court was of the view that the
explanation accepted by the commissioner, for the appellant’s
failure to disclose
the existence of the third gift card, was a clear
afterthought. It then drew an inference, on the basis of the
appellant’s
non-disclosure of the third gift card, that she
committed fraud. This was fortified by her buying pattern. The Court
further found
that the commissioner, in arriving at the conclusion
that the appellant was not guilty of fraud, conducted the enquiry
into the
fairness of the dismissal in an incorrect manner and reached
an unreasonable decision. The gravity of the irregularity vitiated
his decision on the substantive fairness of the dismissal.
[26] The Court
a quo
further
found that the record reflected that the appellant made herself
guilty of serious misconduct which involved dishonesty.
This
destroyed the relationship of trust which is the cornerstone of the
employment contract and justified her dismissal. It reviewed
and set
aside the commissioner’s award and substituted same with an
order that the dismissal was substantively and procedurally
fair. The
finding of the Court
a quo
on the procedural fairness of the
dismissal is not assailed in the present proceedings.
The grounds of appeal
[27] To sum up, it was contended that
the Court
a quo
erred in:
27.1 condoning the late filing of the
review and reinstating it.
27.2 finding that the commissioner’s
determination was disconnected to the evidence. It was contended that
the decision reached
by the commissioner was one that the reasonable
decision-maker could have reach on the material before him.
27.3 finding that the appellant had an
opportunity to report the third gift card but deliberately elected
not to do so. It was contended
the Court did not take into account
that the charges brought against the appellant were baseless as all
the items purchased were
accounted for and she still needed to
purchase more items.
27.4 finding that the appellant misled
Fina into believing that she had spent all the funds intended to
purchase the stock. She
kept the card as she was acting on the
instructions of her attorney and returned it at a later stage without
having spent the credit
balance.
27.4 finding that the most plausible
inference to be drawn from the facts surrounding the appellant’s
failure to disclose
the existence of the third gift card was that she
committed fraud. In any event, it was argued, CETA knew of the
existence of the
third gift card as Pick ‘n Pay till slips
revealed that there was a third card.
27.5 ignoring the evidence to the
effect that Mr Fina gave the appellant permission to use her
discretion with regard to the quantities
of stock to be purchased and
that he forwarded a text message to her knowing that she would effect
changes to the groceries in
accordance with her discretion. Based on
the text message the appellant returned some of the goods she had
purchased.
27.6 accepting CETA’s argument
that the commissioner overlooked the pattern followed by the
appellant when purchasing the
goods. It was contended that CETA
failed to prove that the appellant acted fraudulently as all the
goods were accounted for and
she ought not to have been dismissed on
mere suspicion of fraud.
The analysis
[28]
The appellant’s main objection to the reinstatement of the
review and the application for condonation of the late lodging
of the
review is that CETA defaulted in bringing the application for
condonation for a period of one year. Ms Ah-Shene, for the
appellant,
contended that CETA should have been aware that its review
application was late by 15 December 2014, when the appellant
brought
an application in terms of
s 158
(1)(c) of the LRA,
[3]
because it was drawn to its attention that its review was late. She
argued that the Court
a
quo
erred in concluding that the review application was filed two weeks
out of time without considering the delay in filing the application
for condonation itself. In respect of the reinstatement of the lapsed
review, she contended that CETA has been reactionary in processing
the review. The Court
a
quo
erred
in that it did not consider that the delay from 14 January 2015, when
CETA filed the record of the arbitration proceedings,
to 28 August
2015, when it lodged the application for condonation, was
unexplained.
[29] An application
for condonation involves an exercise of a judicial discretion upon a
consideration of all the facts. The relevant
considerations may
include the degree of non-compliance with the rules, the explanation
therefor, the prospects of success on appeal,
the importance of the
case, the respondent's interest in the finality of his judgment, the
convenience of the court, and the avoidance
of unnecessary delay in
the administration of justice. The list is not exhaustive.
[4]
Condonation cannot be had for the mere asking.
[5]
It is an indulgence that the Court will, within the context of its
power to regulate its own processes, grant to a party upon good
cause
shown for non-compliance with its rules.
[30] Ordinarily an application for
condonation must be brought within a reasonable time as soon as a
party is made aware of its
default. The application for condonation,
in this case, was brought one year following the filing of the review
application. The
Labour Court in determining the matter gave
consideration to the fact that the review itself had been filed only
12 days out of
time and that the record of the arbitration
proceedings was filed just over a month late. The Labour Court took
the view that CETA
had demonstrated that it had every intention to
prosecute the review. The Labour Court also gave consideration to the
prospects
of success which is often a critical factor that needs to
be considered in the interest of justice.
[31] There is, in my view, no merit in
the argument that the Court did not exercise its discretion
judicially in upholding CETA’s
application for condonation and
reinstatement of the review. In the circumstances there is no reason
to interfere in that decision.
[32] On the merits, Ms Ah-Shene
contended that CETA led no evidence demonstrating that the appellant
was dishonest or acted fraudulently
as there had been no
misrepresentation on her part. In CETA’s version, she argued,
all goods were accounted for and the appellant
could use her
discretion to purchase more or less of the goods appearing on the
approved quotation. She further argued that there
was no rule at the
workplace regulating bulk purchases. In essence, she contended,
CETA’s case amounted to mere suspicion
of fraud and it,
therefore, failed to discharge its
onus
.
[33]
It is important to commence this enquiry by reflecting on the
modus
operandi
employed by the appellant on
04 and 05 September 2013, when she was instructed to collect the
stock, to determine if she made herself
guilty of any misconduct. The
undisputed evidence was that if the funds were deposited into the
bank account of the retailer, for
the quoted bulk items, the customer
could still purchase the goods without loading the money onto a gift
card. The normal procedure
was that the goods would be rung up at the
till against a prior allocated voucher number and would be offset
against the amount
already paid into the retailer’s account. It
therefore
appears that there was no reason for the
appellant to have loaded the funds on the gift cards. Her version,
that she agreed to the
funds being loaded on the gift cards because
she was requested to do this by the staff at Pick ‘n Pay and
she needed to control
the expenditure as she would have had to make
several trips to transport the large stock, lacks an element of
truthfulness. Nothing
prevented her from making purchases in
accordance with the procedure described because she could still make
numerous trips to convey
the stock. I am persuaded to conclude that
she requested that the money be loaded onto the gift cards for
reasons that in my view
were less than honest.
[34] Mr Fina testified that the
appellant could not purchase more than what was on the approved list.
However, where there was an
over-supply of a particular item at the
workplace, she could buy less of that item. The unrestrained shopping
prerogative she professed
to have had, by virtue of the position she
held, and the so-called discretion she says Mr Fina gave her prior to
her shopping expedition
is negated by the text message she received
from Mr Fina on 05 September 2013 which reads: “
Hi Belinda,
I understand you are fetching the office supplies. Please do not make
any change from what CETA has given us, except
what we already have
in great supply. Kindly note that no transaction of financial kind
must take place during the exchange of
goods with the retailer, CETA
has already done that. We will discuss control measures of supplies
when I get back as it is supposed
to last for a very long time
.”
When confronted with this she sought to exculpate herself from any
wrongdoing by saying that this was a new instruction
from Mr Fina and
she had already done the purchases and exchanges on 04 September
2013. What is baffling is that she did not respond
to this text
message to question Mr Fina’s alleged conflicting instructions.
[35] Mr Fina did concede that all the
items purchased were accounted for. However, the insuperable obstacle
the appellant faces
is her own admitted failure to disclose the
existence of the third gift card 5774. Her response for not reporting
and handing over
this card to Mr Fina on 06 September 2013 is
puzzling. She said: “
he did not ask, I do not liaise with
anybody regarding my transactions regarding(sic), until it is
complete and I sent it to Danisa
[from the head office of CETA] to
logistics”
. She also could not give any rational
explanation why she kept the third gift card and gave various reasons
for doing so. She said
that her attorney advised her “
to
keep the gift card and the purchase slips as that was my defence that
I had only used (sic) and had CETA’s best interest
and that was
part of my defence
”. During the arbitration an affidavit
she attested on 28 January 2014 was placed before the commissioner
wherein she stated,
inter alia
, “
My attorney at no
stage advised me to return the gift card and R13.95 in cash to my
employer.”
She later sought to say she had not completed
her shopping and therefore she did not return the card. What is
remarkable is that
she did not inform Mr Fina when reporting to him
that she had not yet finished her shopping and that she was in
possession of a
card with a credit balance of R381.84.
[36] It bears repeating that on 06
September 2013 the appellant readily reported on the two gift cards:
4153 and 6212. Mr Fina categorically
denied that on the information
placed before him, on 06 September 2013 by the appellant, there was
some indication of the existence
of the third gift card. As he puts
it “
there was no information referring to that card”
.
The appellant said to him “
(T)his is it, zero, zero,
everything balances. There are two gift cards, here are the
invoices.”
[37] As found by the Court
a quo
the appellant had the opportunity to report the third gift card to Mr
Fina when she handed over to him the two gift cards. She
also failed
to present the gift card in issue during her disciplinary hearing
that was held in October 2013. Fina says that during
that enquiry the
appellant still denied the existence of the third gift card but only
towards the end of the hearing she admitted
that it was at home. She
decided to hand over the card around 28 January 2014, three months
following the conclusion of her disciplinary
hearing.
[38] The charges brought against the
appellant during her disciplinary hearing were very widely framed. As
already alluded to, she
stood accused of dishonesty, fraud, material
breach of fiduciary duty, gross dereliction of duty, gross
negligence, failure to
exercise due care in the discharge of her
duties, and contravention of CETA’s internal policies and
procedures. In a quest
to understand the nature of the charges the
commissioner engaged CETA’s representative to explain the
particularity of each
of the charges. In his award he limited his
enquiry on the substantive fairness of the dismissal to the
explanation given by CETA’s
representative with regard to the
nature of the charges and did not bring his mind to bear on the
totality of the evidence presented.
The Court
a quo
was right
in holding that the commissioner conducted the enquiry into the
fairness of the dismissal in an incorrect manner.
[39]
The Court
a
quo
correctly concluded that the commissioner had failed to consider the
pattern the appellant followed when purchasing the groceries.
Having
considered the evidence and the failure of the appellant to disclose
the third gift card which had funds belonging to CETA,
the Court
a
quo
found that “
the
most plausible inference to be drawn is that she had committed
fraud
”.
Fraud consists in unlawfully making, with intent to defraud, a
misrepresentation which causes actual prejudice or which
is
potentially prejudicial to another.
[6]
However, in misconduct hearings, one is not required to satisfy the
criminal law requirements of any wrongdoing. All that is required
is
to establish if the employee committed misconduct, whether the
misconduct was one of dishonest conduct complained of or something
else, and the seriousness thereof. Labels are totally irrelevant,
particularly to a criminal charge that is for the criminal courts
to
deal with. Here the appellant misled CETA into believing that all the
monies had been spent on the groceries. The evidence is
overwhelming
that she deliberately concealed the existence of the third gift card
which had a balance of R381.84 and thereby made
herself guilty of
dishonest conduct.
[40] CETA is a
public institution listed under Schedule 3A of the
Public Finance
Management Act, 1 of 1999
, and must account for its management of
public funds. The appellant, who at the time of the arbitration had
17 years of service
with CETA, occupied a position of trust and had,
by her own admission, been purchasing and collecting the groceries
for over a
period of 15 years. Her dishonesty had a direct impact on
the substratum of the employment relationship which justified her
dismissal
regardless of her long period of service. In
Toyota
SA Motors (Pty) Ltd v Radebe and Others
,
[7]
this Court pronounced:
‘
[15]…..Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty
of misconduct, the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length
of service can save an employee who is
guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty.
It appears to me that the
commissioner did not appreciate this fundamental point.
[16]
I hold that the first respondent's length of service in the
circumstances of this case was of no relevance and could not provide,
and should not have provided, any mitigation for misconduct of such a
serious nature as gross dishonesty. I am not saying that
there can be
no sufficient mitigating factors in cases of dishonesty nor am I
saying dismissal is always an appropriate sanction
for misconduct
involving dishonesty. In my judgment the moment dishonesty is
accepted in a particular case as being of such a serious
degree as to
be described as gross, then dismissal is an appropriate and fair
sanction.’
[41]
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator.
[8]
The
decision by the commissioner cannot be sustained on the facts.
The
Court
a
quo’s
conclusion
that his award did not fall within the band of reasonable
decision-makers cannot be faulted.
[42] Something should be said about
the record of this appeal which runs into 16 volumes and was
presented to us in a state of disarray.
The pleadings were not placed
sequentially making it difficult to wade through. The documentary
evidence handed in during the arbitration
is repeated and not
cross-referenced to the transcript of the proceedings. There are also
numerous irrelevant documents which ought
not to have formed part of
the record. This would be a case where a punitive costs order should
be made against the appellant’s
attorneys for their failure to
place a proper record before Court. However, such an order was not
sought by CETA. Be that as it
may, all things considered, I am of the
view that the law and equity would not require that costs follow the
result of this appeal.
This is so because the Commissioner’s
award may have motivated the appellant to pursue this litigation up
to this stage.
In the result, I make the following order.
Order
1.
The
appeal is dismissed.
_________________________
MV Phatshoane
Acting Deputy Judge President - The
Labour Appeal Court
Waglay JP and Musi JA concur in the
judgment of Phatshoane ADJP
APPEARANCES:
FOR THE APPELLANT: L Ah-Shene
Instructed by Brown Braude & Vlok
Inc
FOR THE FIRST RESPONDENT: Mr N Voyi
Instructed
Ndumiso Voyi Inc.
[1]
Section 145(1)(a)
of the
Labour Relations Act, 66 of 1995
, provides:
“Any party to a
dispute
who alleges a defect in any arbitration proceedings under the
auspices of the Commission may apply to the Labour Court for an
order setting aside the arbitration award-
(a)
within six weeks of the date that the award was
served
on the applicant…”
[2]
Rules for the Conduct of Proceedings in the Labour Court - Published
under GN 1665 in
GG
17495 of 14 October 1996—GN 1665 of 1996.
[3]
This was an application to make the arbitration award an order of
the Labour Court.
[4]
United Plant Hire (Pty) Ltd
v Hills
1976 (1) SA 717
(A) at 720E–G.
[5]
Grootboom v National
Prosecuting Authority and Another
2014 (2) SA 68
(CC) at para 23.
[6]
See
S v Gardener and
Another
2011 (1) SACR 570
(SCA) para 29
[7]
(2000) 21
ILJ
340 (LAC) at 344 paras 15-16.
[8]
Herholdt v Nedbank Ltd
(Congress of SA Trade Unions as Amicus Curiae)
(2013)
34 ILJ 2795 (SCA) at 2806 para 25.