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[2019] ZALAC 2
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DRS Dietrich, Voigt & MIA v Bennet CM N.O and Others (CA14/2016) [2019] ZALAC 2; (2019) 40 ILJ 1506 (LAC); [2019] 8 BLLR 741 (LAC) (27 February 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN.
Reportable
Case
no: CA14/2016
In
the matter between:
DRS
DIETRICH, VOIGT & MIA
Appellant
and
BENNET
CM
N.O
First Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
THULASISWE
THULANI NGCOBO
Third Respondent
Heard:
11 September 2018
Delivered:
27 February 2019
Summary:
Review of an arbitration award -
Employee
dismissed for falsifying his overtime claim forms. The CCMA - finding
that the employee was not guilty of dishonest conduct
but negligent -
substituting the sanction of dismissal with an award of retrospective
reinstatement and a 12-months written warning
for negligence.
On review to the
Labour Court- finding that the award was not susceptible to review
and fell within the band of reasonable decision-makers.
Consequently-
finding no basis to upset the commissioner’s assessment of the
fairness of the disciplinary sanction meted
out to the employee.
On Appeal to the
Labour Appeal Court- finding that the Labour Court’s decision
refusing to review and set aside the arbitration
award was beyond
reproach. The Appeal - dismissed with costs.
Coram:
Phatshoane ADJP, Sutherland JA and Murphy AJA
Judgment
PHATSHOANE
ADJP
[1]
This is an appeal
against the whole of the Judgment and order of Labour Court (
per
Rabkin-Naicker
J) handed down on 08 March 2016, dismissing with costs the
application to review and set aside the arbitration award
dated 01
July 2014 issued under Case No: WECT6702-14 by Commissioner C.M
Bennett (“the commissioner”), the first respondent,
under
the auspices of the Commission for Conciliation Mediation and
Arbitration (“the CCMA”), the second respondent.
The
appeal is with leave of the Labour Court.
[2]
Both parties filed their Heads of Argument
outside the time allocated to them by the Registrar of this Court.
The Heads of Argument
for Mr Thulasizwe Thulani Ngcobo, the third
respondent (“the employee”), were supposed to have been
filed on or before
19 December 2016. They were only filed on 05
September 2018, some 20 months and 12 days late. In the Heads of
Argument submitted
for Drs Dietricht, Voight & Mia (Pty) Ltd t/a
Pathcare, the appellant (“Pathcare”), mention is made
that condonation
shall be sought in a separate application but this
did not happen. In explaining the delay in filing his Heads of
Argument, the
employee says that he intended seeking
pro
bono
representation as he was unable to
cover the costs of the appeal. Only on 04 September 2018, seven days
before this appeal was
argued, did he instruct his current attorneys
of record to oppose the appeal. The delay of some 20 months is quite
excessive. Be
that as it may, I can conceive of no prejudice in
granting condonation. Both sets of heads of argument were considered
for purposes
of disposing of this appeal.
[3]
The
Notice of Appeal by Pathcare was served timeously on 16 August 2016
but was filed with the Court on 17 August 2016, just one
day out of
time. Condonation is also sought for the late filing thereof. The
application is unopposed. It is trite that a slight
delay and a good
explanation, which has been given in this case, may help to
compensate for the prospects of success that are not
strong.
[1]
On
this basis, I am of the view that the application for condonation of
the late filing of the Notice of Appeal should succeed.
To hold
otherwise will be manifestly unfair.
[4]
The
factual matrix giving rise to this litigation is largely not
contentious. The employee served as the Head of Department for
DTP
Print and Design Studio as at 01 July 2010. During December 2012 he
was tasked to work on a Basic Haematology Project of Pathcare
with
the late Professor Jacobs, the Head of Basic Haematology Research
Group. The assignment would have to be performed outside
the normal
working hours. Although the employee was not entitled to claim
overtime, because his salary was more than the threshold
set by the
Minister of Labour, he was given approval to claim this at his normal
hourly rate for every hour of overtime worked
as opposed to the
prescribed one-half times (1.5) the wage ordinarily paid to employees
that are contractually entitled to claim
overtime in terms of the
Basic Conditions of Employment Act, 75 of 1997
(“the BCEA”).
[2]
[5]
Pursuant to a concern raised by Ms Elandi
Bishop, the employee’s line manager, regarding the overtime
claims that were submitted
to her for approval by the employee, an
internal auditor and forensic investigator of Pathcare, Mr Carl
Huebsch, was requested
to conduct an investigation into the
employee’s overtime claims for a period of 13 months commencing
in December 2012 and
ending January 2014. The outcome of this audit
process was that the employee had claimed overtime at an incorrect
1.5 hourly rate
as opposed to the agreed 1.0 hourly rate during July,
November and December 2013 out of the 13 months which were subjected
to the
audit process. The total of these claims amounted to
approximately R7 270.68. Mr Huebsch ascribed the incorrect
claims to
a dishonest conduct on the part of the employee because the
deviations were at intervals and not consecutive.
[6]
The investigation further revealed that for
the period 05 October 2013 to 11 January 2014, on 13 occasions, the
employee failed
to “clock out” for the lunch breaks and
thus claimed overtime when he was not at the workplace. The total
amount claimed
was R1 376.92. Mr Huebsch says that the employee
did not keep accurate record of the overtime worked even though he
was advised
to do so by his line manager.
[7]
The claim forms were all approved and
signed off by the employee’s line manager without any queries.
On 03 and 08 April 2014
the employee was subjected to an internal
disciplinary hearing on two charges of dishonest conduct and/or
falsification of overtime
claim forms. In the first charge, it was
alleged that during the period October 2013 to January 2014, on 13
occasions, he claimed
full overtime hours despite having taken lunch
breaks or being off the company premises. As a consequence of this,
he received
overpayment of R1 376.98. The second charge was that
during July, November and December 2013 he claimed overtime at an
incorrect
hourly rate of 1.5 instead of 1.0 which resulted in an
overpayment of R7 270.68. It suffices to mention that, prior to
his
disciplinary hearing, when the overpayment was discovered, the
employee refunded it.
[8]
The employee was found guilty on the
aforesaid charges and dismissed on 10 April 2014. He then referred
his alleged unfair dismissal
dispute to the CCMA for resolution
through conciliation and arbitration.
[9]
Only the substantive fairness of the
dismissal was in dispute during the arbitration proceedings. In
defending himself, the employee
intimated that his overtime work was
performed over the weekends. He worked for long agonising hours. The
refreshments available
on the premises were limited causing him to
purchase a snack elsewhere and return to the workplace to eat whilst
working. He admitted
that there was a lack of proper record keeping
on his part for the time he spent outside the workplace, during his
meal intervals,
which he did not deduct from his overtime claims. He
says that his actions were not dishonest and intentional and had
apologised
for his transgressions. He admitted that he claimed
overtime at the incorrect rate during July, November and December
2013. He
attributed this to pure human error for which he apologised.
He acknowledged that the repayment he made in respect of the overtime
claims in issue did not excuse his conduct. He says that he submitted
his claim forms not in any covert manner because this were
accompanied by the time sheets which his manager approved. He denied
falsifying any of his overtime claim forms.
[10]
The commissioner found that the employee
claimed overtime at the incorrect rate in the three months already
specified. He further
found that the employee had claimed payment for
the time that he was not at the workplace, that is, during his meal
intervals.
What Pathcare had to prove, he explained, was confined to
whether the breaches of the rule were intentional. The commissioner
found
that Pathcare failed to discharge its
onus
to prove that the employee acted intentionally. In respect of the
allegation that the employee claimed overtime at the incorrect
rate
he was of the view that, if the employee’s actions were
intentional, he would not have submitted the incorrect claim
forms
intermittently but would have repeated this sequentially. Insofar as
the allegation that the employee had claimed overtime
for the lunch
breaks when he was not on the premises is concerned, the commissioner
noted that the employee struggled to justify
his action. He was of
the view that a fraudster would have left less trail of evidential
material. He remarked that the employee’s
argument that he had
no means of recording his overtime time was pitiful as he overlooked
recording this on his diary. He concluded
that the employee “
was
merely slapdash or to put it in another way, negligent.”
[11]
The commissioner observed that, for the
greater part, the employee could not remember where he had been or
what he had been doing
during his lunch breaks and opined that a
fraudulent activity would not have been so badly orchestrated.
Consequently, he found
that Pathcare failed to prove that the
employee had acted dishonestly and deliberately falsified his claim
forms. He was of the
view that the employee’s negligent conduct
was deserving of punishment short of dismissal. He found no evidence
which would
have restricted an award of reinstatement and held that
Pathcare failed to show that the relationship of trust had been
destroyed
beyond repair. Accordingly, he retrospectively reinstated
the employee into the services of Pathcare with three months back-pay
totalling R67 780.84 and substituted the sanction of dismissal
with a 12-month final written warning for negligence.
[12]
On 25 July 2014 Pathcare brought an
application to review and set aside the commissioner’s award in
terms of
s145
of the
Labour Relations Act, 66 of 1995
, in the Labour
Court. The Court found that Pathcare did not prove the intention to
falsify the overtime claim forms. It held that
the commissioner’s
finding, that the employee was careless; negligent; and had no
intention to defraud Pathcare, was within
the band of reasonableness.
The Court further found that the employee’s line-manager had
checked the overtime claim forms
before appending her signature
thereto and had further recorded in an e-mail that she and the
employee had learned a lesson from
their mishaps. The Court held that
the commissioner’s finding, that there was no evidential
material to support Pathcare’s
claim of irremediable breach of
trust, was reasonable. It found no basis to upset the commissioner’s
assessment of the fairness
of the disciplinary sanction meted out. As
already alluded to, the Labour Court dismissed the review application
with costs.
[13]
The grounds of appeal can be summed up as
follows. It was contended, for Pathcare, that the Labour Court erred
in failing to determine
that the commissioner’s approach to the
question whether the employee was guilty of negligence as opposed to
dishonesty had
no basis in fact and in law. It was argued that the
employee deliberately submitted false claim forms. The evidence
presented by
Pathcare showed intent and wilful behaviour on the part
of the employee thus he was dishonest and failed to adduce evidence
to
rebut this, the argument went.
[14]
On the question of relief, Pathcare
contended that the commissioner failed to exercise proper and
judicial discretion in reinstating
the employee regard being had to
the serious nature of the offence and the relationship of trust which
had broken down irretrievably.
[15]
The main issue to be ventilated is whether
the employee acted intentionally or negligently in submitting his
claim forms without
deducting the lunch hours when he was not at the
workplace or when claiming overtime at the incorrect rate. Put
differently, whether
the commissioner’s conclusion, that the
employee was guilty of negligence and not dishonesty, was reasonable.
[16]
The employee gave various explanations for
his failure to keep proper records of the overtime worked. He, for
example, intimated
that he submitted his claim forms with the
spreadsheets for his manager’s approval. He then said at some
point he discontinued
using spreadsheets and submitted his claim
forms with the attendance records which would reflect when he took
his lunch. He sought
to blame his manager for not properly checking
whether his claim forms were correct. He also claimed that the
clocking system malfunctioned
and had not brought this to the
attention of Pathcare because he thought he could keep proper record
but erroneously failed to
do so. He did not check his payslips for
purposes of establishing whether they had any discrepancies and
reporting them because
his bank notified him through the Short
Message Service (SMS) of the amounts of salaries paid into his bank
account. He acknowledged
having been made sufficiently aware through
e-mails to keep proper records of his attendance schedule which he
interpreted to mean
recording the time he commenced with his work and
when his shift ended.
[17]
It was contended for Pathcare that the
employee’s unmethodical poor defences to the allegations of
misconduct should have
led the commissioner to a conclusion that
Pathcare discharged its
onus
to prove that he was guilty of dishonest conduct.
[18]
With regard to the 13 lunch breaks for
which the employee claimed overtime, the employee testified that he
was unable to provide
explanations for at least 10 of the lunch
breaks and had to generalise in his accounts of the events. He said:
“
After a certain time I wouldn’t
be able to recall exactly hence I did give case scenarios that may
have impacted - that gave
discrepancies to the findings of the
auditor
.”
[19]
The difficulty with the time-related
offence such as the present, when the employee is subjected to
discipline months after the
occurrence of the incidents, is
fallibility of human memory for which he could not be criticised. The
commissioner
was
alive to this. Having had regard to the incoherent and vacillating
manner in which the employee could not sufficiently defend
his
submission of the purported incorrect overtime claim forms, the
commissioner made the observation that he struggled to justify
his
actions.
[20]
One troubling aspect
of the alleged transgression is that nowhere on the record before us
is there any indication that there was
a rule which precluded the
employee from claiming for his lunch breaks. Mr Lennox, for Pathcare,
was hard-pressed to show us the
existence of the rule in issue.
Instead, he referred us to one of the responses by the employee to a
question posed to him during
the arbitration where he said: “
We
[the employee and his Manager] argued until eventually a mutual
agreement was met where I could, where we both agreed on all
overtime
claims over eight hours will be reduced by 60 minutes whether I went
to lunch or not.”
This does not answer the question whether a rule existed prohibiting
claims for the lunch breaks.
[21]
To
a certain extent the commissioner misdirected himself in holding that
Pathcare was confined to proving
whether
the breach of the rule was intentional without enquiring or
establishing whether there were some regulatory mechanisms in
place.
Ordinarily
in terms of the BCEA an employee
must
be remunerated for a meal interval in which the employee is required
to work or is required to be available for work.
[3]
Whether the employee was barred from claiming for the lunch breaks on
the basis of the threshold set by the Minister of Labour
in terms of
the BCEA was also not clarified at arbitration. The commissioner
ought to have found that the employee was entitled
to have been
exonerated from the alleged transgression due to Pathcare’s
failure to establish the existence and infraction
of the rule in
question.
[22]
On the allegation that the employee claimed
overtime at the incorrect rate for July, November and December 2013
it is important
to remember that the employee constantly attributed
this to human error. It was therefore incorrect for Pathcare to argue
that
the finding by the commissioner that the employee made a mistake
was not based on the evidence. Neither can it be contended, as
Pathcare also sought to do, that the commissioner manufactured a
defence for the employee in concluding that his claims were submitted
in the fashion described due to a mistake.
[23]
In
the final analysis, the commissioner determined that the employee did
not act intentionally but was negligent.
A
person will be held negligent where his or her conduct falls short of
the standard of the reasonable person.
[4]
In the workplace context the “reasonable person” would be
the reasonable employee with experience, skill and qualifications
comparable to the accused employee.
[5]
The following salutary reminder in
Mkhatswa
v Minister of Defence
[6]
is instructive:
‘
Whether
or not conduct constitutes negligence ultimately depends upon a
realistic and sensible judicial approach to all the relevant
facts
and circumstances that bear on the matter at hand. What also needs to
be emphasised is that what is required to satisfy any
test for
negligence is foresight of the
reasonable
possibility of harm. Foresight of a mere possibility of harm will not
suffice.’
[24]
In light of the fact that the claim forms
in issue were structured in a way that the overtime rates, that is,
both the hourly and
one and half times rates, were placed in adjacent
columns, the commissioner readily accepted that the employee inserted
his overtime
in the wrong column because the claim forms were not
submitted consecutively. It cannot be said that the commissioner’s
decision that the
employee was negligent is not rationally connected to the evidence.
Clearly, the employee
did not
exercise the degree of care which can reasonably be expected of an
employee in his position of responsibility when claiming
his overtime
at the incorrect rate. The conclusion by the commissioner that he
acted negligently cannot be faulted.
[25]
Turning to the relief
granted by the commissioner, it was contended for Pathcare that the
award of reinstatement was inappropriate
because the employee did not
show any contrition and that his continued employment relationship
with Pathcare had been rendered
intolerable.
[26]
In
a situation where no evidence had been adduced during the trial or
arbitration, as in this case, on the effect of an order or
an award
of reinstatement, the Court or the commissioner should consider all
the factors and circumstances relevant to that form
of relief
including the gravity of the offence committed by the employee.
Equally trite is that
that
dismissal is a penalty of the last resort because of the harsh
consequences it may have on an employee who is dismissed.
[7]
[27]
I
have already concluded that the commissioner’s finding, that
the employee acted negligently in his completion and submission
of
the overtime claim forms, was reasonable.
Pathcare’s
argument that the relationship of trust was damaged beyond any
restoration cannot be sustained. Mr Huebsch could
not comment on
whether the relationship of trust had been broken as he was not the
employee’s manager. He was requested to
read into the
arbitration record what was allegedly said in aggravation of the
sentence during the employee’s disciplinary
enquiry. He then
read: “
The
company cannot continue trusting the employee and the accused has no
regard for Ms Bishop as his manager.
”
This should be viewed in the context of the manager’s e-mail
acknowledging that she and the employee
had
learned a lesson from the incidents and were ready to move forward
[8]
which, in my view, is a clear indication that continued employment
relationship had not been rendered insufferable.
[28]
What is also relevant
here is that, a
pparent from the
record of the disciplinary hearing, the employee had a clean record.
On the basis of my conclusion that the commissioner
ought to have
exculpated him from the allegation that he claimed for lunch breaks,
the award of reinstatement is compellingly inescapable.
Having
regard to the nature of the offence he committed, I am of the view
that, this is a case where a system of graduated discipline,
through
warnings, would have sufficed.
[29]
The commissioner cannot be faulted in
having concluded that the offence did not merit the sanction of
dismissal. His finding that
no evidence of “irrevocable breach”
was adduced is unassailable. I am unpersuaded that he exceeded his
powers or that
he did not exercise his discretion properly. The
Labour Court correctly found no basis to upset the commissioner’s
assessment
of the fairness of the disciplinary sanction. Th
e
award of retrospective reinstatement with a written warning valid for
a period of 12 months for negligence was reasonable in the
circumstances of this case.
[30]
In
conclusion, awards should not be easily interfered with unless the
decision was entirely disconnected with the evidence or is
unsupported by any evidence and involves speculation on the part of
the commissioner.
[9]
This is not
the case here.
In
the end, the test is whether the decision arrived at by the
commissioner is one that a reasonable commissioner could have
reached.
In my view, on the available material, it was.
The
Labour Court’s conclusion that the arbitration award was not
susceptible to review is above reproach.
[31]
Something must
be said about the substandard manner in which the record of this
appeal had been prepared and presented to us. The
documents referred
to in the transcript of the proceedings are not cross-referenced to
any of the documents that form part of the
record. The documents that
served before the CCMA are not contained in any of the three volumes
forming the record of this appeal.
Instead, a separate bundle, which
is not paginated, headed “Disciplinary hearing” forms
part of the record making it
difficult to align this to what was
traversed before the commissioner. This is unacceptable and deserving
of censure.
[32]
Lastly,
Pathcare submitted as one of its ground of appeal that the Labour
Court ought not to have granted costs against it in the
review. This
ground was not enthusiastically pursued. In any event, in awarding
costs against a party, the Labour Court
exercises
a discretion
according to the
requirements of law and fairness which should not be easily
interfered with on appeal
.
There appears to be no reason to upset that cost order. In respect of
the costs of this appeal, I am satisfied that the requirements
of law
and fairness dictate that they should follow the result. I make the
following order:
Order
1.
The appeal is
dismissed with costs.
_________________________
MV Phatshoane
Acting
Deputy Judge President - The Labour Appeal Court
Sutherland
and Murphy JJA concur in the judgment of Phatshoane ADJP
APPEARANCES:
FOR THE APPELLANT:
Adv Lennox
Instructed by Snyman
Attorneys
FOR THE FIRST AND
SECOND RESPONDENT:
Adv L Myburgh
Instructed
by Greenberg & Associates.
[1]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531 (A); [1962] 4 All SA 442 (A).
[2]
See
section 10(2)
of the
Basic Conditions of Employment Act, 75 of
1997
.
[3]
See
section 14(3)(a)
of the
Basic Conditions of Employment Act, 75
of 1997
.
[4]
South African Criminal Law and Procedure Vol 1 -Jonathan Burchell
(Jutastat/e-publications) 4th Ed, 2011 ch2-p57.
[5]
John Grogan- Workplace Law (Jutastat/e-publications) 12th Ed, 2017,
ch 12-p 237-238.
[6]
2000 (1) SA 1104
(SCA) at 112H para 23.
[7]
Transport
& Allied Workers Union of SA on behalf of Ngedle and Others v
Unitrans Fuel & Chemical (Pty) Ltd
(2016) 37 ILJ 2485 (CC) at 2539 para 173.
[8]
The e-mail in question does not form part of the record. However,
reference is made thereto in the parties’ heads of argument,
the arbitration award and the Judgment of the Labour Court. It was
undisputed at arbitration that the employee’s manager
wrote an
e-mail to that effect- it is also not clear from the record to whom
this e-mail was addressed to.
[9]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013) 34 ILJ 2795 (SCA) at 2802 para 13.