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[2005] ZALCJHB 3
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Riekert v Commission for Conciliation Mediation And Arbitration and Others (JR686/03) [2005] ZALCJHB 3 (28 September 2005)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JR686/03
In
the matter between:
FRANCOIS
WILHELM RIEKERT
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
M
S RAFFEE
N.O. Second
Respondent
EMERALD
SAFARI RESORT AND CASINO (PTY) LTD Third
Respondent
JUDGMENT
Nel,
AJ
1.
This is an application for review in terms
of Section 145 of the Labour Relations Act of an award issued by the
Second Respondent
("the Commissioner") wherein he found
that the Applicant's dismissal was both procedurally and
substantively fair.
2.
In this matter the Third Respondent
suspended the Applicant on 17 January 2002. On 19 January 2005,
the Applicant was notified
of a disciplinary enquiry to be held on 22
February 2002. The disciplinary notification in part read as
follows:
"Alleged offence
details.
Gross misconduct in that you have:
(1)
Gained access to management drawers
without authorisation.
(2)
Undermining of the good relations of company management
.
Date of alleged offence:
(1)
On or about the 3
rd
December 2001
."
3.
The disciplinary enquiry was held on 22
February 2002. On 28 February 2002, the chairperson of the
enquiry, Mr Kaipa, advised
the Applicant that he had been found
guilty of both the offences he had been charged with. After the
parties addressed the
chairperson on mitigating and aggravating
circumstances, a sanction of dismissal was imposed. The Applicant
thereupon referred
a dispute to the First Respondent and when the
dispute remained unresolved, it was referred to arbitration before
the Commissioner.
The arbitration lasted six days and Mr. William
Kaipa, Mr. Flannagan Brown (the investigator and initiator at the
disciplinary
hearing), Messrs. Steven Mawonga, Deon Basson and Martin
Rice testified on behalf of the Third Respondent. The Applicant,
Mesdames
Annelise Minnie, Trix Barnard
and
Mariette Oberholzer (a polygraph expert) testified for the Applicant.
PROCEDURAL
FAIRNESS
4.
The Third Respondent has a very extensive
disciplinary procedures code. The Commissioner dealt with this
in the following
terms in his award:
"
(3)
The Applicant's representative attacked the internal procedure
relating specifically to the Respondent's disciplinary
code and
procedure. The Applicant's representative threw the book at the
Respondent concerning none (sic) compliance of its
internal
disciplinary code. The following were all the points raised by
the Respondent (sic) concerning its attack, which
are as follows:
(a)
Any process that does not meet the
requirements of a fair procedure will not be acceptable. It may
be argued that in certain
severe cases managers may use a procedure
that does not conform to all three legs of the fair procedure.
This would be extremely
rare and may only be done (with the) express
permission of senior management.
(b)
An employee must be put in a
position to defend himself or herself at every stage of the process.
(c)
That the process of an investigation
should be (tied) up within a few days and further that the whole
investigation should not take
more than two days.
(d)
Disciplinary action must commence
within a reasonable time after the offence has been committed.
(e)
That the procedure must stipulate
specific time limits for dealing with disciplinary problems so that
tensions may be prevented
from escalating.
(f)
That the investigator should open a
case file which would be used for a (sic) record keeping purposes
during investigation and where
all relevant information statements
and preparation are kept.
(g)
A suitable and impartial chairperson
should deal with a case it depends on the complexity.
(h)
Allegations against an employee must
be clear enough in order for an employee to know the case that he
will have to defend.
(i)
In addition to the notice of enquiry
the employee should be given copies of any statement and the employee
should be allowed to
view any other evidence in the Respondent's
presence.
(j)
Failure by the investigator to
present the relevant evidence to the witnesses may lead to a
dismissal of the case on the basis of
insufficient evidence.
(k)
That the Respondent must ensure that
a minute taker should be organised and the minute taker must read the
guidelines for minute
taking.
(l)
Written reasons for the penalty will
be given by the chairperson.
(m)
In practice the appeal may take
place after the referral to the CCMA.
(n)
No reliance can be place(d) on
statements which had not been introduced at the hearing.
(o)
An employee will have the right to
call its (sic) own witnesses.
(p)
It is imperative that accurate
records of any procedures are maintained and furthermore that
employees are entitled to a copy of
the minutes which must fairly
reflect the contents of the proceedings.
(q)
The findings must be substantiated
on the evidence presented and minuted and not on a gut feel.
(r)
It is the chairperson’s duty
to ensure that the minutes are correct and that the employer had a
copy thereof and then refer
all documentation to the HR Department.
(s)
No employee may be dismissed except
by the authority of the Department Head and then only after
consultations with the HR Department.
"
5.
The Commissioner then proceeded to
specifically deal in his award with each of these parts of the book
which he held the Applicant
had thrown at the Third Respondent. He,
correctly, I believe, concluded that in respect of paragraphs (a),
(b), (g), (h), (j),
(m) and (n) there was no evidence to suggest that
the Third Respondent had not complied with the requirements of these
paragraphs.
6.
The Commissioner then dealt specifically
with paragraphs (c), (d) and (e) of the above stated requirements of
the Third Respondent’s
disciplinary code, which in essence
dictate that disciplinary action must be instituted within a
reasonable period of time.
The Commissioner then dealt with the
case of
Leonard Dingler (Pty) Ltd v
Ngwenya
[1999] 5 BLLR 431
(LAC)
.
It would appear as if the Commissioner referred to this and other
authority in support of his view (which he did not specifically
state, but which I deduct he intended doing) that disciplinary codes
are guidelines to be applied in a flexible manner and that
whilst
employers are generally required to follow agreed disciplinary
procedures, failure to do so does not necessarily render
a dismissal
unfair. I also accept that the Commissioner intended to convey
his thinking in line with that of Kroon JA where
he, in the Leonard
Dingler case, with approval referred to Le Roux & Van Niekerk’s
The Law of Unfair Dismissal in South
Africa
and
National
Education Health & Allied Workers Union v Director-General of
Agriculture & another (1993) 14 ILJ 1488 (IC) at
1500
where
it was stated that:
"….
the
purpose of the Labour Relations Act of 1956 was the promotion of good
labour relations by way of striking down and remedying
unfair labour
practices. To that end a strictly legalistic approach should
yield to an equitable, fair and reasonable exercise
of rights; and
insistence on uncompromising compliance with a code, to substantial
fairness, reasonableness and equity.”
Kroon
JA went on to say:
“
In
my judgment, and having regard to the all the circumstances, the time
when and the manner in which the appeal hearing was held,
while not
strictly in accordance with the Appellant's disciplinary code, were
substantially fair, reasonable and equitable.
"
7.
It is not clear from the Commissioner's
award what circumstances, and what times of alleged misconduct he had
regard to in coming
to his conclusion that the requirements of
procedural fairness were substantially fairly, reasonably and
equitably complied with
by the Third Respondent.
8.
Nor does one see from the Commissioner's
reasoning whether he took into consideration at all the time period
which, based on the
Third Respondent’s own evidence, it took
the Third Respondent until it held its disciplinary enquiry into the
Applicant’s
alleged misconduct.
9.
Likewise, one does not see from the
Commissioner's award whether he had any regard whatsoever for the
manner in which the enquiry
was held, with specific reference to:
9.1
the keeping of minutes and the giving of
written reasons for the penalty by the chairperson;
9.2
the fact that the Third Respondent’s
disciplinary code regarded it as imperative that accurate records of
any procedures were
to be maintained and that employees were entitled
to a copy of the minutes, which must fairly reflect the contents of
the proceedings;
9.3
the fact that it was the chairperson's duty
to ensure that minutes are correct and that the employer had a copy
thereof and that
all documentation be referred to the HR department.
10.
It is further apparent that the
Commissioner did not in his award deal with two of the specific
requirements stipulated in the Third
Respondent's code namely that
the finding of the internal disciplinary enquiry must be
substantiated on evidence presented and
minuted at the enquiry and
not just on gut feel as well as the further requirement that no
employee may be dismissed except by
the authority of the department
head and then only after consultation with the HR Department.
11.
I will deal with all of the above in more
detail later herein.
12.
During argument I was referred to the
Applicant's contract of employment and more particularly the
following paragraph contained
therein:
"
Given the
company's involvement in the sensitive industry of gaming, strict
adherence to all Company, and Gaming Board rules, Regulations
and
Procedures is required of every employee and is a condition of
employment. The highest standards of confidentiality and
behaviour are expected of all staff. It is the employee's
responsibility to be aware of all the aforementioned rules and
regulations.
"
13.
Ms Erasmus, appearing for the Applicant,
submitted that adherence to company rules, based on this part of the
Applicant’s
contract, was accordingly made part of his
contract. In this regard she referred me to the case of
Denel
(Pty) Ltd vs Vorster
[2005] 4 BLLR 313
(SCA)
.
In the Denel case, the court noted that the procedures the employer
was required to follow before dismissing an employee
was set out in a
disciplinary code, which was expressly incorporated in the employer's
contract of employment. Nugent JA
stated the following at page
318(I):
"
The procedure
provided for in the disciplinary code was clearly a fair one - it
would hardly be open to the Appellant to suggest
that it was not –
and the respondent was entitled to insist that the Appellant abide by
its contractual undertaking to apply
it. It is no answer to say
that the alternative procedure adopted by the Appellant was just as
good.
"
14.
I am of the view that the Applicant herein
was entitled to insist that the Third Respondent abide by its
contractual undertaking,
namely to comply with its disciplinary code
and procedure. I believe the Third Respondent failed to do so.
However,
that is not the issue herein. Rather, the question is
whether the Commissioner was justified in his conclusion that the
Third Respondent’s
conduct was procedurally fair
notwithstanding the fact that it did not comply with all the terms of
its own disciplinary code and
procedure. (The Third Respondent
conceded both at the arbitration and before me that it had not
complied in every respect with
its own disciplinary code).
15.
In considering this question (whether
despite non-compliance with some aspects of its disciplinary code,
the Third respondent nevertheless
acted procedurally fairly) I
believe a more appropriate, and relevant, authority which I was
referred to by Ms Erasmus is the case
of
Black
Mountain vs CCMA & Others
[2005] 1 BLLR 1
(LC)
.
Mr Cook argued before me that this case is distinguishable from the
present one before me as, what was in issue in the Black
Mountain
case was the application of the employer's Standard Procedure for
Alcohol and Drug-related Behaviour policy. Mr
Cook accordingly
argued that if an employer has such a policy, in conjunction with its
disciplinary code, that policy must be applied
and can not be
overridden by the employer’s disciplinary code. He argued that
in the present matter I was not dealing with
a separate policy that
had been breached, but only with the question of compliance with the
Third Respondent’s disciplinary
code, which he said was only a
guideline. Accordingly, so he argued, although the Third Respondent
had admittedly not complied
with every term of its own code, as the
code was only a guideline, the Commissioner had correctly concluded
that, notwithstanding
breaches by the Third respondent of it’s
own disciplinary code, it had nevertheless acted procedurally fairly.
16.
In the Black Mountain case, like in this
matter, the employer argued that the status of a disciplinary code is
that of a guideline
not requiring slavish adherence. With reference
to the cases the employer's representative cited in support of this
proposition
(at page 7 G – H of the Black Mountain judgement),
Murphy AJ commented that the matters referred to all dealt with
relatively
minor departures from procedural aspects of the prevailing
disciplinary code such as the failure of the chairperson to appoint a
prosecutor on appeal or the appointment of a presiding officer not
strictly in accordance with the prescribed guidelines. Murphy
AJ went
on to say that“……….
Where
the employer's disciplinary code and policy provide for a particular
approach it will generally be considered unfair to follow
a different
approach without legitimate justification. Justice requires
that employers should be held to the standards they
have adopted.
(see
Changula vs Bell Equipment
(1992) 13 ILJ 101 (LAC)
and
SA
Clothing and Textiles Workers Union & Another vs Martin Johnson
(Pty) Ltd (1993) 14 ILJ 1033 (LAC)
).
”
I fully associate myself
fully with these sentiments of Murphy AJ.
17.
In considering the Commissioner's finding
that the breaches by the Third Respondent of its own procedure did
not render the dismissal
procedurally unfair, I am very mindful of
the fact that, in determining whether this finding is justifiable in
terms of the reasons
given for it, I will be making value judgments
which involve the considering by me of the merits of the matter.
I am also
aware that I am entering the merits not in order to
substitute my own opinion on the correctness thereof for that of the
Commissioner,
but only for the purpose of determining whether the
Commissioner's finding that the Third Respondent's dismissal was
procedurally
fair is justifiable in terms of the reasons given for
it.
18.
In considering the evidence before the
Commissioner relating to his finding that, notwithstanding
non-compliance with every aspect
of its disciplinary code, the Third
Respondent’s acted procedurally fairly, I considered the
following:
18.1
that the conduct complained of relating to
undermining of management commenced in July 2001 (and in respect of
which the evidence
was that Mr. Coertzen was involved in).
18.2
the witness Annelise Minnie testified that
she already in July 2001 brought to Mr Basson’s attention what
Coertzen was doing
(relating to undermining of management).
18.3
Mr Basson's evidence was that two employees
(Annalise Minnie and Trix Barnard) had told him from September to
December 2001 that
the Applicant was part of this alleged conspiracy.
18.4
on the Third Respondent’s own version
of events, it knew of the Applicant’s alleged involvement in
conduct undermining
of its management since September to December
2001. (I hasten to mention that this evidence of Basson’s was
directly contradicted
by these witnesses who, when they were not
called by the Third Respondent, were called by the Applicant. They
denied that they
had ever implicated the Applicant in any undermining
of management, but only Mr Coertzen.)
18.5
the Applicant made his first written
statement (on which the Third Respondent so heavily relied at the
enquiry) on 29 December 2001,
his supplementary one on 12 January
2002 and his interview with Mr Flannagan Brown on 17 January 2002.
The Applicant was brought
before a disciplinary enquiry on 22
February 2002.
18.6
at best for the Third Respondent, the
latest that the alleged misconduct of the Applicant occurred was on
or about 11 December 2001.
This particular conduct complained of was
a simple matter of the Applicant allegedly having gained access to
management drawers
without consent.
18.7
the fact that no statements were taken from
the witnesses who on the Third Respondent’s version implicated
the Applicant with
having conspired against the Third respondent’s
management, (and in this regard there were also contradictions
between these
two witnesses on the one hand and Basson on the other,
with Basson alleging that they had given statements implicating the
Applicant
and these witnesses, called by the Applicant, denying ever
having done so. Their statements, handed in by the Third Respondent’s
representative at a late stage of the arbitration, when the witnesses
were testifying on behalf of the Applicant, contained no
allegations
against the Applicant).
18.8
the evidence of the Applicant that he was
denied the opportunity to call his witnesses, and the contradictions
between the evidence
of Brown and the Chairman of the disciplinary
enquiry on this issue.
18.9
the fact that the Third Respondent did not
provide convincing evidence that there was compliance with the
requirement that no employee
may be dismissed except by the authority
of the department head and then only after consultations with the HR
Department.
18.10
in many instances questions posed to the
Third Respondent's witnesses during the arbitration could not be
answered by the witness,
or were answered in an unsatisfactory
manner. Mr Kaipa could, for example, not indicate why he had made
certain decisions during
the enquiry. No minuted evidence was
produced on which he based his findings. (I believe this was to a
large extent, if not entirely,
because no proper minutes and records
of the disciplinary proceedings had been kept, from which all parties
could then refresh
there memories, and which could be used as a
legitimate source for leading and cross examining witnesses).
18.11
the HR Manager conceded that minutes of the
disciplinary enquiry had to be kept. No such minutes were handed in
at the arbitration.
18.12
the requirement in the Third Respondent's
disciplinary code that the investigator should open a case file which
would be used for
record keeping purposes during investigation and
where all relevant information, statements and preparation are kept.
No such file
was presented at the disciplinary enquiry. Mr
Brown could not give an answer if such file existed. (As stated
above,
the vagueness of the evidence of many of Third Respondent's
witnesses during the arbitration, particularly relating to dates when
the alleged incidents occurred, as well as with reference to the
vagueness as to which employees were allegedly involved, can,
I
believe, be directly attributed to the non-compliance by the Third
Respondent with this aspect of its own disciplinary enquiry).
18.13
the Third Respondent's disciplinary code
requires that an employee should be given copies of any statement and
should be allowed
to view any other evidence in the Respondent's
presence. This was not done. Basson testified that he, as well as the
employees
(Annelise Minnie and Trix Barnard) had made statements,
(which was later testified by them only related to Mr Henk Coertzen).
These
statements were not given to the Applicant. In fact, Minnie and
Barnard’s statements were only at a very late stage of the
arbitration proceedings handed to the Applicant’s
representative.
18.14
the requirement that no employee may be
dismissed except by the authority of the Department head, and only
after consultation with
the HR department, is a very express
requirement, clearly intended to ensure a procedurally and
substantially fair process.
(Whether Third Respondent complied
with this particular rule in its disciplinary code is as clear as mud
having regard to the evidence
of the various witnesses on this issue.
The Commissioner does not specifically deal with this issue. It is
therefor not known whether
he found that it did happen. I do not
believe that the Commissioner could justifiably have concluded that
there was compliance
with this part of the Third Respondent’s
disciplinary code).
18.15
Ms Minnie testified that Mr Basson had
already in December 2001 advised her that five employees would lose
their jobs and that one
of them was the Applicant. (If the
Applicant’s dismissal was, at least as far as Basson was
concerned, such a foregone conclusion,
why did the disciplinary
enquiry only take place on 22 February 2002?)
18.16
the Third Respondent gave some reasons for
the delay in instituting the disciplinary enquiry. These reasons had
to be assessed against
the time the alleged conspiracy was first
brought to the Third Respondent’s attention (July 2001) and
again from September
to December 2001. The simplicity of the
allegation that the Applicant had removed documents from a management
drawer (which he
was charged with happened on or about 3 December
2001) also clearly had to be weighed. Viewed against these facts, the
reasons
tendered by the Third Respondent for the delay in taking
disciplinary action against the Applicant are unpersuasive and
unacceptable.
18.17
no justification whatsoever was shown by
the Third Respondent for not having complied with a number of the
specific requirements
of its disciplinary code.
19.
These
are in the main the factors which, if properly considered, I believe
drives one to the ineluctable view that the Commissioner’s
conclusion (that the non-compliance by the Third Respondent with its
own procedure did not render its conduct procedurally unfair)
is not
justifiable in terms of the reasons given for that conclusion.
20.
A further aspect, which I also considered
in relation to the question whether the Commissioner was justified in
his conclusion that
the Third respondent had acted procedurally
fairly, relates to whether the Applicant was prevented from calling
his witnesses,
as he alleged. The Commissioner, correctly, states
that the right to call witnesses is fundamental to all proceedings.
Mr Brown,
the so called initiator at the disciplinary enquiry, and Mr
Kaipa, the chairperson of the disciplinary enquiry, contradicted each
other in respect of the material issues surrounding the question
whether the Applicant was allowed to call witnesses. Mr
Brown,
under cross-examination, testified that the Applicant's witnesses had
to be present and that the disciplinary hearing could
not be
postponed. Mr Kaipa, on the other hand, denied that there was
any such suggestion from Mr Brown. It would appear
as if the
initiator, and not the chairperson, controlled the process. The
Commissioner does not deal with these contradictions
at all. The
Applicant, on the other hand, was adamant that he was refused the
opportunity to call his witnesses. He testified at
the arbitration
that he was not allowed the opportunity to call his witnesses as he
was told that he was not allowed a short adjournment
to call them.
This allegation is in part supported by what Brown testified at the
arbitration, although he (Brown) denied that
the Applicant was denied
the right to call his witnesses. The Commissioner does not deal with
this at all. He only looks at the
Applicant’s credibility in
regard to this particular issue and he comes to the conclusion that
there are no convincing facts
that the Applicant was barred from
calling witnesses. The Commissioner clearly did not consider the
evidence of Brown and Kaipa
at all in this regard and did not apply
his mind properly to this aspect of whether the Applicant was denied
the right to call
witnesses. I find this a particularly serious
omission in light of the fact that the Third Respondent's witnesses
contradicted
each other in this regard. The Commissioner’s
conclusion in this regard is not reasoned, and I find them not
justified. This
in and by itself renders the Commissioners award
reviewable.
21.
Having regard to the paragraph extracted
from the Applicant's contract of employment referred to above, the
Third Respondent has
clearly set for itself very particular standards
in its disciplinary code which as the code itself states "
is
a necessary basis for establishing guidelines of substantive
fairness, an agreed procedure ….. required to ensure that
discipline is administered in a consistent and procedurally fair
manner.
" As stated, no acceptable
grounds or justification were shown by the Third Respondent why it
could not strictly comply with
its own disciplinary code in the
present case. The Third Respondent also did not show any, or good,
cause why it should, under
the circumstances relating to the present
case, have been allowed not to comply with its own code. It is
apparent that the specific
environment in which the Third Respondent
operates is one where it deemed it necessary to have a very detailed
and specific disciplinary
code, setting very express requirements
that have to be complied with.
22.
I am in agreement with the proposition that
disciplinary codes are guidelines and that an employer will not
necessarily be regarded
as having acted procedurally unfairly if it
did not comply with certain specific parts of its code. I do not
believe that the fact
that there is clear case law to the effect that
disciplinary codes are guidelines can under any circumstance be
understood by employers
as meaning that they may chop and change the
disciplinary procedures they have themselves set as and when they
wish. Employees
(and employers) are entitled to expect that their
employers (and employees) will comply with the prescribed rules of
the game as
far as disciplinary enquiries go (and for that matter, as
far as all rules set in the workplace, for both employers and
employees,
are concerned). When an employer does not comply with
aspects of its own disciplinary procedures, there must be good reason
shown
for its failure to comply with its own set of rules. An
employer must justify the non-compliance with its own code and,
having
regard to all the relevant circumstances, the employer bears
the onus to satisfy the objective requirement that their conduct was
substantially fair, reasonable and equitable.
23.
Having regard to all the above, I am
satisfied that the Commissioner failed to properly apply his mind to
the evidence on which
he was obliged to focus relating to the
determination whether the Third Respondent acted procedurally
fairly.
24.
In the absence of good cause having been
showed by the Third Respondent why it should be allowed to have
deviated from its own disciplinary
code and procedure, and having
specific regard to all the factors I have mentioned above (many of
which it is apparent the Commissioner
did not apply his mind to at
all, or properly), I am satisfied that there is not a rational and
objective basis justifying the
connection made by the Commissioner
between the material properly available to him and the conclusion he
eventually arrived at
that the Third Respondent acted procedurally
fairly in dismissing the Applicant.
25.
Having regard to all the circumstances
relevant herein, such as:
25.1
the
time when certain misconduct came to the Third Respondent’s
attention;
25.2
its delays in taking disciplinary action
against the Applicant;
25.3
the failure by the Third Respondent to do a
number of things its code expressly required it to do and which I
referred to above;
25.4
the manner in which Brown, for example,
investigated the matter and particularly his failure to open an
investigation file, his
failure to take statements from witnesses and
to show statements to the Applicant;
25.5
the manner in which the Third Respondent
conducted the disciplinary enquiry into the alleged misconduct of the
Applicant and the
number of failures surrounding the actual enquiry,
such as the failure to keep proper minutes, and the apparent failure
to consult
the HR department before dismissing the Applicant,
I find that the Third
respondent acted procedurally unfairly in respect of the disciplinary
action it instituted against the Applicant.
SUBSTANTIVE
FAIRNESS
26.
Turning to the question of substantive
fairness, it is clear that the only evidence adduced by the
Respondent before the disciplinary
enquiry, as well as during the
arbitration, in respect of the Applicant "
undermining….
the good relations of company management
"
was in effect the Applicant's own written statements which he had
made on 29 December 2001 and later on 12 January 2002,
as well as the
transcript of the interview Brown held with the Applicant. In
addition, there is also Mr. Basson’s evidence
that the
Applicant, in addition to these written statements, had “
verbally
explained to (him) also that he was part of the conspiracy”
- which the Applicant in turn denied when he testified.
27.
Mr. Basson did not tender any direct
evidence in this regard. He only gave hearsay evidence that
employees, who he said had
the guts to come forward, warned them
against the Applicant and Mr. Henk Coertzen. Basson testified that
these employees told him
that the Applicant was part of this
conspiracy (presumably to undermine the Third Respondent’s
management). Basson testified
that employees Barnard and Minnie had
made full written statements implicating the Applicant and that these
witnesses would be
called and that the written statements would be
provided during the course of the arbitration. The Third
Respondent did not
call these witnesses, nor did it produce their
statements. When the Third Respondent did not call these
witnesses, the Applicant
did and they very specifically contradicted
Mr. Basson's evidence in a number of very relevant respects. They
expressly denied
that they had ever implicated the Applicant as being
part of a conspiracy against, or undermining of, the Third
Respondent’s
management or that they had deposed to statements
to that effect. The Commissioner does not deal with this clear and
relevant aspect
of the evidence at all.
28.
Such statements as these employees did
depose to (and which the Third Respondent only made available when
these witnesses testified
on behalf of the Applicant) did not reflect
that they implicated the Applicant at all. In addition, these
witnesses testified
that, when they gave evidence at the disciplinary
enquiry of Mr Henk Coertzen, the Applicant did not even feature.
One finds
it very strange that, where the conduct of which the
Applicant is accused of involved discussions with Mr Henk Coertzen,
the Applicant
is not even mentioned by witnesses during Coertzen's
disciplinary enquiry.
29.
The list of questions grows. Why were
proper minutes not held of the enquiry? Why was there no clear
evidence that the chairperson
of the disciplinary enquiry consulted
the HR department before terminating the Applicant’s
employment? Why were no
witnesses called to give direct
evidence about the Applicant undermining the Third Respondent’s
management, which direct
evidence Basson alleged the Third Respondent
had (in the persons of Barnard and Minnie at least)? Why was the
Applicant called
as a witness in Coertzen’s disciplinary
enquiry, but Coertzen does not testify against the Applicant and no
explanation (such
as that he was a hostile witness, for example) is
tendered why Coertzen was not called.
30.
This all must be considered, and answered,
against the background that the two employees who Basson testified
had told him that
the Applicant had undermined the Third Respondent’s
management, and who could (perhaps should) have given direct evidence
on the Third Respondent’s behalf, were not called by the Third
Respondent. We do not need to speculate why they were not
called.
When the Applicant called them, they expressly testified that they
had only made statements to the effect that Coertzen,
and not the
Applicant, had undermined the Third respondent’s management.
When these witnesses got into the witness box, they
did not confirm
Mr Basson’s hearsay evidence that these employees had told him
the Applicant had conspired (presumably against
the Third
Respondent’s management). They contradicted Mr Basson in this
specific regard (that the Applicant had undermined
or conspired
against the Third Respondent) and expressly testified that they had
only implicated Mr Coertzen in that regard. The
Commissioner about
this evidence utters no word. He clearly did not apply his mind
thereto at all.
31.
Basson testified that, after the two
employees (Minnie and Barnard) had advised him that the Applicant was
part of a conspiracy
(presumably against the Third Respondent’s
management) he deposed to a written statement. This statement of his,
Basson conceded,
did not even mention the Applicant at all, only Mr
Henk Coertzen. When confronted with this in cross examination, Mr
Basson said
that the reason why he did not mention the Applicant’s
name was that he was hoping to have the Applicant on their
(presumably
management’s) side to testify against Mr Coertzen.
32.
The Applicant's written statements
(referred to above) do not in my view warrant the conclusion arrived
at by the disciplinary enquiry,
nor by the Commissioner, that it is
proof of the Applicant having “
Undermin(ed)…
the good relations of company management
.”
33.
The Commissioner does not, in my opinion,
provide any reasons for his conclusion that the evidence before him
justified his decision
that the Applicant was correctly found guilty
of undermining the good relations of the Third Respondents
management. In fact,
I will go further, a perusal of the
evidence which was presented before the Commissioner, does not
provide any basis, whatsoever,
for this conclusion, namely that the
Applicant was correctly found guilty of undermining the good
relations of the Third Respondent’s
management.
34.
It is patently clear from the evidence
before the Commissioner that Mr Brown, in the disciplinary enquiry,
(and in the arbitration)
relied exclusively on the Applicant's own
written statements for his allegation that the Applicant was guilty
of undermining the
good relations of the company's management. It
appears that the chairperson of the disciplinary enquiry also relied
on the Applicant’s
written statement for his conclusion that
the Applicant was guilty of undermining the good relations of the
company's management.
35.
Mr Brown, with reference to the Applicant’s
written statements and/or the interview Brown had with the Applicant,
came to
conclusions in his evidence before the Commissioner which is
not supported by these written statements or the transcript of the
interview Brown had with the Applicant. For example, Brown testified
that the Applicant said he was involved in “
complotting
against Management”.
This is not
supported by any of the Applicant’s statements. Brown testified
(with reference to the interview – which
was tape recorded and
transcribed) that, during the interview, the Applicant admitted to
breaking into the drawer. This is simply
not true.
36.
It appears as if the high water mark of the
Third Respondent’s complaint against the Applicant is that,
having thought that
Coertzen was undermining the Third
Respondent’s management, the Applicant did not advise
management thereof.
37.
It is not clear from the Commissioner's
reasons at all what he relied on to come to the conclusion that the
Applicant was guilty
of "
undermining….
the good relations of company management
".
Fact of the matter is that, save for the Applicant’s own
statements, made to the Third Respondent in writing, his
tape
recorded interview with Brown, the mentioned evidence of Mr Basson
that the Applicant “
verbally
explained to (him) also that he was part of the conspiracy”
(which the Applicant did not admit) and
the hearsay evidence of employees testified about by Basson as
implicating the Applicant,
(which these employees emphatically
denied), there was no direct evidence whatsoever of the Applicant
having undermined the good
relations of the Third Respondent’s
management. His written statements and the transcript of the
interview disclose discussions
he had with Coertzen, but I am
satisfied that what is contained in the Applicant’s written
statements does not, in and by
itself, warrant the conclusion that
the Applicant was guilty of undermining the good relations of the
company's management. There
is simply no direct evidence in support
of this conclusion.
38.
Nickelson JA in
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry vs Kapp & Others
[2002]
6 BLLR 493
(LAC)
at paragraph 58 stated
that:
"…
the
arbitrator must have applied his mind seriously to the issues at hand
and reasoned his way to the conclusion. Such conclusion
must be
justifiable as to the reasons given in the sense that it is
defensible, not necessarily in every respect, but as regards
the
important logical steps on the road to his order.
"
I associate myself fully
with this statement of Nicholson JA.
39.
In respect of the alleged misconduct of the
Applicant of “
undermining the good
relations of company management
”,
I do not find any evidence of the Commissioner having applied his
mind seriously, properly, or at all, to this particular
issue. Nor do
I find the Commissioner having reasoned his way properly to his
conclusion. Such conclusion as he has reached, I
do not find
justifiable, neither as to the reasons given, nor do I find it
justifiable in any respect. I do not believe the
Commissioner
applied his mind properly, or at all, to this aspect of the matter
before him. The Commissioner dealt with the Applicant’s
evidence extensively in so far as it related to procedural fairness.
In relation to the question as to whether the Applicant was
guilty of
the misconduct he was charged with, one does not see the Commissioner
dealing with the evidence of the Applicant at all,
save to state that
“
The Applicant has not been open
and frank in his evidence.”
It
certainly on the face of his award appears as if the Commissioner
ignored the Applicant’s version of events.
40.
On the substantive fairness of the
dismissal it is perhaps also to be noted that Mr Kaipa testified
that, if the Applicant had not
been found guilty of the removal of
the document from the drawer, his decision would have been
different. I understand this
part of his evidence to be that,
if the Applicant had only been found guilty of the charge of having
undermined management, he
would not have been dismissed.
41.
Having considered all the evidence before
the Commissioner, I am of the view that the Applicant was wrongly
found guilty of “
undermining the
good relations of company management
”.
That is not however the end of the matter.
42.
I accordingly turn to deal with the other
alleged misconduct of the Applicant namely that he had gained access
to the (Third Respondent’s)
management drawers without
authorisation. In this regard, in essence, the Commissioner had
a single witnesses before him
who testified that the Applicant had
blatantly forced open the drawer in question in front of him and
removed the confidential
document. Not only did the Applicant,
according to this witness, do this openly in front of him, but the
Applicant, according
to Mr. Mawonga compounded the position by
actually making a copy of the document and handing it to the witness,
Mr Mawonga.
43.
Corroboration for this single witness could
be argued was to be found in the evidence of Brown that Mawonga had
presented this confidential
document to him. Mawonga, however,
contradicted himself as to when he had allegedly given this document
to Brown. Initially,
during his evidence in chief, Mr. Mawonga was
very clear and adamant in his evidence that he phoned Brown the next
morning (after
he had been given the statement by the Applicant) and
that Brown agreed to meet him at 09H00 that same morning. He duly met
Brown
and told him of the document and handed it over to Brown. Under
cross examination, Mawonga testified that it could have been the
following day or after three to four days that he called Brown. Then
he testified that he did call Brown the next day, but that
he could
have handed him the documents three or four days later. Brown's
evidence in this regard was also not clear in every respect.
Particularly as it related to the date on which the Applicant
allegedly had removed the document. The charge against the Applicant
was that (he had removed the document) ”on or about 3 December
2001”. It was only after it was pointed out in cross
examination to witnesses that the document which allegedly had been
removed without authority ”on or about 3 December 2001”
referred to events on 5 and 6 December 2001, that the evidence of
both Brown and Mawonga started becoming vague, and in some respects
not corroborating of each other.
44.
Regarding the allegation that the Applicant
had removed a document from Mr Basson's drawer on or about 3 December
2001, it is also
relevant to note that only when it was pointed out
to Basson that this statement could not have been removed on 3
December 2001
because the document contained references to events on
the 5
th
or 6
th
of December 2001, did Mr Basson testify that it could have happened
later. Here, again, one reverts to the impact of the
absence of
a properly documented investigating file with written statements from
the witnesses. Mr Brown testified that the
date when the
Applicant removed the statement was not relevant. He tried to say
that the “on or about 3
rd
December” made provision for some leeway in respect of the
actual date, but he nevertheless confirmed that he had taken notes
while getting evidence. Again these notes and statements were not
produced. In this regard Brown later testified that he made notes
in
his mind! Of course, even more relevant is that, on Mr Brown's own
version, Mr Mawonga had handed him the statement very soon
after the
date. As stated, this incident is one that did not require the
length of time it took to finally bring the Applicant
before a
disciplinary enquiry. It could, and should, have been dealt
with in terms of the Third Respondent's disciplinary
code and
particularly the time periods stipulated therein. The delay in
instituting disciplinary action in respect of this
simple allegation
is inexcusable. Mr Mawonga testified that he phoned Mr Brown the day
after the Applicant had removed the document
from the drawer.
Mr Mawonga changed his version in cross-examination, saying that he
spoke to Mr Brown three or four days
after, and not the following
day. Even still, no reason existed for this simple matter not being
dealt with immediately and independent
of the other allegations
against the Applicant.
45.
The aspect of the alleged date of the
misconduct namely that the Third Respondent charged the Applicant
with having perpetrated
the misconduct “
on
or about 3 December 2001
” is
relevant, particularly where the accused denies the allegation in its
entirety. This is perhaps one area best illustrating
the
consequences of delays in instituting disciplinary enquiries and why
it should, as a general rule, be instituted without delay.
This
being such a patently clear matter in which to institute disciplinary
action against the Applicant, why was such action not
instituted
within a few days of the statement having allegedly been handed to
Brown? If Brown had taken the most basic statement
from Mawonga, the
date of the misconduct would not have been so vague and
controversial. Why, if the statement obtained by Mawonga
from the
Applicant was handed to Brown, as Mawonga alleges, immediately on him
having received it from the Applicant, or for that
matter a few days
later, is it so difficult to have stated the date of the offence with
precision? The allegation of unauthorised
removal of a document
from management’s drawers is the simplest of cases to bring
against the Applicant. Mawonga makes
the allegation that the
document was removed unlawfully, hands the document to Brown, on his
evidence, at best for the Third Respondent,
by around 11 December
2001. Why did it take the Applicant until 19 February 2002 to
issue a disciplinary notice and to only
hold an enquiry on 22
February 2002 in respect of this alleged misconduct? Why was a
proper witness statement not taken from
Mr Mawonga?
46.
On this issue of dates, it is to be noted
that Mr Kaipa said that, he had not seen the discrepancy (with the
date) and if he had
seen the discrepancies relating to the date on
which Mr Mawonga had alleged the Applicant had taken the document, he
would have
looked at it differently. This appears to be a subliminal
concession by Mr Kaipa that, had he been alerted to the discrepancies
relating to the date on which the Applicant had allegedly taken the
document, he may not have found the Applicant guilty. Be that
as it
may, the date of the alleged misconduct is most relevant and the
Third respondent’s witnesses were not at all persuasive
in
their evidence on this allegation against the Applicant.
47.
The Commissioner does not at all deal in a
reasoned manner with the probabilities in this matter. He does
not give any reasons
for his conclusion that "
The
balance of probabilities favour the version of the Respondent
considerably.
" His conclusion is
not justified, nor reasoned.
48.
I am of the view that in respect of the
allegation that the Applicant removed a statement from management
drawers without authority,
the probabilities do not favour the Third
Respondent. It is highly improbable that a man will commit misconduct
in front of a witness,
particularly where he has every opportunity to
do so privately and without being observed. Why would a perpetrator
of misconduct
provide clear proof of his misconduct to an eyewitness
by giving a copy of the document he had removed without authority?
The question
may therefor legitimately be asked, why would the
Applicant have taken a document like the one in question in the
presence of Mr
Mawonga when he had eight hours time during his shift,
or even for days before, when he was alone in the office, to do so?
Why would he wait until Mr Mawonga is in the office and then take the
document in front of him?
49.
On the probabilities, I believe, it is
therefor improbable that the Applicant removed the document as
alleged. The evidence
of the only witness who allegedly saw the
Applicant do this is, to say the least, not satisfactory. As
stated, corroboration
for his allegations may have been found in the
fact that Mr Brown testified that Mr Mawonga handed him the document
in question.
But in this regard, as well, there are
contradictions as to exactly when Mawonga gave Mr Brown the document.
The date on which
the misconduct happened, also became controversial
and in the end unclear.
50.
The Commissioner does not favour us with a
reasoned conclusion why he finds the Third Respondent’s
witnesses more credible
than the Applicant. He rather baldly states
that the Applicant was not open and frank in his evidence. This
statement is preceded
by the statement of the Commissioner that
“
There was no evidence placed
before me to suggest any reason or motive why (Mawonga’s)
testimony should be discredited”
.
This is however not correct. Evidence was placed before the
Commissioner that Mr. Mawonga was promised a position at Ithonga
should he testify against the Applicant and that Mawonga was
subsequently employed there. Mr Mawonga confirmed that he in fact was
promoted to a senior position in Ithonga Security after the Applicant
had been dismissed. The Commissioner did not apply his mind
to this
evidence at all.
51.
I am mindful that one does not lightly
interfere with a tribunal’s findings of credibility. I am also
very mindful that I
am not at liberty to substitute my opinion on the
correctness of the Commissioner's finding that the Applicant was
guilty of having
“
gained access to
management drawers without authorisation”
for that of the Commissioner. In my search, however, to find
justification for the Commissioner's conclusions in this specific
regard, and in the process having considered the merits of the
matter, I am unable to conclude that the Commissioner applied his
mind properly to the issues on hand. Nor am I able to conclude that
he properly reasoned his way to his conclusions on this aspect
of the
proceedings before him.
52.
I particularly do not find his conclusions
justifiable having regard to the reasons given (or the absence of
reasons given).
I do not find his conclusion defensible.
53.
Having considered all the evidence before
the Commissioner, I am of the view that the Commissioner could not,
on a balance of probability,
have found that the Applicant was guilty
of having removed the document in question without authority.
54.
It follows that the Applicant was also
wrongly found guilty of having “
gained
access to management drawers without authorisation”
.
55.
In the result, the Commissioner's award
should be reviewed and set aside. I have carefully considered
whether this is a matter
which appropriately should be referred back
to the First Respondent for a re-hearing by a different
Commissioner. I do not
believe that any purpose will be served
by doing this. I, accordingly, need to consider an appropriate
sanction.
56.
In argument before me the Applicant's
representative only sought a compensation order.
57.
From the arbitration record it appears that
the Applicant was unemployed from the date of his dismissal for 3½
months and
that he then got temporary employment at a company called
Maxi Security. The Applicant testified that he earned R4 000 at
Maxi Security. After his temporary employment at Maxi Security,
the Applicant was unemployed for a further 2 weeks, whereafter
he was
re-employed at Cell C. No evidence was adduced by the Applicant
of what his salary was at Cell C and I can only assume
that no
evidence was adduced in this regard because of the fact that the
Applicant received substantially the same salary at Cell
C than he
had at the Third Respondent.
58.
It further appears from a memorandum from
Maxi Security that the Applicant's contract with Maxi Security
terminated on or about
4 October 2002.
59.
In determining what a proper compensation
order herein may be, I have therefore taken into consideration that
the Applicant was
unemployed for a period of 4 months after his
unfair dismissal by the Third Respondent. I further took into
consideration
that for a further period of 4 months, whilst employed
at Maxi Security, the Applicant only received R4 000 per month which
was
R9 621 per month less than the R13 621 per month he received at
the Third Respondent.
60.
I accordingly am of the view that an
appropriate compensation order for the Applicant will be that he
should receive the equivalent
of 4 months salary at R13 621 per month
and a further 4 months at R9 621 which, as stated, is the difference
between what the Applicant
received at Maxi Security and what he
would have received at the Third Respondent, had he not been unfairly
dismissed. The
total amount comes to R92 968.
61.
The Order which I accordingly make is the
following:
61.1
the arbitration award of the Second
Respondent under case number GA 7221-02, dated 21 February 2003 is
reviewed and set aside;
61.2
the dismissal of the Applicant by the Third
Respondent on 28 February 2002 is declared to have been
procedurally and substantively
unfair;
61.3
the Third Respondent is ordered to pay the
Applicant compensation in the amount of R92 968 together with
interest in terms of the
Prescribed Rate of Interest Act 55 of 1975
calculated from the date of this Order until the date of payment;
61.4
the Third Respondent is to pay the
Applicant's costs.
NEL,
AJ
28
SEPTEMBER 2005