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[2006] ZALCJHB 20
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Mutual Construction Company TVL (Pty) Ltd v Ntombela NO and Others (JR797/01) [2006] ZALCJHB 20 (25 April 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN BRAAMFONTEIN
CASE
NO: JR 797/01
In
the matter between:
Mutual
Construction Company
TVL
(Pty) Ltd
Applicant
and
Commissioner.
Ntombela N.O
1
st
Respondent
Commission
for Conciliation, Mediation
and
Arbitration
2
nd
Respondent
Thokoane
Joseph
3
rd
Respondent
JUDGMENT
CELE
AJ
INTRODUCTION
[1]
This is an application in terms of section 145 of the
Labour
Relations Act 66 of 1995 (“the Act”), to
review
and set aside an arbitration award which the first respondent issued
on 14 May 2001 while he was acting under the auspices
of the second
respondent.
The application is opposed by
the third respondent.
Background
facts
[2]
The Third respondent commenced employment with the applicant on 16
January 1997 as a labourer. He was later promoted to the
position of
an administrative clerk. He was responsible for the recording of all
hours worked by employees. Such recordal was used
by the applicant as
a basis for the calculation of payments for its employees in that
section. The third respondent had to record
the hours which he
himself would have worked. He would use a time sheet for such
recording which he would then present to the mine
manager. It would
only be after the mine manager had appended his signature on the time
sheet that the sheet would be used to calculate
payments of
employees.
[3]
On 3 June 1999 the third respondent did not report on duty. On his
return to work, he brought along a medical certificate. He
had been
booked off sick from 3 June 1999 to 5 June 1999 by a doctor. He then
completed his time sheet as if he was on duty on
3
rd
to 5
th
June 1999 but only claimed for the 3
rd
and 5
th
June 1999.
[4]
On 25 June 1999 the applicant issued a notice to attend an internal
disciplinary hearing and served it to the third respondent
who was to
attend the enquiry on 29 June 1999 on charges of dishonesty; breach
of trust and of actions taken in bad faith. He was
then found to have
committed all the acts of misconduct with which he had been charged
whereafter, on 30 June 1999 he was dismissed.
A dismissal dispute
arose between the applicant and the third respondent which dispute
was referred to the second respondent for
conciliation. At
conciliation the dispute could not be resolved and the third
respondent referred it for arbitration, on the strength
of a
certificate of non resolution issued on 13 August 1999.
[5]
The arbitration hearing commenced with Commissioner Nel as the
arbitrator, Mr Bates of the employers’ organisation appeared
for the applicant. Mr Matatshawane from the trade union, FAAWU,
appeared for the third respondent. Mr Bates confirmed that the
applicant was admitting that the third respondent was dismissed. When
he was invited to make an opening statement, Mr Matatshawane
objected
to the presence of Mr Bates. Mr Nel asked for credentials from Mr
Bates who produced a certificate of appointment and
Mr Nel was
satisfied. He ruled that the hearing was to proceed. Mr Matatshawane
threatened to review the ruling. Mr Nel finally
stopped the hearing
to allow a review of the ruling. It would appear that correspondence
was then entered into between the parties
and the second respondent,
the Commission for Conciliation, Arbitration and Mediation (“the
CCMA”). The arbitration
hearing later resumed with the first
respondent as the arbitrator.
Arbitration
proceedings
[6]
The applicant called two witnesses, Mr Vos and Mr Bings. The
applicant’s case was that:
·
When an employee came to work, he would be
directly under the supervision of a foreman. The foreman would
complete the time card
daily. There would be cases where a clerk
would complete the time card, depending on the type of work performed
by the employee.
·
The time card would then be given to the
clerk who in turn would transmit the information from the time card
into a monthly time
sheet.
·
The clerk would then submit the time sheet
to the mine manager who had to check the time sheet and then
authorise it by signing
the same.
·
The signed time sheet would then be
submitted to the salaries department, which in turn, would rely on
the time sheet to generate
a monthly payment of each employee.
·
Most employees were paid per hour worked
and the time sheet provided the total hours which an employee would
have worked for each
month.
·
There are days when the third respondent
did not report for duty. After he had returned to work, he then
recorded certain hours
on the time sheet as if he had been at work.
Such days were on:
Ø
29 May 1999 – 9 hours were recorded;
Ø
30 May 1999 – 8 hours were recorded;
Ø
31 May 1999 – 11, 5 hours were
recorded;
Ø
1 June 1999 – 11, 5 hours were
recorded;
Ø
3 June 1999 – 11, 5 hours were
recorded;
Ø
5 June 1999 – 9, 5 hours were
recorded;
Ø
6 June 1999 – 10 hours were recorded
and
Ø
7 June 1999 – 11, 5 hours were
recorded.
·
There are days on which the third
respondent altered recorded hours. These are;
Ø
8 June 1999 – 9, 5 hours changed to
11 hours;
Ø
9 June 1999 – no particulars given;
Ø
10 June 1999 – no particulars given;
Ø
11 June 1999 – 9, 5 hours changed to
11,5 hours;
Ø
14 June 1999 – no particulars given;
Ø
18 June 1999 – 11, 5 hours changed to
14 hours;
·
The original time sheet was at the office
and from it the alterations could clearly be seen.
·
During the disciplinary enquiry, Mr Bings
was the chairperson but he also took down notes. Mr Bings was not the
complainant as mistakenly
reflected in the notes. Mr Mashego was the
person who had complained to Mr Bings about the third respondent. Mr
Bings then drew
a notice of the enquiry and served it to the third
respondent.
·
The third respondent chose not to be
represented. He then pleaded not guilty to the charges whereafter he
was asked to give an explanation.
The explanation he gave was an
admission that he had committed the misconduct with which he was
charged. Such misconduct related
to the events of 1999 and not those
of 1997. The events of 1997 were merely an explanation of why he
committed the 1999 acts.
·
No statement was taken from the complainant
due to the fact that the third respondent had admitted to the acts of
misconduct with
which he was charged.
·
The company stood to lose R 600 to R 700
from the hours which were falsely claimed by the third respondent.
·
In terms of the company code of conduct,
dishonesty was a dismissible offence. The applicant would not
consider reinstatement of
the third respondent due to the trust
relationship having broken down and that the applicant had already
placed someone else in
the position of the third respondent. The
person taken had been with the applicant for six years.
[7]
The third respondent was the only witness who testified for his case.
His evidence was to the effect that:
·
The days on which he was absent from work
were not exactly the same as alleged by the applicant. He was absent
on:
30 May 1999, 3 June 1999;
4 June 1999, 5 June 1999 and 6 June 1999.
·
The only days for which he was charged at
the internal disciplinary hearing were the 3
rd
and 5
th
of June 1999. He was hearing allegations on the other days for the
first time during the arbitration proceedings.
·
He was never given the time sheet at the
internal hearing which the applicant claimed he had changed.
·
Upon his return to work he submitted a time
sheet wherein he only claimed hours as if he worked only for 3 June
1999 and 5 June
1999. However he attached to the sheet, a medical
certificate to indicate to Mr Bings to whom the time sheet was given,
that he
had been off sick but expected it to be a paid off sick.
·
He completed working hours due to an
earlier incident during which he was off sick but was not paid. This
was in 1997.
·
He deliberately claimed for two and not
three days to see if he would be paid as he had previously not been
paid for 5 days during
which he was off sick.
·
The normal working hours per day were 9, 5
hours but in this case, he usually worked 11, 5 hours. For 3 June
1999, he claimed for
9, 5 hours.
·
The notice to attend the inquiry had three
charges. However there was no explanation on when and how these were
allegedly committed.
·
At the internal disciplinary hearing, Mr
Mashego was present but played no role. Mr Mashego was therefore
neither used as an interpreter
nor as a complainant.
·
There is a co-employee who was to have
represented him during the hearing but the company did not allow such
co-employee to come
to the hearing to represent him. It was therefore
not true that he had chosen to represent himself. He conceded though,
that he
did not ask for the matter to be postponed so as to procure
representation.
·
When the enquiry started, Mr Bings
explained the nature of the allegations against him. He then pleaded
not guilty. Mr Bings asked
him to explain what had happened. He
explained and Mr Bings reduced the explanation into writing and gave
it to him to sign. He
signed it. That statement was not the same one
which was produced at the arbitration hearing as he had clearly not
pleaded guilty.
Mr Mashego had played no part in the pleading
proceedings.
·
The minutes of the proceedings which were
kept by Mr Bings correctly reflected that he had pleaded not guilty.
·
He did not know who it is that had altered
the entries in the time sheet as alleged by the applicant.
The
Arbitration award
Substantive
fairness
[8]
The first respondent found that the applicant had failed to explain
why the original time sheet was not given to the third respondent
during the disciplinary hearing. He found that the applicant had also
failed to bring the same during the arbitration proceedings.
He found
that the third respondent had emphatically denied the allegation of
changing certain hours on the time sheet. He said
that it was
difficult to see how these hours were changed in the absence of the
original time sheet.
[9]
He noted that Mr Bings had actually signed the time sheet, basically,
in his view, confirming that the information on the time
sheet was
correct and that employees were to be paid. He said that his logic
informed him that a manager had to satisfy himself
that the
information was correct before signing any claim. He noted that the
person who had supposedly discovered that the third
respondent had
booked the hours on the time sheet when he was not at work, was not
called by the applicant to come and testify
during the arbitration
proceedings. He then found that, on a balance of probabilities, the
evidence of the applicant was not convincing.
His finding was that
the third respondent was dismissed not for a fair reason.
Procedural
fairness
[10]
The first respondent found that the applicant did not properly
explain the charges that were put against the third respondent.
The
example was the charge of dishonesty in respect of which the charge
sheet did not explain why it was alleged that the third
respondent
was dishonest. He said that it was the responsibility of the
applicant to ensure that the charge was not ambiguous.
He said that
failure by the applicant to explain the charges on the charge sheet
had a negative impact in the third respondent’s
preparation of
his case.
[11]
He rejected a claim by the applicant that Mr Mashego was the
complainant during the disciplinary hearing and found, as appeared
in
the notice of the hearing that Bings was the complainant even as he
was the chairperson in the disciplinary hearing. He found
that the
taking of the minutes by Mr Bings was in breach of applicant’s
procedures.
[12]
After the third respondent had pleaded not guilty, the chairperson
ought, in terms of applicant’s disciplinary procedures,
to have
allowed the complainant to proceed with his case, by stating the
facts which led to him bringing the case against the third
respondent. This, he found never happened which was a further breach
of the applicant’s procedures. He accepted the evidence
of the
third respondent that the statement which the applicant said was made
by the third respondent during the disciplinary hearing,
was not his
statement. He found then that the procedure which the applicant
followed was grossly unfair.
[13]
He rejected the submission by the applicant that the working
relationship and trust no longer existed between the parties.
He
found that the dismissal of the third respondent was both
procedurally and substantively unfair. He then ordered the applicant
to reinstate the third respondent with retrospective payment. It is
this finding and the order which aggrieved the applicant, leading
to
the present application.
Grounds
for review
[14]
This application is premised on the submission that the first
respondent:
(i)
committed gross irregularities and
(ii)
issued an award which is neither rational nor justifiable.
Analysis
[15]
The finding by the first respondent that:
“
(i)
the original time sheets were not produced in the arbitration, and as
a result it was difficult to see
how the hours were changed and;
(i)
As the mine manger, Mr Bings, signed the document, he must have
obviously satisfied himself that
the document was correct.”
was
taken by the applicant as a clear indication that the first
respondent completely failed to properly determine the evidence
before him, thereby committing a gross irregularity.
[16]
The contrary submission by the third respondent was that the
applicant was saddled with a duty in terms of section 192 (2)
of the
Act, to have had to prove that the dismissal was fair. The finding by
the first respondent was supported as an indication
of the failure by
the applicant to discharge the duty it was saddled with.
[17]
Crown Chicken (Pty) Ltd t/a Rocklands
Poultry v Kapp & others (2002) 23 ILJ 863 (LAC
)
at 868 provide an appropriate guide for present purposes. Nicholson
JA held that:
“
[19]
Arbitration awards issued by the
CCMA may be reviewed on any of the grounds set out in S 145 of the
Act more especially where the
commissioner had committed a gross
irregularity in the conduct of the arbitration proceedings. The
decision of the arbitrator can
also be set aside if it is not
rationally related to the purpose for which the power was given from
an objective view (
Shoprite Checkers
(Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC) para
[26], Pharmaceutical Manufactures’ Association
of SA &
others: In re Ex Parte Applications of the President of the RSA &
others
2000 (3) BLLR 241
(CC)
or if it
is not justifiable as to the reasons given. See
Carephone
(Pty) Ltd v Marcus NO and others (1998) 19 ILJ 1425 (LAC);
(1998) 11
BLLR 1093
(LAC) at 1103C.
By rational I
understand that the award of an arbitrator must not be arbitrary and
must have been arrived at by a reasoning process
as opposed to
conjecture, fantasy, guesswork or hallucination. Put differently the
arbitrator must have applied his mind to the
issues at hand and
reasoned in 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.
As
gross irregularity can occur patently where for example the right to
cross-examination is denied or latently where the reasoning
is so
flawed that one must conclude that there has not been a fair trial of
the issues. See
Toyota SA Motors (Pty)
Ltd v Radebe & others (2000) 21 ILJ 340 (LAC).”
[18]
In its heads of argument, the applicant submitted that the time sheet
was never placed in dispute by the third respondent’s
union
representative and that it was admitted as undisputed evidence. What
was admitted as undisputed evidence was a bundle of
documents in
which there was a copy of the time sheet in question. In my view,
this submission by the applicant is a narrow approach
to a trial,
which is a process and not just an event. Had the applicant adopted a
holistic approach in assessing this aspect of
evidence, it would have
realised that there was a serious problem, during trial, about the
copies of the time sheet produced by
it. Mr Bates who represented the
applicant was the first to be confronted by a problem, during
arbitration proceedings, as a result
of this failure to produce the
original time sheet. At page 46 of the transcript he had this to say:
“
Commissioner
:
Sorry, can I just take you back … (incomplete).
MR
BATES
:
Yes.
Commissioner
:
You said on the 18
th
of June he changed the hours from eleven and half to fourteen? ----
Fourteen.
MR
BATES
:
Fourteen. Right. How do you know …
(indistinct)? ---well, I put the original that kept with me …
(indistinct) originally.
Commissioner
:
But …
(indistinct) see the original? ---… (Indistinct)
original is
at the office but you can see it very clearly on the original. As you
can see on this one … (indistinct) see
that nine and a half …
(indistinct) changed to eleven and a half.”
[19]
As Mr Bates proceeded with cross-examination of the third respondent,
the following exchanges took place:
“
MR
BATES
:
Why is there time booked for you if you
were not there?
MR
THOKOANE
:
I really don’t know Mr Bates, I do
not know who did this, who booked this (sic) hours.
MR
BATES
:
Because you can even see on this
photocopy if you look on the 30
th
it is a bad copy, … (Indistinct) copies … (indistinct)
see that there was (sic) changes made?
MR
THOKOANE
:
Yes that is my question … (indistinct)”
And
further on:
“
MR
BATEs
: Yes I just said … (indistinct)
Mr Bings has testified and I will show you the clear copy, let me
show you … (indistinct)
here. On the 4
th
,
5
th
is
nine and half and on the 3
rd
it is eleven and a half. You see that Mr Thokoane, on the 3
rd
it is … (indistinct) this is also a copy, much, much clearer
copy. You see that on the 3
rd
… (indistinct) eleven and a half and on the 5
th
nine and a half?
MR
THOKOANE
:
Sir
I cannot … (indistinct). You what I booked because this is not
an original… (indistinct). On my copy it is not
clear …
(indistinct) this was a nine and a half or it was eleven and a half.
I will claim it as together with those days
which were on my
absence.”
[20]
When the three incidents I have referred to are considered, it is
difficult to conceive of the reasonableness behind the submissions,
in this respect, by the applicant. It is patently clear from the
record of the arbitration proceedings that the parties did not
deal
with the authenticity of any documents which formed part of the
bundle, when the bundle of documents was handed in. That the
time
sheet was admitted as undisputed evidence, is therefore, far from the
truth. It was the fault of the applicant not to bring
the original
time sheet to the arbitration hearing. The third respondent’s
case is that the original time sheet was never
produced at the
internal disciplinary hearing. When the third respondent complained
about the non availability of the original
time sheet, Mr Bates did
not put it to him that, the original time sheet was shown to him,
during the internal disciplinary hearing.
I conclude therefore, as I
must, that the original time sheet was never shown to the third
respondent, from the time he was served
with a notice to attend the
internal disciplinary hearing. The original time sheet is the very
document on which the acts of misconduct,
with which the respondent
was charged, are premised. The third respondent alerted the applicant
of a need to produce the original
time sheet, when Mr Bates
cross-examined him. Yet the applicant took no remedial steps to cure
the deficiency.
[21]
Contrary to what the applicant has submitted, it cannot reasonably be
said that the reasoning of the first respondent, that,
as a result of
failure to produce the original time sheet, it was difficult to see
how the hours were changed, is so flawed that
one must conclude that
there has not been a fair trial of the issues. In my view, no gross
irregularity was committed by the first
respondent, in this respect.
The result is that, the applicant failed, at the arbitration hearing,
to prove the infractions with
which it had charged the third
respondent.
[23]
The applicant submitted that the first respondent committed a gross
irregularity when he concluded that the signing of the
original time
sheet by Mr Bings meant that he had obviously satisfied himself that
the document was correct. To support its claim,
the applicant reduced
the status of Mr Bings from that of the Mine Manager to that of the
signatory to the document. It suggested
that Mr Bings could not check
time sheets of all mine employees. It was submitted that the position
of the Mine Clerk was one of
trust. If there was any merit at all in
this submission, the applicant could have given the signing powers to
the Mine Clerk. It
did not do so because there was a need, reasonably
conceived that the work of the Clerk had to be checked by a Mine
Manager. It
was open, to the Mine Manager to call for some time cards
and to use them to do random check on the time sheets. This would
unsettle
any clerk who might be tempted to falsify entries in the
time sheet.
[23]
The signing of the time sheets by a Mine Manager was a very critical
step in the business of the applicant. It directed the
salaries’
department to pay an employee on the basis of the hours as were
reflected on the time sheet. In the absence of
that signature, the
salaries’ department would be acting contrary to the procedure
of the applicant if it continues to generate
payment for employees.
The Mine Manager had then to satisfy himself that the time sheet was
correct. He would be entitled to query
any alterations or any entries
in the time sheet which, from his perspective, were a cause for
concern. In my view, it was reckless
as much as it was irresponsible
of the applicant to belittle the role played by Mr Bings in signing
the timesheet. The decision
of the first respondent was, accordingly
justifiable.
[24]
The notice of the inquiry served on the third respondent did not
explain how and when the infractions were committed. The statement
which was produced by the applicant, as having being made by the
third respondent, and on the basis of which the applicant
said,
it found him guilty, speaks only of the 3
rd
and 5
th
of June 1999 as entries which the third respondent falsified. Added
to this, is the evidence of the third respondent which states
that he
was only charged with misconduct relating to 3
rd
and 5
th
of June 1999 at the internal disciplinary hearing. While the third
respondent, in his own evidence, admitted having claimed the
hours
for the two days as though he was at work, he said that he attached a
medical report to the time sheet to alert the applicant
of his
absence on those days. A copy of such a medical certificate was filed
by the applicant on the record of these proceedings.
The inclusion of
the medical certificate by the third respondent clearly went against
any intentions to misrepresent the facts
to the applicant. He has
explained that in 1997, he was off sick for 5 days. He was not paid
for those days as he had not claimed
for them. In claiming for the
two days as he did, he may have acted contrary to a claim procedure
of the applicant, but it was
not a misconduct of which he had to be
found guilty. When the time sheet was seen together with the medical
certificate covering
the same period, it should not have been seen as
a misrepresentation but rather as a claim for a paid sick leave. The
different
hours claimed, do not add much angle to this approach. In
his award, the first respondent did not make any particular finding
on
this evidence.
[25]
The comments of Nicholas JA in
Toyota
SA Motors (Pty) Ltd v Radebe &
others (2000) 21 ILJ 340 (LAC)
are
apposite. He said in paragraph 39:
“
[39]
From Dhlumayo’s case supra it is clear that the court, in an
appeal on facts, will interfere if there are misdirection’s
of
facts including the overlooking of other facts and probabilities.
This is very similar to the notion that an award can be set
aside if
it is not justifiable with regard to the reasons given. By referring
to gross irregularity in S 145 of the legislature
is already
contemplating something far more serious than that. Mistakes of fact
and law, subject to certain exceptions, are insufficient
grounds for
interference.”
[26]
It is a well accepted principle of law that no judgment or for that
matter an arbitration award can be all, embracing –
S
v Dhlumayo and others
1948 (2) SA 677
(A) at 702
.
The none inclusion in his findings, of the evidence around the claim
of hours for 3
rd
and 5
th
of June 1999 together with the rendition of the medical certificate,
did not, in my view, amount to a sufficient ground for interference.
I have, myself, found that the explanation proffered by the third
respondent was reasonably capable of an innocent explanation.
[27]
I am persuaded by the submissions of the third respondent that the
conclusions arrived at by the first respondent are rationally
justifiable on the basis of the evidence properly placed before him.
He duly applied his mind to the material and he justifiably
came to
the conclusion that the dismissal of the third respondent was
substantively fair. While some of his findings on procedural
fairness
were more formalistic, than substantial as I would hold, I would have
arrived at the same conclusion as he reached on
procedural fairness.
It is my view that, I need not take this aspect any further.
[28]
The following order will accordingly issue:
The
application is dismissed with costs.
CELE
AJ
__________________
Date
of hearing : 03
November 2005
Date
of Judgment: 25 April 2006
Appearances
For
the Applicant
:
Snyman Attorneys
Instructed
by :
Mr S Snyman
For
the Respondent
:
A Barrow
Instructed
by
: Maserumule Incorporated