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[2009] ZALCJHB 66
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Tokwe v Masote NO and Others (JR113/08) [2009] ZALCJHB 66 (27 February 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR113/08
In
the matter between:
AMANDLA
TOKWE
APPLICANT
and
BONGE
MASOTE N.O.
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
2
ND
RESPONDENT
SOUTH
AFRICAN BROADCASTING
CORPORTATION
LIMITED
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
INTRODUCTION
[1]
The Applicant seeks to review and set aside
an arbitration award issued by the First Respondent (the
Commissioner) in which he found
that the Applicant was fairly
dismissed by the Third Respondent. The Applicant did not pursue the
point
in limine
about the alleged late filing of the answering affidavit.
[2]
The application for review is opposed by
the Third Respondent.
Background
facts
[3]
The Applicant who was employed by the Third
Respondent as a Forensic Auditor was charged and dismissed for
misconduct concerning
failure to disclose her business interest in a
close corporation, Sivini CC.
[4]
The Third Respondent came to know about the
interest of the Applicant in Sivini when its manager Mr Naiker was
contacted during
February 2007, by an official of the Special
Investigation Unit (“SIU”) who was conducting a reference
check on the
Applicant. The reference check was done because the
Applicant had applied for another job with SIU. During this telephone
conversation,
the SIU official enquired from Mr Naiker if he was
aware that the Applicant had an external business interest.
[5]
Following the information regarding the
external business interest of the Applicant, the Third Respondent, on
9
th
March 2007, dispatched to the Applicant, a notice of intention to
suspend her in terms of clause 12 of its personal regulations.
In the
notice of intention to suspend the Third Respondent indicated the
following:-
“
It
is alleged that you have been conducting business outside of your
normal duties without the knowledge of the employer. In terms
of your
conditions of employment interests should be declared to the
employer. (own emphasis) The employer views this is a serious
allegation since, should it be true, such conduct may expose the
corporation to a conflict of interests and may compromise the
corporation in as far as the protection of its intellectual and other
property is concerned. You are hereby requested to make
representations on Monday
12
th
March 2007 at 12h00 why you should not be suspended in terms of
clause 12 of the Personnel Regulations of the SABC pending an
investigation into these allegations.”
[6]
In response to this letter the Applicant in
her letter dated 12
th
March 2007 stated the following:-
“
Amandla
Tokwe acknowledges that I am a registered member of
Sivini Express
– CK 2003/040469/23 as from 17 October 2006.
Sivini Express is a
dormant business and hence nullifies the allegation that I have been
conducting any business outside my normal
duties as detailed in the
SABC Personal Regulations.
As the above indicates,
no interests in terms of benefit or income were gained by myself from
the business. Therefore to my knowledge
and understanding, there was
no interest to declare. (own emphasis).
Should the business have
been trading and generating any income for myself, I would have
declared those interests.”
[7]
On 13
th
March 2007 the Applicant was suspended from duty pending
investigations and institution of a disciplinary hearing.
[8]
Ms Sethosa for the Third Respondent argued
that a further attempt was made to have the Applicant make a proper
disclosure in terms
of for S.49 of the Third Respondent. Mr Ningiza,
for the Applicant contended that what was discussed in this meeting
was the various
options put to the Applicant to address the issue of
the failure to disclose her business interest.
[9]
On 26
th
March 2007, the Third Respondent formally charged the Applicant with
the following misconduct:
“
Charge
1.
It is alleged that you
failed to comply with the duties of your service contract, indicating
a breach thereof in that you failed
to disclose your business
interest in the company registered as Sivini Express CC as required
by your terms and conditions of your
employment.
Charge 2.
It is alleged that you
used the property of the SABC for private purposes without permission
in that you solicited work for a company
in which you have a business
interest that you have not declared in terms of your employment
contract.”
[10]
The Applicant was found guilty of the
second charge and not guilty of the first charge.
Grounds
for review and the award
[11]
The Applicant challenged the Commissioner’s
award on both the procedural and substantive findings. In as far as
procedural
fairness is concerned the complaint of the Applicant is
that the Commissioner committed misconduct in that he did not
deal
with overwhelming evidence showing that the Third Respondent
became aware of the alleged offence on 4
th
October 2006 and that taking disciplinary action six (6) months later
was procedurally unfair.
[12]
The Commissioner considered the Applicant’s
evidence on the alleged delay in instituting disciplinary action and
found that
each case must be determined on its own merits and
circumstances, and determination of the reason/s for the delay.
[13]
The Applicant contended that she declared
her business interest through a letter after she was instructed to do
so by Naicker. The
Third Respondent on the other hand contended that
the letter of the Applicant did not constitute a disclosure as it did
not comply
with S49 form through which disclosure of business
interests are to be made. The Third Respondent further contended that
the Commissioner
was not required to decide whether the letter
written by the Applicant on 12
th
March 2007 constituted a disclosure or not including whether or not
the fact that Sivini was a dormant company justified non-disclosure.
[14]
The other complaint of Applicant against
the award is that the Commissioner failed to take into account the
issue of inconsistent
application of discipline in that some
employees found to have been involved in the same offence of non
disclosure of interest.
Except for the allegation of inconsistency
the Applicant has not furnished any further details. There are
also no details
as concerning the circumstances of those employees to
compare with those of the Applicant.
[15]
As concerning substantive fairness the
Applicant contended that the Commissioner did not:
(a)
capture all the evidence presented before
him;
(b)
deal the Applicant’s version in its
entirety particularly in relation to the version put to the Third
Respondent’s witnesses;
(c)
did not apply his mind to the evidence
placed before him; and
(d)
dismissal was not an appropriate sanction.
[16]
In addition to finding that the rule was
valid and reasonable the Commissioner found that the employee was
aware of its existence.
The Commissioner in concluding that the
employee had broken the trust relationship between herself and the
Third Respondent took
into account the breach of the rule, the
seniority and the sensitivity of the job performed by the employee.
The rule which the
employee was accused of breaching is quoted in the
arbitration award as follows:
“
2.
DUTIES OF EMPLOYEES
(b) An employee may
neither directly nor indirectly have an interest in another business
or profession, nor do any other work part
time or otherwise, nor hold
a public office,
without the prior written permission of the Group
Chief Executive. (my own underlining).”
[17]
The Commissioner in his reasoning rejected
the submission of the employee that the business of Sivini was
dormant and therefore
did not derive any financial benefit from it.
In his further reasoning the Commissioner states:
“
It
is clear that whether a business is dormant, trading or a benefit is
derived out of it or not, disclosure of the interest in
the business
is a requirement. The employee party’s further argument that
the employer party did not suffer any prejudice
as a result of non-
disclosure, is hereby rejected, because the above quoted rule does
not provide for exoneration from compliance
for this reason.”
Evaluation
of the Award
[18]
In my view the inquiry which the
Commissioner needed to conduct during the arbitration hearing
extended beyond the breach of the
rule. It is however clear from the
reading of the Commissioner’s award that his inquiry focused
only on the existence of
the rule, its reasonableness and whether it
had been contravened by the employee. Accordingly, the Commissioner
failed to appreciate
that his task extended to having to determine
whether or not the dismissal was an appropriate sanction having
regard to the totality
of the circumstances of this case. Had he
applied his mind to the fairness of the sanction, the Commissioner
ought to have found
that the dismissal was not an appropriate
sanction. In failing to conduct the inquiry into the appropriateness
of the sanction
the Commissioner committed a gross irregularity,
which resulted in his award failing the reasonable standard set out
in
Sidumo v Rustenburg Platinum Mine Ltd
(2007) 28 ILJ 2405 (CC).
[19]
The standard set out in Sidumo is that of a
reasonable decision-maker which requires the Court before interfering
with the arbitration
award to inquire into whether the decision of
the Commissioner is one which a reasonable decision - maker could not
reach. Dealing
specifically with the issue of the evaluation of the
appropriateness of the sanction the Constitutional Court in
Sidumo
had this to say:
“
[78]
In approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list.”
[20]
In
Fidelity
Cash Management Services v CCMA & Others
[2008] 3 BLLR 197
(LAC),
at para 94
the Court emphasised that
the above factors were not exhaustive and indicated that other
factors to take into account are:
“…
The
Commissioner would also have to consider the Code of Good Practice:
Dismissal and the relevant provisions of any applicable
statute,
including the Act. In this regard, sections 188 and 192(2) of the Act
will usually be of relevance. Section 188(1) provides
in effect that
a dismissal that is not automatically unfair if the employer fails to
prove the matters stated therein. Section
182 enjoins a person
considering whether a dismissal is unfair to take into account
provisions of the relevant Code of Good Practice.
Section 192(2) is
the provision that places the onus on the employer to that the
dismissal is fair.”
[21]
It is an established principle of our law
that not every proven offence by an employee would automatically lead
to a dismissal.
Having established that an employee is guilty of an
offence the employer has to determine from the range of sanctions
available
which one is a fair, taking into account the totality of
the circumstances of the case. In this respect as stated by Ngcobo J
in
Sidumo
,
the employer has some form of a discretion that he or she has to
exercise (at paragraph 18). In assessing whether the employer
acted
fairly in imposing the sanction of a dismissal the Commissioner has
to ask himself or herself whether the employer’s
decision is in
the circumstances of that particular case fair. In this regard as
stated earlier the Commissioner’s task extends
beyond enquiring
about the existence of the rule, its reasonableness and breach
thereof. The enquiry entails looking into the totality
of the
circumstances surrounding the offence, how important is the rule that
has been breached and why did the employer impose
that sanction. See
Edcon Ltd v Pillemer (2008) 29 ILJ 616
(LAC).
In short the Commissioner should
in performing this task be guided by the principle of progressive
discipline which amongst other
things would entail assessing the
prospects of correcting behaviour and using the incident as a
learning process. The attitude
and the response of the employee when
called upon to account for his or her conduct would in my view serve
as a useful indicator
of the willingness of the employee to continue
with the employment relationship and in particular that he or she is
willing to
learn from the experience. This would also serve as an
indicator that training could correct behaviour and ensure that there
is
no repeat in the future. Training may also serve to create a
common understanding on the interpretation and application of a rule
or policy.
[22]
In applying the above principles to the
facts of this case it is clear that the Commissioner failed to
appreciate the case of the
employee including the circumstances and
the context within which she was dismissed. Firstly it was not the
case of the employee
neither that of the Third Respondent that the
rule provides for the concept of “
prejudice”
.
The contention of the employee was that even if she was guilty of
failing to disclose her interest in Sivini, the Third Respondent
did
not suffer any prejudice as a result thereof.
[23]
Similar to
Sidumo,
the failure to disclose in this matter did not result in any loss to
the Third Respondent nor did it involve any monetary gain
or any
other benefit to the employee. The conduct of the employee did not
involve an intentional disregard of the policy but rather
an error in
the interpretation of what was required by the policy. In the
circumstances of this case it can not be said hat the
interpretation
of the extent of the disclosure by the employee was unreasonable or
reckless. Her interpretation was that the disclosure
was required in
a case where an employee was involved in a company that was actively
involved in business as opposed to a dormant
company. Her response
when called upon to account ought to have been taken into account
when assessing the fairness of the dismissal
sanction. She did not
deny her involvement with Sivini.
[24]
Another point which the Commissioner ought
to have been taken into account had he applied his mind to the
assessment of the fairness
of the sanction is the comment made by the
chairperson of the disciplinary hearing regarding the clarity of the
rule. Contrary
to the submission of Ms Sethosa for the Third
Respondent, that the record of the disciplinary hearing was not
submitted during
the arbitration hearing, Naiker made reference to
the report of the chairperson of the disciplinary hearing during his
cross-examination.
He in his regard made reference to the
inaccuracies in the report and sought to correct them. He did
not take issue with
the comment of the chairperson when he said:
“
It
is the panel’s view that the process governing this requirement
of declaration of interest in the SABC is not clearly articulated
and
therefore acknowledge a flaw in the system.”
[25]
In the light of the above it is my view
that the award of the Commissioner stands to be reviewed. I see no
reason in both law and
fairness why costs should not follow the
results.
[26]
In the premises the following order is
made:
(i)
The arbitration award issued by the
Commissioner under case number GAJB18159-07 dated 29 November 2007,
is reviewed and set aside
with costs.
(ii)
The award is substituted and should
read as follows:
“
(a)
The dismissal of the Applicant, Ms Amandla Tokwe, was unfair in that
the sanction imposed was in the circumstances unfair.
(b) The Third Respondent
is ordered to reinstate the Applicant retrospectively to the date of
her dismissal without loss of salary
and benefits.”
_______________
Molahlehi
J
Date
of Hearing :
17
th
February 2009
Date
of Judgment :
27
th
February 2009
Appearances
For
the Applicant :
Mr T Ningiza of Ningiza Horner Attorneys
For
the Respondent: Ms T H
Sethosa of Maserumule Incorporated