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[2009] ZALCD 16
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Independent Municipal Allied Trade Union (IMATU) and Another v Umngeni Municipality and Others (D905/08) [2009] ZALCD 16 (15 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO:D 905/08
Reportable
In
the matter between:
INDEPENDENT
MUNICIPAL
ALLIED
TRADE UNION (IMATU)
FIRST
APPLICANT
NOLA
GLOSS
SECOND
APPLICANT
And
UMGENI
MUNICIPALITY
FIRST
RESPONDENT
SOUTH
AFRICAN LOCAL BARGAININGCOUNCIL
(SALGBC)
SECOND
RESPONDENT
COMMISSIONER
M B MASIPA N.O.
THIRD
RESPONDENT
\JUDGMENT
Conradie
AJ
1. In this matter the
Applicant seeks an order reviewing and setting aside an award made by
the Third Respondent on 20 October 2008
under case number KPD100705.
Background
2. The Second Applicant
was employed as an Enquiries Clerk with the First Respondent for
seven (7) years.
3. The Second Applicant
worked in the First Respondent’s office in Hilton along with a
fellow employee, Carol (Shange).
4. Part of the Second
Applicant’s functions was to check the money collected by
Shange, the cashier, confirm its correctness,
place it in a bag and
seal it for collection by Fidelity Cash Management Services
(Fidelity), which would transport the money to
the offices of SBV, an
agent for ABSA Bank, with whom the First Respondent banked.
5. Around 23 August 2006,
a teller from SBV claimed that a the bag collected from the First
Respondent’s offices was short
by R5 000.00.
6. The Third Respondent
appointed outside forensic investigators to investigate the matter as
well as the disappearance of R24000
a month or so earlier.
7. The Second Applicant
and Shange were charged as follows:
“
You intentionally
did not place cash in the amount of R5 000.00 into the Fidelity Guard
Cash Management Services, ‘stoploss’
bag number D5 4910
772 prior to sealing it and handing it to Fidelity Cash Management
Services for banking, alternatively;
You were grossly
negligent in failing to ensure that the total amount of R14 444.23
was placed into ‘stoploss’ bag number
D5 4910 772 prior
to sealing it and handing it to Fidelity Cash Management Services for
banking.
This amounts to serious
misconduct and is a contravention of Paragraph 2(a),(b) and (d) of
schedule 2 of the Municipal Systems Act
and clauses 4.2.3 and 4.2.5
of the South African Local Government Collective Agreement:
Disciplinary Code”
8. Following on a
disciplinary hearing, the Second Applicant and Shange were found
guilty of:
“
having colluded,
on or about 23 August 2006, in the removal of R5000.00 from the cash
takings of the employer, the Umgeni Municipality
and of having
falsely represented to the employer that the full cash amount of R8
569.49 had been placed in the SBV stoploss bag”
9. The Second Applicant
and Shange were subsequently dismissed on 31 July 2007.
10. The Second Applicant
referred a dispute to the Second Respondent who appointed the Third
Respondent to arbitrate the dispute
after conciliation failed.
11. At the arbitration
the First Respondent led the evidence of an independent forensic
investigator, Govert Vetten and that of
Leila Pillay, an assistant
manager of SBV Pietermarizburg. The Second Applicant testified
on her own behalf and called Jeanette
Hampson as a witness.
Arbitration Award
12. In her award
the Third Respondent summarised the evidence of the witnesses as set
out below.
13. Vetten’s
evidence in chief :
13.1 He was appointed to
investigate the allegations against the Second Applicant.
13.2 During January 2006
he interviewed the Second Applicant at her home.
13.3 He went to SBV’s
premises on several occasions to view the facility and to meet with
management.
13.4 He viewed the video
of the incident at the premises and obtained a copy. He
recounted what he had seen on the video.
This included that the
teller at SBV;
13.4.1 Counted
the money;
13.4.2 Added it
with a calculator and then realized there was R5000 short;
13.4.3 The teller
placed the money on the note counting machine before “revisiting”
the bag;
13.4.4 After
recounting the money and recalculating it she activated a button
calling a supervisor;
13.4.5 When the
supervisor arrived in the cubicle the teller stood making sure that
her hands were visible to the camera;
13.4.6 The teller
went through the same procedure whereafter the shortage was “entered”
and held up to the camera.
13.5 He inspected the
stop loss bag relevant to the incident, which did not appear to have
been tampered with. He established
that the handwriting on the
bag was that of the Second Applicant.
13.6 He checked the
procedure on reporting shortages and viewed the original incident
report and obtained copies thereof.
13.7 He testified about
the final report which was compiled by the forensic company.
13.8 The forensic report
concluded that both cashiers be held accountable.
13.9 He interviewed staff
from Fidelity and SBV and concluded that the R5000 had not been
placed in the bag.
13.10 In his experience
people completed the deposit slip to create the impression that money
was correct when it left the Third
Respondent and then later imply
that the receiver of the bag must have taken the money.
13.11 He testified about
the procedure at the Hilton office where the Second Applicant worked.
13.12 He looked at all
the steps “in the process of the money and evidence available
and came to conclusion that the only
reasonable conclusion was that
on a balance of probabilities, the missing money was never placed in
the stop loss bags before they
were sealed and both cashiers for the
days of the incidents should be held responsible for the loss and
should be held accountable.”
13.13 He had three
interviews with the Second Applicant who could not remember
everything as she had memory lapses but he could
not say that it was
convenient.
14. Vetten’s
evidence under cross-examination:
14.1 He did not ask the
Second Applicant questions about her finances but had looked at her
clothes and house and did not think
that she was battling and
therefore saw no need to go into her personal finances. He also
did not know if she had a need
to steal R5000.
14.2There was a similar
matter where an amount of R24 000 went missing. Similar
evidence was given at the disciplinary hearing
and the employees were
acquitted. He testified that this was due to the number of
witnesses called and the fact that witnesses
from SBV and Fidelity
were not called. The R24000 was not accounted for and the
cashiers were acquitted.
14.3He believed that the
SBV cashier could not have made a mistake as they are strip searched
and everything is recorded on video
and at the end of their shift the
cubicles are “totalled” and balanced.
15.
Pillay’s evidence in chief:
15.1 She oversees the
running of the centre including branch security.
15.2 Money is received
through a shoot by bank marshals.
15.3 The marshals enter
the client code and verify receipts.
15.4 The money bags have
a blue strip which tellers use to determine if the bag has been
tampered with or not.
15.5 Tellers look at the
serial number and inspect to see that the bag is not damaged.
15.6 SBV staff work under
camera surveillance and there is about 100 cameras.
15.7 In the event of a
shortage the teller looks at the security seal to see if it has been
tampered with. She will enter
the serial number and amount from
the deposit slip. She will show the amount to the camera
before (re-)opening the
bag. She will show the amount to the
camera and then re-open the bag. She will check the money on
the counter, re-check
it, show the shortage to the camera and call a
supervisor. A full count of all the cash is then done and a
body search.
Her cubicles and bin will be searched.
15.8 SBV’s
procedures were tight and audited every 6 month to ascertain if
procedures were properly followed.
16. Pillay’s
evidence under cross-examination:
16.1 She conceded that
SBV do not have serial numbers for Fidelity’s bags.
16.2 If the bag is
exchanged or replaced SBV would not know. They would only know
this if the serial numbers on the receipt
did not correlate with
those on the bag. There is a form which is completed by
Fidelity Guards with a collection date, the
client code, serial
number and the name of the guard.
16.3 She conceded that in
terms of the number sequence, the bag in question dated 22 August
2006 had a number smaller than those
from June to July 2006.
16.4 She conceded further
that the bag could have been swopped but that she knew the
Applicant’s handwriting which appeared
on the bag.
17. Third
Respondent’s evidence:
17.1 She was employed as
an enquiries clerk in the Hilton office.
17.2 On the 22 August
2006 she counter-signed Shange’s cash sheet indicating that an
amount of R14 444. 23 had been received
by the First Respondent.
17.3 On 23 August 2006
she was present when Shange’s takings were placed in a stoploss
bag for Fidelity and sealed for banking.
17.4 The procedure which
they followed at Hilton is that they would cash up at 15h30.
She would do the float and the cheques
and at 16h00 she would do
banking and lock the money in the safe. The next morning she
would complete the deposit slips and
leave them on her desk.
She would check the money and deposits and then place them in the
bag. The money would be counted
in Shange’s presence.
Once the bag is sealed it is locked in the safe until it was given to
fidelity later in the day.
The Fidelity Guard records the
receipt and the bag and furnish them with a receipt.
17.5 On the day in
question she counted the money in Shange’s presence and placed
it into the bag. If she had left the
R5000 on her desk she
would have noticed it and would have to take another bag and redo the
deposit.
17.6 After the incident
on 22 August 2006 she continued to perform her duties until 7 March
2007. During this time the First
Respondent’s trusted her
and Shange with the money. During December 2006 and January 2007 she
handled more than Two Million
Rand. She did not regard the
trust relationship as having broken down.
17.7 She testified that
the number on the fidelity bag was smaller, in the 700s, than the
numbers for June/July 2006, in the 800’s.
18. Second
Applicant’s evidence under cross-examination:
18.1 She was in Kokstad
for nine years and seven years with the First Respondent.
18.2 She checked money,
placed it in the bag and wrote on it.
18.3 If anyone was to
change the bag they would have to rewrite the details on the new bag.
18.4 Fidelity Guards copy
the information on the bag onto the receipt. Although her
handwriting was on the bag she did she
did not see the Fidelity Guard
copy the bag number onto the receipt.
19. Hampson’s
evidence:
19.1 She is employed by
the respondent and her duties involve bank conciliations, downloading
bank statements and reconciling it
with the First Respondent’s
system on what has been banked. If there is a discrepancy she
questions it.
19.2 She followed up with
the bank about the R24 000 shortfall. If she had not followed
up it would have been written up as
bank charges. She had not
received a response on some of the monies and these were written off.
19.3 Since Shange and the
Second Applicant were dismissed cameras have been installed.
20. After analysing the
evidence the Third Respondent states that the evidence presented
proved that the Second Applicant was the
last person to handle the
cash before it was placed in the stoploss bag. Further, the
serial number on the bag and the one
received by SBV, and the
handwriting on the bag, confirmed that the bag had not been changed
or replaced. There was also
no evidence of the bag having been
tampered with when it was received by the SBV teller. As there
was R5000 short, in the
circumstances the only reasonable inference
is that this amount was not placed in the bag by the Applicant.
As a result she
concludes on a balance of probabilities that the
Applicant’s dismissal was substantively unfair.
21. Mr Crampton, who
appeared for the First Respondent, submitted that the Third
Respondent’s conclusions, which was reached
through a process
of inferential reasoning, was one which a reasonable commissioner
could reach and that this was one of those
cases in which different
commissioners acting reasonably could come to different conclusions.
He further argued that in light
of Sidumo & Another v Rustenburg
Platinum Mines Ltd & Others
1
this is all that this court had to concern itself with.
Further, even if it is found in this case that the Third Respondent’s
reasoning and treatment of the evidence is not what it should be, the
question which remains is whether the decision reached based
on the
evidence before her is one that a reasonable decision maker could
reach. If not, then this court is entitled to ask
whether there
is other evidence which was available to the Third Respondent, on
which she did not rely, but which could support
the decision that she
reached. If so then this court can uphold the Third
Respondent’s decision.
22. Ms Reddy who appeared
on behalf of the Second Applicant submitted that the Third Respondent
does not indicate in her award which
charges the Second Applicant is
guilty of. She merely concludes that the Second Applicant’s
dismissal was substantively
unfair. I agree with Ms Reddy that
this poses a problem if one considers that in essence the charges
against the Second Applicant
was that of theft and in the
alternative, gross negligence. The finding of the chairperson at the
disciplinary hearing was that
the Second Applicant had colluded with
Shange in not placing the money in the stop loss bag and therefore
was involved with the
theft of the money. Throughout it’s
answering affidavits in this matter the First Respondent confirms
that the Second
Applicant has been dismissed for theft.
23. It is clear from the
record that there is absolutely no evidence of theft or any type of
dishonesty on the part of the Second
Applicant. The onus was on
the First Respondent to prove the fairness of the Second Applicant’s
dismissal and as such
to put the necessary evidence before the Third
Respondent in order to discharge this onus. It clearly failed
to do so.
Inferential
Reasoning
24. In reaching its
finding at the disciplinary hearing that the Second Applicant was
guilty of theft, the First Respondent used
“inferential
reasoning” to reach its decision. The same approach was
followed by the Third Respondent at the
arbitration. This
involved accepting that if the employee had placed the money in the
stop loss bag and it was not there
when the SBV teller opened it then
the Second Applicant must be held responsible. This required
acceptance of the evidence
that the theft could not have occurred on
SBV’s side. Evidence which I may add was given by Vetten,
the forensic investigator
who formed his views that it could not be
SBV on the basis that he had watched the video of the incident in
question and had spoken
to management of SBV about their procedures.
It was also based on the evidence of Pillay who similarly sang the
praises of
SBV’s procedures.
25. There was no evidence
of any of the employees directly involved with the incident on the
day. I pause to mention at this
stage that Vetten testified
that he reached the conclusion which he did after he had interviewed
the Fidelity and SBV staff involved,
watched the video and considered
documentation relating to the incident. The Chairperson of the
disciplinary hearing of his
own accord summoned the SBV teller who
was involved with the R5000 on the day in question to testify.
26. In the matter before
the Third Respondent, the teller was not called as a witness.
From my reading of the record it also
appears that the video was not
introduced into evidence but its content merely recounted by Vetten.
27. There was also
no evidence to suggest that SBV had a perfect track record in that
none of its employees had ever managed
to steal of the money which
they worked with. On the contrary, there was evidence to the
effect that of the First Respondent’s
money had previously
disappeared. Just shortly before the incident in question R24
000 had disappeared. SBV was also
involved in this chain of
events. Hampson’s evidence was also to the effect that
there were other losses which she
had to follow up on.
28. In fact what appears
from the record is that the forensic report was commissioned in
respect of both the R24000 and the R5000
which was unaccounted for.
These were two separate incidents which occurred on different dates
at different offices of the
First Respondent. The employees
accused in respect of the amount of R24 000 also faced a disciplinary
hearing but were acquitted.
Common to both these incidents, however,
was the involvement of Fidelity and SBV. It therefore appears
that these losses
may have been attributable to problems within the
First Respondent or within SBV, or somewhere in the middle.
29. This leads me to the
question of the absence of evidence from Fidelity. The First
Applicant did not call anyone from Fidelity
to testify. The
Second Applicant in her evidence mentioned a possible discrepancy in
the numbering of the Fidelity bags in
that the numbers was in the
700s in August but in the 800’s for June/July 2006. This
evidence was not challenged during
cross-examination nor by any other
employee from the First respondent or by Fidelity itself. In
the absence of a witness
from Fidelity possible problems that could
be attributed to Fidelity were tested with Pillay during
cross-examination. From
the record her evidence on this point
can be summarized as follows:
29.1 SBV do not have any
record of the serial numbers of Fidelity’s bags before it
arrives at SBV.
29.2 SBV would not know
if a bag was swopped.
29.3 The bags could have
been swopped because the number of the bag in question does not tie
up with the bags which were issued
by Fidelity for that period.
30. I am of the view that
in circumstances such as in this matter, an employee can only be held
responsible for an act of
misconduct through a process of
elimination, as it were, if all the probabilities are indeed
eliminated. It cannot be fair to an
employee in the circumstances
which the Second Applicant found herself, to hold that on a balance
of probabilities that the employee
must be guilty of theft when to
begin with all probabilities have not been assessed.
Reasons Given For
Dismissal
31. Even if the
“inferential reasoning” approach as adopted by the First
and Third Respondent’s were found to
be acceptable, the First
Respondent still failed to discharge the onus of proving that the
Second Applicant was guilty of theft.
At most this type of
reasoning in the circumstances of this case could lead to the
conclusion that the Second Applicant did not
put the R5000 into the
bag. However, this is not what the Second Applicant was found
guilty of. According to the ruling
of the chairman of the
disciplinary hearing he found “both employees guilty of having
colluded, on or about 23 August 2006
in the removal of the amount of
R5000,00 from the cash takings of their employer, the Umngeni
Municipality and of having falsely
represented to their employer that
the cash amount of R8569,49 had been placed in the SBV stoploss bag”.
As these are
the reasons which were given for the dismissal,
the fairness of the dismissal had to be tested against these
reasons. It
is clear that the Third Respondent failed to do
this and that the First Respondent led no evidence in support of
these reasons.
I am able to dispose of the matter on this basis
as well.
2
32. However, even if the
case to be met was one of gross negligence the question to then be
asked is whether dismissal was the appropriate
sanction in the
circumstances. I believe not. Relevant considerations to
be taken into account include that there were
clearly problems at the
First Respondent in relation to its banking procedures. The
First Respondent allowed the Second Applicant
to continue working for
almost seven months after the loss was discovered. At some
point after the incident, as a result
of both the Second Applicant
and Shange having taken leave, there was approximately Two Million
Rand in the vault at the Hilton
office under the control of the
Second Applicant. This clearly indicates that the trust
relationship had not broken down.
The Second Applicant worked
for a total of 16 years in local government. It does not appear
from the record that during the
time that the Second Applicant
performed the banking function that any money had disappeared. The
Third Respondent did
not consider any of these factors or any
other relevant factors at all in confirming the First Respondent’s
decision.
33. For all the reasons
stated above I am of the view that based on the evidence before her,
the Third Respondent came to a decision
which a reasonable decision
maker could not reach.
34. I am also the view
that this is a matter in which I can substitute my decision for that
of the Third Respondent.
35. In the circumstances
I make the following order:
a. The
award of the Third Respondent is reviewed and set aside.
b. The
Award is substituted by the following:
1. “The dismissal
of the Applicant is substantively unfair.
2. The Applicant is
reinstated in her employment, without loss of remuneration or
benefits, from the date of dismissal.”
c. The
First Respondent is to pay the costs of this application.
_______________
Conadie
AJ
Date:
15 December 2009
Appearances:
For
the Applicant: Shanta Reddy –
Shanta Reddy Attorneys
For
the Respondent: Adv D Crampton instructed by Tomlinson Mnguni
James
1
(2007)
28 ILJ 2405 (CC).
2
Fidelity
Cash Management Service v CCMA & Others [2008] 3 BLLR 197 LAC at
206.