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[2010] ZALCJHB 19
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Ehrke v Standard Bank of South Africa and Others (JR1285/2008) [2010] ZALCJHB 19 (22 January 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANESBURG
CASE
NO: JR1285/2008
In
the matter between:
LUDWIG
WILLEM
EHRKE Applicant
and
STANDARD
BANK OF SOUTH
AFRICA First
Respondent
COMMISSIONER
F J VAN DER MERWE N.O Second
Respondent
COMMISSION
FOR CONCILLIATION,
MEDIATION
AND
ARBITRATION Third
Respondent
JUDGMENT
P.
ZILWA AJ :
[1]
The applicant had been employed on a
permanent basis by the first respondent from November 2003 as a
teller, thereafter at the enquiries
section, and later still
appointed as a team leader teller. From January 2007 he was appointed
as a home mobile consultant at the
first respondent’s Home Loan
Division.
[2]
During the course of the applicant’s
appointment at the first respondent Home Loan Division it turned out
that the applicant’s
performance was not, in the view of the
first respondent, up to standard. In order to improve his performance
the applicant was
put on a program known as Performance Improvement
Program (PIP) as from July 2007, under the supervision of one Nadia
Van
Rooyen.
[3]
Some days before 21 September 2007 the
applicant was dealing with an application for an opening of an
account of a certain Hannelie
Van der Merwe who, at the time, was an
ABSA employee and who had obtained employment at the first
respondent’s bank. She
was, as such, required to open a banking
account with the first respondent. There were some difficulties that
were experienced
by the applicant with the opening of Ms Van der
Merwe’s account, which were caused, amongst other things, by
the fact that
the payment for Ms Van Der Merwe’s credit card
was in arrears.
[4]
Applicant left on a one week training
course regarding home loans at the instance of the first respondent.
Whilst he was still in
that course it appears that some other
employee of the first respondent attached to the BFC Division had
contacted Ms Van der Merwe
directly and informed her that her
application had been declined. This was done at the time that the
applicant was still attending
the Home Loan training course and the
applicant was not informed that another employee of the bank had
approached Ms Van Der Merwe
personally and conveyed to her the
failure of her application.
[5]
Apparently Ms Van Der Merwe was peeved
about the decline of her application and, for some reason, she blamed
the applicant for such
failure.
[6]
On the morning of 21 September 2007 Ms
Van Der Merwe left a voice message in the applicant’s cell
phone, indicating her displeasure
with the applicant’s service
and stating that she was going to lay a complaint against him with
his superiors.
[7]
The threat of the complaint apparently
alarmed and panicked the applicant, especially since he was already
on a program to improve
his performance. His fear was that if Van der
Merwe did indeed lay a complaint against him with his superiors he
would be caused
to remain on the improvement program, and if matters
did not improve, there was a possibility that he could lose his job.
It apparently
never occurred to the applicant that since the decline
of Ms Van der Merwe’s application had been due to no fault on
the
part of the applicant, even if Van der Merwe had carried out her
threat of reporting the applicant, after due investigation the
applicant would, in all probability, have been cleared and the fears
that he entertained would not have eventuated.
[8]
In consequence of his fear of being
reported to his superiors, the applicant attempted to resolve the
issue by suggesting to Van
der Merwe that he would attempt to obtain
her a cheque account card which he would give to her (Van der
Merwe) at the North
Gate Branch of the first respondent on the
following Saturday. Van der Merwe did not agree to meet the applicant
on the proposed
Saturday. In order to suit Van der Merwe, it was
arranged that applicant will meet her on that same afternoon of 21
September 2007
at 15h00. This arrangement was made even though the
applicant knew that he was due to attend a BFC function at the time
that he
had agreed to meet Van der Merwe.
[9]
The applicant then phoned his team
leader, Nadia Van Rooyen, and informed her that he would not be able
to attend the BFC function
that afternoon. In order to conceal the
real reason pertaining to Van der Merwe, which he perceived would put
him in trouble, he
stated an untruthful reason, namely that he was to
see a client at 3pm who could not be seen at any other time as she
was leaving
for the United States of America and, as such, had to be
attended to immediately. Van Rooyen expressed her dissatisfaction
with
the fact that the applicant would not be attending the BFC
function.
[10]
The applicant arranged and collected
Van der Merwe’s bank card in preparation for their 15h00
meeting. At about 14h45 Van
der Merwe phoned the applicant, telling
him that she would not be able to meet the applicant at the appointed
time and requested
the applicant to leave the documents with someone
else. This was a big problem for the applicant since the meeting with
Van der
Merwe was his only reason for not being able to attend the
BFC meeting. In order to cover the time that he was supposed to be
meeting
with Van der Merwe the applicant contacted another
client, one De Waal, and arranged a meeting for that afternoon
regarding
the opening of an account for him. This would provide the
applicant with an excuse for not being at the BFC function.
[11]
On 25 September 2007 the applicant was
called to the Bedford Centre of the first respondent by Van Rooyen,
who informed the applicant
that she wanted to see him regarding his
six weekly performance meeting. Van Rooyen also informed the
applicant to bring along
with him the forms that he had filled for
the client that he had seen on Friday afternoon and that had caused
him not to be able
to attend the BFC function. After his meeting with
Van Rooyen the applicant was told to wait for a certain Mike Livanos
who wanted
to speak to him. In the meeting with Livanos the applicant
was asked again about the reasons for his failure to attend the BFC
function on the previous Friday. The applicant repeated his story
about seeing a client that was leaving for USA as his reason for
not
being able to attend the function.
[12]
After leaving the meeting with Livanos,
the applicant contends that he realised that persisting with the lie
that he had told for
not being at the BFC meeting was wrong and he
decided to come clean. He phoned Van Rooyen and told her everything
as it had really
happened. He also attempted to phone Livanos but
could not get hold of him. Van Rooyen had undertaken to discuss the
matter with
Livanos and, according to the applicant, she thanked him
for being honest enough to come clean and tell her the real truth.
[13]
Applicant was then summoned to a
disciplinary hearing where he was charged with misconduct relating to
dishonesty for misrepresenting
the facts pertaining to his non
attendance of a BFC meeting on the Friday. The applicant was also
suspended from work pending the
disciplinary inquiry. A disciplinary
inquiry was set down for 12 October 2007, where the applicant pleaded
guilty to the charge
preferred against him. He was duly convicted as
charged and in terms of his plea. Pursuant to the conviction the
applicant was
dismissed from the first respondent’s employment
and his name was also put on the register of employees dismissed for
dishonesty
(REDDs), which is an interbank blacklist. Banks that are
members of REDDs in practice do not employ a person listed on that
list.
The listing is for life and it does not expire. The name of a
former employee that has been put on that list remains there for good
unless the conviction for dishonest conduct is overturned. This
effectively means that the former employee that has been put on
the
list is most unlikely to ever find employment in the financial
services or the banking sector for the duration of his life.
Indeed
the applicant states that after his conviction, listing and dismissal
as aforesaid he has applied for work at all major
the major banking
institutions in the country but he has not been able to secure any
employment because of his REDDs listing.
[14]
Being dissatisfied with the sanction of
dismissal and the listing on the REDDs list, the applicant approached
the Gauteng Region
of the CCMA, challenging the substantive fairness
of his dismissal by the first respondent. In due course the matter
went for arbitration
under the auspices of the third respondent. The
second respondent was the arbitrator appointed to deal with the
arbitration. After
hearing evidence from both sides the second
respondent dismissed the applicant’s claim of the alleged
substantively unfair
dismissal by the first respondent. It is that
arbitration award that forms the subject of the present review
application.
[15]
In the founding affidavit in support of
his review application the applicant contends that;
I.
The actions of the applicant set out above
did not warrant the charges that the applicant was charged with,
alternatively, did not
constitute “dishonesty” as was
intended in the first respondent’s codes and procedure,
justifying a listing on
REDDs or disbarment as a representative in
terms of the FAIS Act;
II.
In the circumstances of the
applicant’s position the “untruth” did not result
in any harm suffered by the first
respondent or prejudice to the
first respondent, but was rather what can be described as a “white
lie”;
III.
Neither did the applicant obtain any
financial benefit from the “untruth” for himself. The
only benefit the applicant
wished to obtain was good performance
during his PIP and a satisfied client for the first respondent;
IV.
The conduct of the applicant was not of a
serious nature and should be addressed in terms of progressive
discipline by means of
a warning and guidance rather than dismissal
resulting in the applicant’s permanent expulsion from a working
environment
which has been the only or most significant permanent
working environment that the applicant had been exposed to during his
permanent
employment history;
V.
The finding of guilt for dishonest conduct
in the specific circumstances relating to the incident in question
did not justify a
sanction of dismissal and the resultant REDDs
listing and disbarment from FAIS positions in the future;
VI.
The second respondent could not, on the
evidence led before him, reasonably and justifiably have come to the
conclusion that he
did.
[16]
The applicant’s review
application is opposed by the first respondent, which has filed an
affidavit in opposition thereto.
In its answering affidavit , deposed
to by one Sharon Magdelene Moodley, the first respondent contends
that;
I.
The applicant acted dishonestly and
continuously lied to the first respondent in order avoid continuation
of the Performance Improvement
Program and possibly dismissal for
poor performance;
II.
The applicant’s lie constitutes
dishonesty, more particularly as it was meant to conceal the true
circumstances of the applicant’s
failure to attend the function
which was the fact that the applicant had committed another act of
poor performance which could
have led to an elongated period of
performance improvement program and/or dismissal for poor
performance.
III.
The nature of the applicant’s
misconduct is of such a serious nature that dismissal was the only
reasonable sanction. The
applicant’s conduct in this regard had
the potential that the first respondent could have taken him out of
the performance
improvement programme with the understanding that he
had improved his performance while in fact he had not, which could
have had
disastrous consequences for the first respondent;
I
V.
The commissioner’s award accords in
each material respect with the evidence which was led at arbitration.
His assessment of
the evidence of the witnesses and the way he
described them is entirely justifiable on an examination of the
record.
On
the bases set out above the first respondent argued for the dismissal
of the applicant’s review application.
[17]
The first respondent has a Disciplinary
Code which, amongst other things, lists offences that may result in
dismissal without previous
warnings. In terms of Part 6 of first
respondent’s Disciplinary Code, examples of such dismissible
actions include:
Dishonesty of any nature,
such as:
·
Theft, misappropriation or unauthorised
possession of property or funds belonging to the bank, or another
employee or a customer;
·
Deliberately giving untrue, misleading or
wrong information or instructing a subordinate to give such
information;
·
Falsification of the bank’s records,
including attendance register’s call sheets, expense claims,
doctor’s certificates;
·
Bribery or corruption, including giving or
accepting money or other items to receive or provide special favours;
·
Unauthorised use of bank property or
equipment;
·
Passing on business or customer information
to unauthorised parties;
·
Unauthorised setting up or participating in
a business in competition with the bank or a business which unfairly
benefits from the
bank or at the employee’s position in the
bank;
·
Fraud or forgery (signing another person’s
signature), including assistance to outsiders to defraud the bank or
customers.
Serious misconduct
against others such as:
·
Causing wilful damage to property belonging
to the bank, another employee or a customer;
·
Assault or fighting;
·
Sexual harassment, including sexual
advances, suggestions or comments, request for sexual favours and
other conducts of a sexual
nature which negatively affects the
atmosphere or relations in the workplace or other employee’s
dignity;
·
Other harassment which humiliate another
person or persons and / or create a hostile or intimidating
environment; and
·
Intimidation and / or incitement of other
employees.
·
Causing a loss to the bank by not following
rules or procedure;
·
Allowing another employee to perform
transactions with your password or PIN;
·
Failing to disclose important information
in, for example application forms;
·
Breaking the bank’s requirements
regarding confidentiality of information;
·
Any act which damages the bank’s good
name or reputation;
·
Gross negligence which results or may
result in a loss to the bank;
·
Refusal to carry out a lawful and
reasonable instruction or deliberatelty acting contrary to such
instructions;
·
Absence from work for six or more working
days without notification to management or without a valid reason;
and
·
Any other act or behaviour which is
considered so serious that it destroys the bank’s ability to
trust the employee or makes
the employment relationship intolerable
for the bank.
[18]
It is common cause that the applicant
lied to his supervisor, Van Rooyen, and to Livanos with regard to his
reasons for not attending
the BFC function that he was scheduled to
attend on the Friday in issue. It was argued on behalf of the first
respondent that such
lie fell within the category of dismissible
actions without previous warning that is envisaged in the first
respondent’s
Disciplinary Code in that it was dishonesty by
deliberately giving untrue, misleading or wrong information, which is
listed in
the Code as a dismissible offence. On the other hand it was
argued on behalf of the applicant that the lie that was told by the
applicant as aforesaid was merely “a white lie” which
does not fall in the category of dishonesty envisaged in Part
Six of
the first respondent Disciplinary Code set out above. It is clear
from the list of dismissible charges relating to dishonesty,
argued
the applicant’s counsel, that virtually all of these charges
relate to matter so serious that criminal charges will
also ensue
when an employee is found to be guilty of such charges. It could
never had been the intention of the complier of the
Code that, viewed
against the seriousness of the charges listed in Part 6, an employee
telling his or her superior that a client
is going overseas when he
is not in order to avoid his or her PIP being reviewed in a negative
light would constitute the type
of dishonesty that is envisaged in
the Code, justifying dismissal, proceeded the argument in favour of
the applicant. The disastrous
effect of the charge, the conviction
and the sanction imposed on the applicant is such that a reasonable
decision maker in the
position of the second respondent would never
have given the award that the second respondent gave in the
applicant’s submission.
As already stated, the first
respondent’s counsel argued to the contrary and submitted that
the award is perfectly in order
and it brooks of no interference by
this court.
[19]
The proper approach to be adopted by
this court in dealing with arbitration reviews is trite and it has
been clearly set out in
a number of decided cases, chief amongst
which is
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
2008 (2) SA 24( CC)
Also reported at
(2007) 28 ILJ 2405 (CC) and
[2007] 12 BLLR 1097
(CC).
In a nutshell, the test is whether a reasonable decision maker may
reasonably arrive at the same conclusion that the decision maker
whose decision is under review, has arrived at. In
Sidumo’s
case the manner in which a commissioner, such as the second
respondent herein, should approach the dismissal dispute before him
is also clearly expostulated. Summarily, a commissioner should
determine the dispute as an impartial adjudicator, taking into
account the totality of the circumstances. He/she will necessarily
take into account the importance of the rule that had been breached,
the reason the employer imposed the sanction of dismissal, the basis
of the employee’s challenge to the dismissal, the harm
caused
by the employee’s conduct, whether additional training and
instruction may result in the employee not repeating the
misconduct,
etc. A commissioner is not given the power to consider afresh what he
or she would do but simply to decide whether
what the employer did
was fair. In essence, in this review application I have to determine
whether the decision reached by the
second respondent in the award
that forms the basis of this review is one that a reasonable decision
maker could not reach. If
the answer is in the affirmative, the
application has to succeed. Conversely, if the answer is in the
negative, the application
has to founder. The
Sidumo
test has recently been reconfirmed in
Edcon
Ltd v Pillemer NO (2009) 30 ILJ 2642 (SCA),
where it was further held that the focal point of enquiry in
arbitration award review applications is the reasonableness of the
award and that the court should focus not only on the conclusion
arrived at but also on the material before the commissioner when
making the award.
[20]
In the arbitration award the second
respondent, in his survey and analysis of evidence and argument
presented before him at the
arbitration, correctly found that the
applicant had admitted lying to his supervisor in order to prevent a
complaint against him
reaching management’s ears since he was
already on a performance management program. The second respondent
then expresses
the view that the reason for the applicant telling the
lie is an aggravating instead of a mitigating factor if he knew that
his
performance was being monitored and he wanted to ensure that
management did not become aware of a further complaint about his
performance.
This, reasoned the second respondent, shows that the
applicant had a clear and deliberate intention to mislead management
and to
prevent certain information from getting to management’s
attention, which increases his blameworthiness.
[21]
I am of the view that the reasoning of
the second respondent set out above is not sound and that the
decision on the basis thereof
is one that a reasonable decision maker
could not reach. In my view the lie told by the applicant was merely
occasioned by baseless
fear and panic on his part. It should be
remembered that on the ungainsaid evidence of the applicant there was
no fault on his
part whatsoever with regard to the problems
encountered in the opening of Van der Merwe’s account. There is
no suggestion
that there was anything that he should have done but
incompetently failed to do with regard to that transaction. That he
was sent
on a week’s course and another employee of the first
respondent took over and informed Van der Merwe that her account had
been declined, without any reference to the applicant, can hardly be
blamed on the applicant. Accordingly, had applicant clearly
thought
through the threat by Van der Merwe to lay a complaint against him
and report him to his superiors he would have realised
that after due
investigation by his employer he would have been exonerated from any
blame. It was merely blind panic and irrational
fear on the part of
the applicant that caused him to tell the lie in my view. In the
circumstances the lie and the other conduct
on the part of the
applicant did not prejudice the first respondent in any way in real
terms. The report by Van der Merwe would
also not have affected his
performance programme.
[22]
The second respondent himself
acknowledges in his award that not every lie would constitute the
type of dismissible dishonesty that
is envisaged in the first
respondent’s Code of conduct set out above. He recognises that
there are situations where, for
example a young employee finds
himself in a position where he has to tell a “white lie”
to a supervisor for being a
few minutes late, or where during
business hours he dashes to a girlfriend’s office for a cup of
coffee. Such lies are not
too serious and they may well be for an
understandable or forgivable motive where the “misleading”
does not really
go to the heart of the trust relationship. In my
view, and taking into account all the circumstances surrounding the
telling of
the lie in issue herein, a reasonable decision maker would
conclude that the lie falls in the category of such “white
lies”.
It is very significant that on the ungainsaid evidence
that was led before the second respondent, it was the applicant
himself,
on his own, who was pricked by his own conscience to realise
that it was wrong to perpetrate the lie that he had told and that he,
on his own, called his superiors, confessed to earlier lying and set
the record straight by telling the true story as it was. Those
are
hardly the actions of a compulsive liar actuated by dishonesty of
such a nature that the trust relationship between him and
his
employer may be said to be destroyed in consequence of the lie.
[23]
Considering the disastrous effect of
the guilt finding for dishonesty and the sanction that was imposed
with its disastrous effect
of putting a complete and permanent stop
to the applicant’s career in the financial services field, I am
of the view that
a reasonable decision maker could not reach the
decision that has been reached by the second respondent herein. As
pointed out
in
Sidumo’s
case one of the considerations that should be taken into account by
the commissioner is the effect of the dismissal on the employee
and
his service record. To have the applicant’s career permanently
destroyed through the REDDs listing for the type of the
lie in issue
herein, is, in my view, totally unjustifiable and a decision which no
reasonable decision maker, with the material
placed before the second
respondent, could reach. It is but cold comfort that in the last
paragraph of his award that the second
respondent has recommended,
without ruling, that the first respondent should consider removing
the applicant’s name from
the REDDs register. The unrefuted
evidence by the applicant is that this recommendation has not been
followed by the first respondent
and that it has proved totally
impossible for him to obtain employment in the financial services
sector in consequence of the decision
and the REDDs listing. It is
also worth mentioning that the arbitrator’s finding that the
applicant’s behaviour must
have had a detrimental effect on the
relationship of confidence and trust between the parties is devoid of
basis. Since the first
respondent elected to lead no evidence at the
arbitration hearing there was no evidence adduced to show that the
confidence and
trust relationship had been destroyed between the
parties, thus warranting the sanction of dismissal of the applicant
(See Edcon Ltd) (supra).
Moreover, even on first respondent’s Code, a dismissal is not
an inevitable sanction even if the applicant’s conduct
were to
fall within the purview of the list of dismissible offences.
[24]
In the premises I am of the view that
the review application should succeed. I am, however, satisfied that
the first respondent
was not without justification in opposing the
application, hence I see no reason to mulct it with a costs order.
[25]
In the result, I make the following
order :
1.
The second respondent’s arbitration
award dated 30 April 2007 under the Case Number GAJB37956/07 be and
is hereby reviewed
and set aside.
2.
There will be no order as to costs.
_________________________________
P
ZILWA
ACTING
JUDGE OF THE LABOUR COURT
Appearances:
For
the Applicant: Adv. H.E Marx
Instructed
by: Smit Sewgoolam Inc
For
the Respondent: Mr E. Matyolo
Instructed
by: Perrot, Van Niekerk & Woodhouse Inc
Date
of Hearing: 14 January 2010
Date
of Judgment: 22 January 2010