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[2010] ZALCJHB 4
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NUM obo Kgapeng v Commissioner For Conciliation, Mediation And Arbitration and Others (C814/06) [2010] ZALCJHB 4 (23 April 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE NO: C814/06
In
the matter between:
NUM
obo
I
KGAPENG
Applicant
AND
COMMISSIONER
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
S.M.
OSMAN N.O
Second
Respondent
HOTAZEL
MANGANIES
MINE
Third
Respondent
JUDGMENT
Molahlehi J
Introduction
[1]
This is an application to review the
arbitration award under case number NC760/06 dated 29
th
November 2006 issued by the second respondent, (“the
commissioner”). In terms of the arbitration award, the
commissioner
found the dismissal of the applicant who was represented
by NUM to have been both substantively and procedurally fair.
[2]
The third respondent has applied for
condonation for the late filing of its answering affidavit. Having
regard to the explanation
tendered for the lateness of the filing of
the answering affidavit, I see no reason why such late filing should
not be condoned.
Background facts
[3]
The applicant, Mr Kgapeng was prior to his
dismissal by third respondent employed as a miner during June 2006.
The applicant was
charged and dismissed for allegedly tempering with
the dates on a doctor’s sick note.
[4]
It is common cause that Dr Grobler
issued a sick note advising that Mr Kgakatsi (Kgakatsi) was not able
to attend work from the
18
th
September 2005 to 20
th
September 2005. Kgakatsi submitted such a medical certificate to the
third respondent for the purposes of explaining his absence
from work
on those days reflected therein.
[5]
The sick note when presented to the third
respondent apparently appeared to have been interfered with. It was
for this reason that
the third respondent conducted an investigation
about the authencity of the medical certificate.
[6]
During the investigation, the applicant
made a statement which indicated Kgakatsi was responsible for the
change of the dates on
the medical certificate. Kgakatsi was as a
result of the statement made by the applicant charged with
misconduct, found guilty
and dismissed. However on appeal it was
found that the person who tempered with the sick note was the
employee and not Kgakatsi.
The chairperson of the appeal upheld the
appeal and directed that Kgakatsi be re-instated and then issued a
final written warning
against him.
[7]
Following the outcome of the appeal hearing
of Kgakatsi, the applicant was charged with the following:
“
6.1
making falls written and oral statements on the 25
th
October 2005 and 1 November 2005 which led to Kgakatsi’s
dismissal, and
6.2
forgery in that Kgapeng change the dates on the medical certificate
as issued by Doctor Grobler.”
[8]
The employee being unhappy with the outcome
of the disciplinary hearing lodged an appeal. His appeal was
unsuccessful but made subject
to further investigation. A further
appeal was convened at the end of March 2006 cheered by a different
person to the one who cheered
the earlier one. A second appeal was
dismissed and the dismissal of the applicant confirmed.
[9]
The employee being unhappy with the outcome
of the appeal hearing then referred a dispute concerning an alleged
unfair dismissal
to the CCMA challenging both the procedural and
substantive fairness of his dismissal.
The
Grounds for Review and the Award
[10]
The applicant contended that the
commissioner committed gross irregularity by accepting incorrect and
contradictory evidence and
thus rendered the outcome concerning the
fairness of his dismissal unjustified. The employee further
criticised the commissioner
for accepting hearsay evidence contrary
to the provisions to the Law of Evidence Amendment Act 45 of 1998.
[11]
The commissioner in his analysis of the
evidence presented during the arbitration hearing started of by
indicating that the applicant
failed to challenge the version of the
respondent that the dismissal was substantively fair. In this respect
the commissioner found
that the employee was responsible for the
alteration of the sick note and that he was aware that that conduct
constituted an act
of dishonesty.
[12]
The commissioner says that the sanction of
dismissal was in line with the policy of the respondent and therefore
fair. The commissioner
arrived at the conclusion that the dismissal
of the applicant was fair on the bases of the evidence of Mr Serema
(“Serema”),
who testified that the doctor had not change
the dates on the medical certificate and that he was told by Kgakatsi
that the applicant
had changed the dates on the medical certificate.
[13]
The doctor’s receptionist, Miss
Motlapi (“Motlapi”) testified that she was approached by
the applicant and Kgakatsi
who told her that the applicant had
cancelled the sick note. Motlapi testified further that Kgakatsi
indicated that they need a
sick note otherwise the applicant could be
dismissed and further nobody should know that they had visited the
doctors room. Kgaketsi
also requested that Motlapi should, if asked,
accept that the date on the medical certificate was changed by her.
It would appear
that initially Motlapi refused but under pressure
agreed to comply with the request by the applicant and Kgakatsi. She
however
testified that although she had agreed as per the request by
the applicant and Kgakatsi she had resolved on her own that she would
not do it.
[14]
The commissioner accepted the version of
Motlapi and found her to be a credible witness who was eager to tell
the truth.
[15]
The chairperson of the appeal hearing
testified that he adjourned the case when Kgakatsi accused the
applicant of having changed
the sick note. He testified that he
adjourned the hearing for further investigation and avoid having to
prejudice the employee.
[16]
The chairperson of the disciplinary hearing
testified that the applicant did not dispute the allegations which
were made against
him. He also found that the applicant contradicted
himself during the hearing when he said that he did not change the
sick note
and later on admitted having done so.
[17]
The investigator of the allegations against
the applicant, Mr Prinsloo (“Prinsloo”) testified that he
interviewed Dr
Grobler who indicated that he had not made changes to
the sick note.
[18]
The case of the applicant during the
arbitration hearing was that he had accepted the medical certificate
from Kgakatsi and that
he did not notice the changes until he was so
informed by the HR department. He denied ever visiting the doctor’s
room to
have the sick note changed.
[19]
The commissioner found that the applicant
was not a satisfactory witness because he failed to answer questions
during cross examination
or pretended not to understand questions put
to him. According to the commissioner the applicant claimed to have
been confused
because he had two sick notes. In this respect the
commissioner had the following to say:
“
23.
The applicant proved to be a deplorable witness and was often
hesitant in answering questions and behaved as if he did
not
understand the questions, unlike the enthusiasm in his testimony in
chief. I am not inclined towards the version of the applicant
I am of
the opinion that though the reason for the applicant having tampered
with the sick note is not known, the applicant had
in fact tampered
with the note. The applicant is therefore guilty as charged.
24.
Further to the above I am not
satisfied that the applicant was notified of the disciplinary
hearing. Mr Seremi had issued preliminary
charges to the applicant.
According to the policies of the respondent it was satisfactory to
issue preliminary charges whilst
the investigation was conducted into
the misconduct of an accused. The applicant on page 33 signed for the
notice. He testified
that the applicant did not challenge the
evidence at the disciplinary hearing nor did he cross-examine any of
the witnesses. The
applicant had also lodged on appeal. The
preliminary notification would be followed by a formal notification.
This gives the respondent
the opportunity to articulate it’s
charges”
Evaluation
[20]
The test for review is set out in
Sidumo
& Another v Rustenburg Platinum Mine Ltd & Others (2007) 28
ILJ 2405 (CC)
paragraph 110 as follows:
“
To summarise,
Care phone held that section 145 of the LRA was suffused by the then
constitutional standard that the outcome of an
administrative
decision should be justifiable in relation to the reasons given for
it. The better approach is that section
145 is now suffused by
the constitutional standard of reasonableness. That standard is
the one explained in Bato Star: Is
the decision reached by the
commissioner is one that a reasonable decision-maker could not
reach? Applying it will give effect
not only to the
constitutional right to fair labour practices, but also to the right
to administrative action which is lawful,
reasonable and procedurally
fair.”
[21]
In my view, the commissioner’s
decision cannot be faulted for unreasonableness. As appears from the
above discussion it is
apparent that the commissioner accepted the
version of the respondent in coming to the conclusion that the
dismissal was fair.
[22]
It is common cause that Dr Globber issued a
sick note which was presented to the third respondent. The employee
did not dispute
that the date on the sick note had been altered but
however disputed that he was responsible for the alteration.
[23]
The version of Kgakatsi is that he and the
applicant visited the doctor’s rooms and requested the
receptionist to say that
she was responsible for changing the dates
on the sick note. This version was confirmed by the receptionist who
as indicated earlier
had initially refused to comply with the request
but under pressure agreed whilst knowing that she would not do it.
[24]
It is apparent from the reading of the
arbitration award that the commissioner resolved the conflicting
versions as to who was responsible
for the alteration of the sick
note by way of a credibility finding.
[25]
The approach adopted by the commissioner is
correct and is in line with the one established in our law. See also
Rex v Dhlungwayo
1948 (2) SA 677
(A),
City Lodge Hotels
Ltd v Gildenhuys NO & Others
(1999)
20 ILJ 2332 (LC) and
De Beers
Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
[26]
As concerning the appropriateness of the
sanction it has already been indicated above that the commissioner
found the sanction of
dismissal to be in line with policy of the
respondent and accordingly appropriate in the circumstances. Thought
out the process
the applicant denied involvement in the alteration of
the sick note. He also denied all other facts which are clearly in my
view
supported, without any doubt, by the probabilities. He for
instance denied having visited the doctor’s rooms in the face
of un-contradicted evidence of both Motlapi and Kgakatsi.
[27]
In
De Beers
Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)
at 1059 D- E it was held that:
“
Acknowledgment
of the wrongdoing is the first step towards rehabilitation. In the
absence of a recommittement to the employers’
workplace values,
an employee cannot hope to re-establish the trust which he himself
has broken. Where, as in this case, an employee,
over and above
having committed an act of dishonesty, falsely denies having done so,
an employer would, particularly where z high
degree of trust is
reposed in an employee, be legitimately entitled to say to itself
that the risk of continuing to employ the
offender is unacceptably
great.”
Inconsistency
[28]
The approach adopted when dealing with the
issue of inconsistency in disciplinary hearings is set out in
SACCAWU
& Others v Irvin Johnson Limited (1999) ILJ 2303 (LAC)
at
2313, paragraph 29 the court held that:
“
It
was argued before us by Mr Grobler for the appellants that by not
dismissing four employees who had also participated in the
demonstration, the respondent applied discipline inconsistently. It
is really the perception of bias inherent in selective discipline
which makes it unfair. Where, however, one is faced with a large
number of offending employees, the best that one can hope for
is
reasonable consistency. Some inconsistency is the price to be paid
for flexibility, which requires the exercise of a discretion
in each
individual case. If a chairperson conscientiously and honestly, but
incorrectly, exercises his or her discretion in a particular
case in
a particular way, it would mean that there was unfairness towards the
other employees. It would mean no more than that
his or her
assessment of gravity of the disciplinary offence was wrong. It
cannot be fair that the other employees profit from
that kind of
wrong decision. In a case of a plurality of dismissals, a wrong
decision can only be unfair it is capricious, or induced
by improper
motives or, worse, by a discriminating management policy.”
[29]
In the present instance it cannot be
disputed that Kgakatsi had some role to play in the dishonest act
associated with the altering
of the sick note. He accompanied the
applicant to the doctor’s room to persuade Motlapi to lie about
how the change to the
sick note was effected. He was thus aware of
the offence committed by the applicant. However the offence committed
by Kgakatsi
was of a lesser server nature than that of the applicant.
The respondent took action against Kgakatsi but on the bases of the
severity
of the offence imposed a final written warning and not
dismissal as was the case with the applicant.
Hearsay evidence
[30]
The contention that the commissioner
allowed hearsay evidence is based on the testimony of both Serema and
Prinsloo who testified
that Dr Grobler never made changes to the sick
note. Dr Grobler never testified during the arbitration hearing.
[31]
Hearsay evidence in our law is governed by
the provisions of section 3(1) of the Law of Evidence Amendment Act
45 of 1988 (LEAA)
which provides that hearsay evidence shall not be
admitted as evidence, unless the party against whom such is to be
adduced agrees
to its admission-, the person upon whose credibility
the probative value of the evidence depends testifies or –
“
(c)
The court having regard to -
(i)
The nature of the proceedings,
(ii)
The nature of the evidence:
(iii)
The purpose for which the evidence is tendered-
(iv)
The probative value of the evidence-,
(v)
The reason why the evidence is not given by the person upon whose
credibility the probative value of
such evidence depends-,
(vi)
Any prejudice to a party which the admission of such evidence might
entail-, and
(vii)
Any other factor which should in the opinion of the court be taken
into account is of the opinion that such
evidence should be admitted
in the interests of justice.”
[32]
It is now well established that arbitration
proceedings are covered by the provisions of the LEAA. See
Southern
Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Workers
Union & another (2000) 21 ILJ 1315 (LAC) and (Swiss
South Africa
(Pty) Ltd v Louw NO & others (2006) 27 ILJ 395 (LC)-
[2006] 4
BLLR 373
(LC)
President of the
Republic of South Africa v South African Rugby Football Union and
Others
1999 (10) BCLR 1059
(CC).
[33]
In
Makhathini
v Road Accident Fund
(2002) 1 ALL SA 413
(A)
the Supreme Court of Appeal in dealing with the issue of admission of
hearsay evidence had the following to say:
“
It
seems to me that the purpose of the amendment was to permit hearsay
evidence
in
certain circumstances where the application of rigid and somewhat
archaic principles might frustrate the interests of justice.
The
exclusion of the hearsay
statement
of an otherwise reliable person whose testimony cannot be obtained
might be a far greater injustice than any uncertainty
which may
result from its admission. Moreover, the fact that the statement is
untested by cross-examination is a factor to be taken
into account in
assessing its probative value. . . . There is no principle
to be extracted from the Act that it is to
be applied only sparingly.
On the contrary, the court is bound to apply it when so required by
the interests of justice.
In
each case the factors set out in section 3(1) (c)
are
to be considered in the light of the facts of the case. The weight to
be accorded to such evidence, once it is admitted, in
the assessment
of the totality of the evidence
adduced,
is a distinct question.
The
factors set out in section 3(1) (c) (i)
–
(vii)
should
not be considered in isolation. One should approach the application
of section 3(1) (c)
on the
basis that these factors are interrelated and that they overlap. See
Hewan v Kourie NO and another 1993 (3) SA 233
(T) at
239B–C and Schmidt and Rademeyer’s Bewysreg (supra) at
481 where the learned authors state.”
[34]
In the present instance it is important to
note that the employee never disputed that the doctor’s sick
note was altered and
that those alterations were not made by Dr
Grobler. The evidence of the witnesses of the respondent who
testified that Dr Grobler
did not alter the sick note was not
challenged during cross examination. The respondent was thus on the
bases of the above authority
entitled to assume that the version of
the two witnesses was accepted as being correct and therefore the
necessity to call Dr Grobler
to testify never arose. Thus the
approach adopted by the commissioner cannot be faulted as being
irregular or unreasonable.
[35]
In the light of the above evaluation I am
of the view that the applicants have failed to make out a case
justifying interference
with the arbitration award of the
commissioner. Therefore the applicant’s application to review
and set aside the commissioner
arbitration award stands to fail. I
see no reason in law and fairness why the costs should not follow the
result.
[36]
In the premises the review application is
dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
28 January 2010
Date
of Judgment :
23 April 2010
Appearances
For
the Applicant :
Adv N Cloete
Instructed
by :
Neville Cloete Attorneys
For
the Respondent: Adv Polelis
Instructed
by :
Nkaiseng Chenia
Baba Pienaar Swart Inc