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[2011] ZALCJHB 71
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Nebe v Commission for Conciliation Mediation and Arbitration and Others (JR 2973/09) [2011] ZALCJHB 71 (18 August 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: JR 2973/09
Not reportable
In the matter between:
PHUMELELE NEBE
….......................................................................................
Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND ARBITRATION
…......................................................
First
Respondent
COMMISSIONER M PHALA N.O
….................................................
Second
Respondent
STANDARD BANK OF SOUTH
AFRICA
…..........................................
Third
Respondent
JUDGMENT
BHOOLA J:
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 the
award of the second
respondent (“the arbitrator”) dated 24 September 2009
issued under case number GAJB20333-09 in
which he found the dismissal
of the applicant to have been procedurally and substantively fair.
.
Background
[2]
The applicant was employed by the third respondent as a Business
manager in June 2007. The third respondent operated two types
of
business accounts – optima accounts which are small accounts
for businesses with a turnover of under five million rand
and focus
accounts where the minimum turnover was five million rand. The bank’s
customer value proposition (CVP) set out
the differences between the
two types of accounts. It also ranked managers according to their
performance in terms of the CVP and
this in turn determined their
performance bonuses. The applicant as business manager was
responsible for opening the high value
focus accounts. In 2008 he was
under informal counselling for poor performance and did not receive a
performance bonus for that
year. Thereafter it was discovered that he
had opened optima accounts but passed them off as focus accounts in
order to reflect
an increase in his sales performance. This
constituted dishonesty and he was charged as follows : “[a]lleged
dishonesty in
that you falsified your sales figures when you opened
optima accounts and recorded them as focus accounts and received
credit for
this. In doing so, you were given credit for sales that
should not have been allocated to you”.
[3]
On 24 June 2009, a day before his disciplinary enquiry, the applicant
submitted his letter of resignation, giving the requisite
30 days’
notice. At his disciplinary enquiry the following day he was found
guilty of the charge of dishonesty and the sanction
of dismissal was
imposed. The applicant referred a dispute arising from his alleged
unfair dismissal to the first respondent but
it could not be resolved
at conciliation and proceeded to arbitration. The arbitrator issued
an award in which he found the dismissal
to have been procedurally
and substantively fair.
Grounds
of review
[4]
The applicant relied in his founding affidavit on the following two
grounds of review :
The
arbitrator has unjustifiably and /or incorrectly committed a gross
irregularity in failing to listen to the applicant’s
evidence
concerning an example of business practice and accountability which
would have enabled him to understand the conventional
practice of
opening accounts; and
The
arbitrator failed to provide guidance to the applicant and in so
doing failed to comply with a duty to guide and assist lay
litigants.
[5]
These grounds were supplemented by the following :
The
arbitrator unjustifiably and/or incorrectly committed a gross
irregularity in finding that his dismissal was both procedurally
and
substantively unfair notwithstanding the fact that the third
respondent failed to call crucial witnesses, namely Riaan Visser,
the current team leader and Joelene Gordon, the former branch
manager, both of whom were aware of the conventional practice of
opening optima and focus bank accounts at the branch where the
applicant was employed. The third respondent advanced no explanation
for its failure to call them at the arbitration despite having
called them as witnesses in the disciplinary hearing.
The
arbitrator unjustifiably and/or incorrectly committed a gross
irregularity in not finding that the third respondent has failed
to
prove its case on a balance of probabilities notwithstanding the
fact that its only witness, Koen, gave evidence of a poor
quality in
that he was not conversant with the conventional practice as
applicable to the opening of the optima and focus accounts
since he
had only recently joined the third respondent and testified that he
had only “worked with the applicant as a business
manager for
about a month”.
The
arbitrator unjustifiably and/or incorrectly found and/or committed a
gross irregularity by finding that the third respondent
has led
sufficient evidence to show that the applicant’s dismissal was
both procedurally and substantively fair notwithstanding
that each
and every account that was initiated by the applicant was properly
checked and approved by Visser, who never found
any falsification of
bank records by the applicant before the account was opened by the
support officer.
The
arbitrator unjustifiably and/or incorrectly found and/or committed a
gross irregularity by finding that the applicant’s
explanation
defied logic and it was highly improbable that the third respondent
could have allowed the applicant to effectively
reduce its potential
to earn a fee through a particular type of account but still allow
him to benefit from the same unfortunate
situation, notwithstanding
the fact that there was not a shred of evidence to show exactly how
much the applicant benefited from
such a situation.
Analysis
[6]
The applicant submitted that the “common practice”
defence emerged for the first time in the arbitration and must
therefore be held to be an afterthought which borders on dishonesty.
It had not been mentioned in the applicant’s explanatory
statement nor in his evidence at the disciplinary enquiry, and was
opportunistically mentioned at the arbitration where Visser
and
Gordon were not called and could not rebut it. In any event the
applicant bore the evidentiary burden of adducing proof of
the
“common practice”, particularly in light of Koen’s
evidence that other employees who conducted themselves
similarly were
dismissed. The arbitrator’s conclusion therefore that the third
respondent had adduced sufficient evidence
to show that the dismissal
was procedurally and substantively fair is not an unreasonable one in
this context.
[7]
Despite Koen having only worked with the applicant for a month he was
able to testify that the practice related to the value
of accounts as
contained in the CVP was standard across the bank. In these
circumstances there was no need for the arbitrator to
have applied
the cautionary rule to his evidence as a single witness. Furthermore
the applicant did not contest Koen’s evidence
that:
he
was responsible for focus accounts with a turnover of five million;
he
opened optima accounts and passed them off as focus accounts and he
benefited from such conduct;
he
was undergoing a performance review when this occurred;
in
his explanation he did not mention that this was a common practice
in the bank or at the branch; and
the
bank had dismissed other employees who engaged in similar conduct.
[8]
Koen testified that the applicant, as a manager, was expected to
behave with integrity and honesty and the checking of accounts
by his
team leader was mainly to determine compliance with FICA and did not
extend to whether the account was allocated to the
correct segment.
The applicant moreover had a clear understanding of his job
description. This had also been the effect of Visser’s
testimony at the disciplinary enquiry.
[9]
It is not correct to state that no evidence was led as to how the
applicant could have benefited from the inflated account figures.
The
arbitrator found that direct evidence was led that bonuses paid to
managers were based on the number and value of accounts
opened. The
arbitrator specifically found that the applicant did not dispute that
he opened accounts on a lower segment, and if
he passed them off as
optima accounts this would increase his sales figures and improve his
chances of earning a bonus. In his
explanatory statement moreover he
expressed resentment about not getting credit for opening lesser
value accounts.
[10]
The arbitrator, in determining whether the third respondent had
proven the fairness of the dismissal, was in essence making
a value
judgment on the evidence before him. Unless he reaches a conclusion
that is so unreasonable that it could not have been
reached by a
reasonable decision maker on the material before him, this court
cannot interfere with the decision. It certainly
is constrained from
interfering on the basis that it might have come to a different
conclusion. This principle was eloquently expressed
by Patel JA in
Palaborwa Mining Co Ltd v Cheetham & Others (
2008) 29
ILJ
306 (LAC) at [13] as follows :
“
Sidumo
enjoins a court to remind itself that the task to determine the
fairness or otherwise of a dismissal falls primarily within
the
domain of the commissioner. This was the legislative intent and as
much as decisions to different commissioners may lead to
different
results, it is unfortunately a situation which has to be endured with
fortitude despite the uncertainty it may create.
I have to remind
myself that the test ultimately is whether the decision reached by
the third respondent is one that a reasonable
decision-maker could
reach in all the circumstances. On this test I cannot gainsay the
decision of the third respondent.”
[11]
It is not correct moreover that the arbitrator prevented the
applicant from leading evidence on an example of accountability
at
the bank. He simply chided him about using an example inapplicable to
the situation in order to detract from the question. He
then ventured
an example which was more pertinent which the arbitrator permitted.
This portion was however inexplicably excluded
from the extract from
the evidence quoted in his heads of argument. The applicant had
explained : “Okay, opening of accounts,
if you give me an
application I check everything, If I sign authorising it, I sign that
I have checked it. I will sign that it
is correct and I release it on
the computer for use by the customer. Should something be wrong, if
something wrong is found then
I am accountable and not my subordinate
because I have a chance to give it to him or her to say correct
here”. The arbitrator
correctly determined the fact that it was
improbable that the third respondent would create segments and reward
performance of
employees based on specific segments only to allow the
applicant from benefitting from opening accounts in any segment
outside
his job functions.
[12]
Insofar as he relies on the failure to assist him as a layperson
there is no indication from the record of the arbitration
proceedings
that he required any assistance or did not understand the process or
issues. Insofar the duty to assist his representative
in presenting
his case, this ground of review is not sustainable. There is no
indication from the record that the applicant’s
representative
required assistance or sought it, or that the applicant was in any
manner prejudiced by the manner in which he was
represented. Aligned
to this ground the applicant raises a new ground of review in his
heads of argument for the first time, to
the effect that the
arbitrator committed a gross irregularity by cross examining him.
This does not appear from the record to constitute
a justifiable
ground for criticism of the award. In any event a commissioner has a
discretion, afforded to him or her by section
138 of the Act, as to
what mode of hearing to adopt and his robust questioning of the
applicant, which appears to have been done
in order to elicit clarity
on certain issues and resulted in a confirmation of evidence already
tendered rather than eliciting
new issues, cannot be said to
constitute a gross irregularity.
Order
[13]
In the premises, I make the following order:
The
review application is dismissed. There is no order as to costs.
.
_____________
Bhoola J
Judge of the Labour Court
of South Africa
Date of hearing: 10
August 2011
Date of judgment: 18
August 2011
Appearance:
Mr Nebe represented
himself.
For the Third Respondent:
Mr Cithi, Perrott, Van Niekerk Matyolo Inc.
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