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[2011] ZALCCT 52
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Manuel v Jordan NO and Others (C471/2008) [2011] ZALCCT 52 (7 June 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
no: C471/2008
In
the matter between:
ALFRED
MANUEL
.........................................................................................
Applicant
and
B.
JORDAAN N.O.
...............................................................................
First
Respondent
TRANSNET
BARGAINING COUNCIL
.........................................
Second Respondent
TRANSNET
FREIGHT RAIL
............................................................
Third
Respondent
Date
of hearing : 26 May 2011
Date
of judgment : 07 June 2011
JUDGMENT
STEENKAMP
J
Introduction
The
applicant was dismissed for misconduct by the third respondent,
Transnet Freight Rail. He referred an unfair dismissal dispute
to
the Transnet Bargaining Council (the second respondent). The
arbitrator (Prof Barney Jordaan, the first respondent) upheld
the
dismissal.
Applicant
has applied for the review, correcting and/or setting aside of the
arbitration award dated 14 May 2008.
Applicant
filed his review application on 15 July 2008, two weeks outside the
time period prescribed in Section 145 of the Labour
Relations Act,
1995 (“the LRA”).
On
14 April 2009 Applicant filed the record of the arbitration
proceedings in terms of Rule 7A (6) of the Labour Court Rules
together with Applicant’s supplementary founding affidavit.
The Bargaining Council had filed the record on 25 August 2008.
In
terms of rule 7A(8), the applicant should have delivered his
supplementary affidavit within 10 days after the registrar had
made
the record available. The supplementary affidavit was thus delivered
some seven months late.
On
24 April 2009 Third Respondent filed its answering affidavit.
Applicant
did not file a replying affidavit.
At
the hearing of this application, the parties agreed that, insofar as
I need to consider the applicant’s prospects of
success in the
review application in order to consider his application for
condonation, it would be sensible to hear full argument
on the
merits of the review application. Should I find that the applicant
is entitled to the relief sought on the merits, it
would quite
obviously mean that he had good prospects of success; and
conversely, should I find that the application falls to
be dismissed
on the merits, his absence of prospects of success, viewed
retrospectively, must be taken into account in considering
condonation.
Condonation
Applicant’s
application is brought in terms of Section 158 (1) (g) of the LRA as
read with Section 145 of the LRA.
Section
158 (1) (g) of the LRA does not provide a time period for the filing
of review papers. The Labour Appeal Court has adopted
the common-law
rule that a review application must be brought in a reasonable
time.
1
It
has been accepted – and the parties agreed -- that the six
week period stipulated for bringing a review application in
terms of
Section 145 of the LRA should serve as a benchmark for what
constituteS a ³reasonable periOd” in terms of
Section 158
1) (g) of the LRA.
2
Qpphicant’s
aqpLicatim. for condonat)on$nor thm late nili.g on the review
application must be assessed in iCco2dance with
the gmnerally
accaptedrrincipLes for the gr!.tin'of sondonation,
2013
oaMel}:
11.1.
the eegree /f latenEss;-
11.2.
The ReasOn foR the leTEnesS{M
11.3
apPlHca.t’s prospects in succeeding in obtaining the relief
sought against Respondents; and
11.4
Any other relevant factors, including the importance of the matter
and prejudice to Respondents.
In
terms of Rule 12 of the Labour Court Rules, condonation of
non-compliance with any period prescribed by those rules may be
granted on good cause shown.
In
determining good cause, the Labour Appeal Court has held that the
principles of good cause are to be interpreted as follows:
“
These
facts are inter-related. They are not individually decisive… A
slight delay with a good explanation may help to compensate
for
prospects of success which are not strong. The importance of the
issue and strong prospects of success may tend to compensate
for a
longer delay. There is a further principle which is applied and that
is without a reasonable and acceptable explanation for
the delay, the
prospects of success are immaterial, and without prospects of
success, no matter how good the explanation for the
delay, an
application for condonation should be refused (cf
Chetty
v Law Society, Transvaal
1985
(2) 756 (A) at 765 A – C;
National
Union of Mineworkers and Others v Western Holdings Gold Mine
(1994)
15 ILJ 610 (LAC) at 613)..”
3
Applicant’s
explanation for the late filing of his review application was that
he sought to procure the services of his
attorneys of record to
assist him with this application and that he struggled to make the
necessary financial arrangements to
secure their services. He
provides no further details as to when he instructed those at|orneys
or ghat steps he@had!taken to
turSue Te rev)ewapplication /n his
owN nr through iis trade union, the$Souti Afzican Railways
and$Harbours Workmrs nion (SARHWW)-
of which he was the dePuty
branch ch%irMan. NeithEr did`his attorney depoe0to a
confirmato2y!ov suq5lementary affifAvit.
Third
Resp/ndent /ppoSed Appli'ant’S applicatioo for ãoîdonation
for the late filyng of his review applica4ion
on the basis thatz
15.1)In
the conte|t of the sixweek Period(prdsg2ibed in Sectaon 145 of the
LRA being conwidered a “reasonable perIodô,
a two week
delAy in launching0a review applicatIon is substantial;
15.3
Applicant has not filEd a confirmatory affidavit fromhis attorney{ of
record in support of his reasons for not complying with
the
presCribed time period (ine. A “reasonAble(peri/d”); and
1u.s
Applic`nt has not explained why he dit Not file his review
applIcation personally or with the assistance`of dhe SoutH African
Railway Harboqr Union((“SArWHU”), of which he was the
Deputy Chairperson of the Cape Town branch, prior to uhe ezpiry
of
the six weak0period.
r
Coetzee
, for the applicant, submitted that two wmuks hs not a
substanukal period. In the context of the period of six"weeos
`ccepted
as a “recsonacle period”`in whmch |o delivdr
the rewiew application, I"do not afree. Tim de'ree ob
la4enews!is
/ne thisd of the permod in which the apq|ication should
jaVebeen delivered. ThaT is asubstantial dtlay.
R}le
7@(00) of the`Äabour Curt Rules(pro|ides!thau an`aq0licaot in
review proceedings may file a replying affidavit to any
issues
raised in an answering affidavit that require explanation. Applicant
has not filed a replying affidavit to address the
shortcomings in
his condonation application. I agree with Mr Cassells, for the third
respondent, that his failure to do so can
only be interpreted as an
admission that Applicant has no explanation for not taking the
necessary steps to ensure that his review
application was filed
within a reasonable period, alternatively, that as Applicant has
refused the invitation to attach an affidavit
from his attorneys of
record confirming the correctness of the version relied upon in his
founding affidavit (which Third Respondent
has expressly
challenged), the version relied upon by Applicant to explain his
delay cannot be substantiated.
Despite
the poor explanation for the delay, I will take into account the
applicant’s prospects of success. I do so by considering
the
merits of his application more fully hereunder.
The
third respondent pointed out that, neither in Applicant’s
founding affidavit nor in his supplementary affidavit has
Applicant
linked any of his criticisms of the arbitration award that is the
subject matter of his review application to the grounds
of review
set out in Section 145 of the LRA or the Constitutional standard of
reasonableness formulated in
Sidumo
and Others v Rustenburg Platinum Mine Ltd and Others
,
4
.
At the hearing, though, Mr
Coetzee
explained that the application
is focused on the sanction confirmed by the arbitrator; and that, in
the applicant’s submission,
the sanction of dismissal was so
unreasonable that no reasonable arbitrator would have considered it
fair.
Despite
the excessive delay in delivering the supplementary founding
affidavit and amended notice of motion once the Bargaining
Council
had delivered the record to the registrar, the third respondent did
not oppose the application for the late delivery
of those pleadings.
The reason is that the third respondent accepted the applicant’s
explanation that there was a problem
with transcribing the tapes,
which had not been properly marked; and that the applicant had
difficulty in obtaining funding to
pay the transcription service and
his attorneys. Despite my misgivings about extensive delays that
remain unexplained, I have
decided to grant the applicant
condonation for this delay in the proceedings, given the generous
stance of the third respondent.
Legal
basis for applicant’s review application
As
the arbitration was conducted under the auspices of the Bargaining
Council and not the CCMA, the provisions of Section 158
(1) (g) of
the LRA apply:
“
The
Labour Court may, subject to Section 145, review the performance or
purported performance of any function provided for in this
Act on any
grounds that are permissible in law.”
The
grounds of review set out in section 145 are equally applicable to
review applications brought under section 158 (1) (g) of
the LRA. In
terms of section 145 (2) of the LRA a defect in any arbitration
proceedings that constitutes grounds for review means:
“
(a)
That the commissioner-
committed
misconduct in relation to duties of the commissioner as an
arbitrator; or
committed
a gross irregularity in the conduct of the arbitration
proceedings; or
exceeded
the commissioner’s powers; or
(b)
That an award has been improperly obtained.”
The
grounds of review set out in Section 145 (2) are suffused by the
constitutional standard of reasonableness in terms of the
Constitutional Court judgment
in
Sidumo and Another v
Rustenberg Platinum Mines Ltd and Others
.
The standard of reasonableness required by an arbitrator is whether
the decision reached by the arbitrator was one that a reasonable
decision-maker could not reach. The standard of reasonableness
developed by the Constitutional Court is not an additional ground
of
review but rather the required standard by which the grounds set out
in Section 145 of the LRA are to be interpreted. Relying
on the
reasonableness standard as set out in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
,
5
the Constitutional Court [per
Navsa AJ] found in the
Sidumo
judgment that:
“
That
scrutiny of a decision based on reasonableness introduced a
substantive ingredient into review proceedings. In judging a decision
for reasonableness, it is often impossible to separate the merits
from scrutiny. However, the distinction between appeal and reviews
continue to be significant.”
6
Again,
in the
Sidumo
judgment the court held per Navsa AJ that:
“
(T)he
better approach is that s 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 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.
”
7
In
his judgment in
Sidumo
,
Ngcobo J (as he then was)
interpreted the standard of reasonableness as follows:
“
The
ultimate question in determining whether to interfere with a
commissioner’s award in an arbitral proceedings is whether
the
conduct of the commissioner falls into any of the grounds of review
set forth in s 145 (2) of the LRA, namely, misconduct in
relation to
his or her duties, gross irregularity in the conduct of the
arbitration proceedings, or acting in excess of his or
her powers.
These grounds of review must be interpreted in the light of the
constitutional constraints referred to above and the
primary
objectives of the LRA. This is the interpretive injunction contained
both in s 39 (2) of the Constitution and in the LRA.
(footnote
omitted)
“
Thus
construed, the commissioners are required to act fairly in the
determination of unfair dismissal disputes. If a commissioner
fails
to do so, he or she commits a gross irregularity in the conduct of
the arbitration proceedings and the ensuing arbitral award
falls to
be reviewed and set aside. Similarly, if a commissioner makes an
award which is inconsistent with his or her obligations
under the
LRA, he or she acts in excess of the powers conferred by the LRA and
the award falls to be reviewed and set aside.”
8
Ngcobo
J formulated the test to be applied by commissioners conducting
arbitration proceedings under the LRA as follows:
“
There
can no question that the ultimate test that a commissioner must apply
is one of fairness.”
9
Ngcobo
J confirmed that “(t)he general powers of review of the Labour
Court under s 158 (1) (g) are therefore subject to
the provisions of
s 145 (2) which prescribe grounds upon which arbitral awards of CCMA
commissioners may be reviewed”.
10
The
deficiencies in Applicant’s application for review, to which I
alluded earlier, are highlighted by the principles espoused
by
Ngcobo J:
“
The
grounds of review in s 145 (2) (a) provide a cause of action for the
review of commissioners’ awards by the Labour Court.
Whether an
arbitral award should be interfered with under the provisions of s
145 (2) (a) will depend therefore on whether the
conduct of the
commissioner complained of falls under one or more of the grounds of
review set forth in s 145 (2) (a). It is therefore
for a party
alleging defect in the arbitration proceedings to show that the facts
alleged constitute gross irregularity or misconduct
or how that the
power conferred has been exceeded as the case may be. This will
require litigants to specify the ground of review
relied upon and the
facts alleged as constituting the ground of review relied upon.”
11
The
arbitration award
Applicant,
a coach cleaner supervisor, was dismissed by Third Respondent on 11
March 2008 after being found guilty of seven offences
in a
disciplinary enquiry. These were:
29.1
Fraud, arising from Manuel signing an attendance register and
receiving payment for days when he did not work.
29.2
Gross misconduct, in that Manuel indicated that he was "absent
with authority" without providing the documentation
authorising
his absence.
29.3
Fraud, in that he marked himself present on the attendance register
when he was off sick.
29.4
– 29.6: Gross misconduct arising from various periods of
absence from work.
29.7
Serious misconduct in undermining the authority of a supervisor.
At
arbitration, Third Respondent withdrew charge seven.
In
his arbitration award, the arbitrator found that Third Respondent
had proved charge 1, charge 4, charge 5 and charge 6.
In
respect of charge 2, the arbitrator found that a technical rather
than substantive form of misconduct had been proved, if it
was
misconduct at all. The arbitrator found that the infraction was not
deserving of a formal sanction.
In
respect of charge 3 the arbitrator found Applicant not guilty of the
charge; but added that, to the extent that Applicant was
guilty of
the infraction, this was in all probability a mistake justifying at
most a written warning.
In
assessing the appropriateness of the sanction to be imposed for the
charges that the arbitrator found were proven against Applicant,
he
found that Applicant’s dismissal was substantively and
procedurally fair. In doing so, he concluded that Applicant as
a
supervisor occupied a position of trust and that in that capacity
and in his role as a trade union representative he could
be expected
to set an example. The arbitrator’s finding was that he was in
no doubt that Applicant was aware of the fact
that he had been
overpaid. However, instead of simply paying back what he was due,
Applicant attempted to cover it up, compounding
his error. For that
reason, the arbitrator found that in respect of charge 1 dismissal
was substantively fair.
In
respect of charges 4 to 6 the arbitrator concluded that Applicant’s
absences were serious not only because it was disruptive
for Third
Respondent but also because it was repeated and quite wilful. For
that reason, he found Applicant’s dismissal
on those charges
substantively fair.
Applicant’s
criticism of the arbitration award
At
the hearing of the application, Mr
Coetzee
, for the
applicant, confined his argument to the question whether the
arbitrator’s finding on sanction was reasonable.
In
particular, he attacked the award on the basis that the arbitrator
did not consider mitigating circumstances such as the applicant’s
length of service (20 years) and clean disciplinary record. However,
he did not abandon the criticisms on the merits of the award
set out
in the pleadings altogether. I will therefore consider the
arbitrator’s findings with respect to those charges.
In
respect of charge 1, Applicant criticised the arbitration award in
his pleadings on these grounds:
37.1
He denied that he acted fraudulently;
37.2
The arbitrator ignored his evidence that he completed two separate
variation forms to the effect that he would not be working
on 1 and 2
December 2007 and 15 December 2007, which Applicant transmitted to
Johannesburg;
37.3
The arbitrator found that Applicant’s failure to provide
corroborating evidence of the person to whom Applicant reported
in
Johannesburg to testify on his behalf was crucial despite the fact
that Third Respondent did not and could not offer a contrary
version
in relation to Applicant’s evidence that he had transmitted the
variation forms in relation to the relevant period;
37.4
The arbitrator failed to take into account Applicant’s evidence
that he worked on 17 December 2007 but that he was not
paid for that
day. Instead, the arbitrator placed an undue emphasis on the fact
that Third Respondent had not recovered the amounts
that were paid in
relation to 1, 2 and 15 December 2008;
37.5
The arbitrator’s finding that Applicant “created” a
document “after the fact”, which “alone,
in my
view, constitutes a gross form of dishonesty” was speculative
and not consistent with the record and the arbitrator’s
view
that such (alleged) conduct constitutes a gross form of dishonesty
and/or the facts that sustained it, bore no relation to
the charges
that were levelled against Applicant at the arbitration proceedings.
On
a close reading of the award and the transcript of the record, these
objections are not sustainable. I am satisfied that the
arbitrator’s
arbitration award was one that a reasonable decision maker could
make on the evidence presented at arbitration.
Evidence
in respect of Charge 1
On
a perusal of the arbitration award it is apparent that the
arbitrator evaluated the evidence presented at the arbitration by
Third Respondent’s witnesses, Messrs McLeod (Operations
Manager); Wakefield (Senior Administrative Official); and Benefeld
(Shosholoza Mail, Western Region), as well as the evidence presented
by the applicant regarding the procedures to be followed
in
recording days worked and the subsequent submission of variation
forms in circumstances where those hours were not worked
for
whatever reasons.
The
background evidence presented by Third Respondent’s witnesses
at arbitration in respect of charge 1 was as follows:
40.1
Third Respondent’s employees complete an attendance register in
advance for the period from the 16
th
of the month to the
15
th
of the following month setting out the days on which
they expect to work overtime and Sunday time. As a supervisor,
Applicant completed
his own attendance register and signed that the
information contained was a true statement of actual time worked or
intended to
be worked.
40.2
Actual time worked is recorded on a separate document which is
countersigned by a fellow supervisor. That document is referred
to as
the sign-on document.
40.3
The purpose of recording in advance what overtime and Sunday work is
to be performed is for Third Respondent to confirm that
its employees
do not exceed the agreed overtime and Sunday time.
40.4
If the overtime and/or Sunday time recorded by the employee on the
attendance register is not worked, it is incumbent upon
the employee
to advise Third Respondent thereof by completing an amendment form
indicating the time not worked.
40.5
Any payment of overtime and/or Sunday time reflected on the
employee’s payslip that is not worked is then deducted from
the
employee’s next month’s salary and is reflected on that
payslip.
40.6
All amendments to estimated overtime and/or Sunday time are recorded
on the List Employee Remuneration Info.
40.7
All amendment forms are ordinarily sent by facsimile to the local
senior administration official, Wakefield, who then prepares
a
schedule of overtime and Sunday time due to employees in that region.
Although
Applicant did not work overtime or Sunday time on 1 December 2007, 2
December 2007 and 15 December 2007, Third Respondent’s
head
office did not receive any amendment form from Applicant recording
that fact. Neither did Applicant submit amendment forms
for those
dates to the local senior administrative official, Wakefield, as was
ordinarily done.
Applicant
recorded in his attendance register for the period 16 November 2007
to 15 December 2007 that he would work the following
overtime and
Sunday time:
42.1
1 December 2007 from 07h00-12h00 (five hours);
42.2
2 December 2007 from 07h00-12h00 (five hours); and
42.3
15 December 2007 from 07h00-12h00 and 12h30-15h30 (8 hours).
Applicant
was paid overtime or Sunday time for 1 December 2007, 2 December
2007 and 15 December 2007.
It
is expected of Third Respondent’s employees that upon receipt
of their payslips a reconciliation of the overtime and
Sunday time
paid will be done to ensure that no overpayments have been made in
that regard. The correct procedure would then
be to submit an
amendment form to ensure that the overpayment is deducted from the
employee’s next month’s salary.
Applicant
was issued with a notification to attend a disciplinary enquiry on 4
March 2008,
inter alia
to address the allegation that he had
committed fraud and that on 30 November 2007 he had signed the
attendance register recording
that he intended to work on 1, 2 and
15 December 2007 for which he subsequently received payment despite
the sign-on register
indicating that he was off duty on those dates.
At
the disciplinary enquiry Applicant submitted a bundle of ten
documents. He produced a facsimile transmission slip reflecting
that
ten documents had been faxed to Third Responeent’s head ofæice
on 5 December 2007. Thå discipminary enquirù
commenced
oo 7`March 200< and was finalised on 11 March 7008. The
first`concern raised a4 the disciplinary enquiry regarding
the
bu.dle of documents submitted by Applicant was that, althougi the
facsimile transmissaon smip indicated that ten documents
had0been
tvansmittel to Third Respondent’s head office, the bundle ?f
documents submitted by ApplicAnt con{isted of 91
docuMents.
App|icant(was specifacalmy challenged as to whether the eleventh
document was not the amendment form contained in
the Records Bundle
on page 49. Although Applicant contested that submission, he was not
able to answer that question. A second
concern raised at the
disciplinary enquiry was that Applicant’s bundle of documents
did not include an amendment form for
15 December 2007. At the
conclusion of the first day’s proceedings on 7 March 2007,
Applicant took his bundles of documents
back from the chairperson.
On Tuesday 11 March 2007, Applicant produced a further facsimile
transmission slip for a further page.
Applicant also submitted three
additional documents. The second facsimile transmission slip was
presented by Applicant at the
disciplinary enquiry to reconcile the
fact that his bundle consisted of eleven documents and that the
first facsimile transmission
slip reflected that only ten documents
were transmitted.
During
the disciplinary enquiry Applicant was cross examined as to the fact
that no amendment form had been submitted in respect
of 15 December
2007 and Applicant’s response was that he did not know what
had happened relating to 15 December 2007.
None
of the evidence as set out above presented by Benefeld at
arbitration relating to the events of the disciplinary enquiry
was
challenged by Applicant in the arbitration proceedings.
At
arbitration, Benefeld was referred to an amendment form
12
.
Benefeld stated categorically that that document had not been
presented at the disciplinary enquiry. It was put to him under
cross
examination that that document was the additional document that was
transmitted by facsimile to head office on 5 December
2007. Benefeld
denied that this was correct. Benefeld categorically stated that any
reliance on that document as being the additional
document was a lie
as it post dated the facsimile sent on 5 December 2007.
The
same version, which was not relied upon by Applicant at his
disciplinary enquiry, was put to Third Respondent’s McLeod,
namely that the document in question (page 70 in the Records Bundle)
was the additional document that was transmitted by facsimile
on 5
December 2007.
Both
Third Respondent’s witnesses, McLeod and Benefeld, disputed
the authenticity of the document (page 70 of the Records
Bundle).
Applicant’s
version relied upon at arbitration regarding the submission of the
amendment form for 15 December 2007 differed
materially to his
version submitted at the disciplinary enquiry.
Benefeld
also testified that Applicant’s conduct would constitute fraud
if the amendment was not sent and if the overpayment
of salary was
not corrected, knowing that the overpayment had been made.
In
his evidence, Applicant testified that he forwarded the amendment
forms to Third Respondent’s head office in Johannesburg
to one
Sello Pokwana, also known as Reggie. Applicant failed to furnish any
explanation for not calling Pokwana, who was a material
witness to
Applicant’s case. Pokwana was a material witness as Third
Respondent’s version was that head office had
no record of
receiving Applicant’s amendment forms, which is supported by
Third Respondent’s List Employee Remuneration
Info and
Applicant’s payslips. To lend any credence to Applicant’s
version, it was therefore crucial that Pokwana
give evidence on
behalf of Applicant.
On
Applicant’s own version he retained the originals of the
documents that he allegedly sent by facsimile to Third Respondent’s
head office on 5 December 2007 as he stapled the bundle together and
filed it. At arbitration Applicant only produced a copy
of the
document in question, contained on page 70 of the Records Bundle.
As
Applicant relied upon the document (at page 70) and Third
Respondent’s witnesses challenged the authenticity of that
document, Applicant was required to produce the original of that
document at arbitration. Applicant was unable to do so.
Initially
in explaining why he did not have the original, Applicant stated
that he found the copy produced at arbitration in one
of the bundles
in his office. This was in response to a question by the arbitrator.
Thereafter in response to a question from
Third Respondent’s
representative, Applicant confirmed that he had made the copy from
the original and that he had taken
the original document to the
union’s office and had not collected it from the union’s
office in preparation for the
arbitration. In the context of the
explanation furnished by Applicant’s representative to the
arbitrator during cross examination
of Third Respondent’s
witness Benefeld, Applicant had only collected the document from his
office on the Tuesday prior
to the arbitration (i.e. 4 March 2008).
Applicant made no tender to obtain the original document from the
union when challenged
regarding the whereabouts of the original.
Applicant
was challenged under cross examination whether he admitted the
similarities between the amendment form allegedly submitted
for 1
and 2 December 2007 and the alleged amendment form for 15 December
2007. Inexplicably, even though the similarity of the
documents is
clearly apparent to the naked eye, Applicant denied that
the"documents were sioilar.
Specifically,
it was put to`Applicant under cross examination that the document at
page 70 of the Record was$a forged copy as`it
had been tkppexed
andaltered. Applicant was not pRepared to make the nbvious
concession.
At
the erbitration, tle applicant was qtestioned by Third Respïndent’s
representative as to which documents in the
bundle that Applicant
submitted at the disciplinary enquiry, which were now containel in
Third Respondent’s bundle of documents
for arbitration, were
not part of Applicant’s bundle at the disciplinary enquiry.
This question was put to Applicant as
Applicant contended at
arbitration that page 70 of the Records Bundle was part of the
bundle of documents submitted to Third
Respondent’s head
office on 05 December 2007. Applicant acknowledged that the bundle
that he submitted at the disciplinary
enquiry did not correspond
with the bundle that he alleged at arbitration was the bundle of
documents that were transmitted by
facsimile to Third Respondent’s
head office and Applicant was not able to explain the discrepancies.
Applicant was also
not able to dispute Third Respondent’s
version that Applicant’s bundle of documents had changed at
the arbitration
in order for Applicant to insert the document in
order to manipulate his evidence at arbitration.
Applicant
did not subsequently repay the overpayment of overtime and Sunday
time despite a period of at least two months having
elapsed from his
receipt of that money. Applicant’s response was that it was
not his problem but that of Third Respondent’s
Human Capital
Department. Applicant’s further attempt to explain away his
conduct in not taking steps to address the overpayment
was that he
did not have access to Third Respondent’s premises and that he
was not able to get access to his office. The
futility of that
explanation was exposed by the fact that Applicant was only
suspended on 15 February 2008 and had had access
to his office up to
that date.
Third
Respondent’s witness Wakefield testified that on the Tuesday
before the disciplinary hearing Applicant requested a
blank
amendment form, which Wakefield refused. In his evidence, Applicant
conceded that he done so and explained that he wanted
to submit a
blank amendment form to prove the procedures. When questioned by the
arbitrator why he wished to explain those procedures
with a blank
amendment form to persons who already knew the procedures, Applicant
responded that it was due to the fact that
he was denied access to
his office. The more probable explanation for Applicant’s
request for the blank amendment form
was that put to Applicant in
cross-examination, namely that he wanted to create the document and
that when he could not get the
blank form, he took the second best
option, namely to forge it.
In
his arbitration award the arbitrator recorded the evidence
summarised above and concluded that the document in question was
created after the fact and that in his view, that conduct
constituted a gross form of dishonesty.
As
set out in Third Respondent’s answering affidavit, the
arbitrator’s finding that Applicant was guilty of charge
1 was
a product of sound reasoning based on a proper evaluation of the
evidence presented at the arbitration.
The
arbitrator’s finding that Applicant was guilty of charge 1 was
a decision that a reasonable decision maker could make
based on the
evidence presented at the arbitration.
Evidence
in respect of charges 4 to 6
In
respect of charges 4 to 6, Applicant’s criticism of the
arbitration award is that:
66.1
The arbitrator failed to take into account Applicant’s evidence
to the effect that there was no practice that supervisors
are
required to work every alternate weekend and every weekend during
peak seasons;
66.2
The arbitrator failed to take into account that in respect of charge
4, the applicant’s colleague, Waterboer, had agreed
to stand in
for him;
66.3
The arbitrator’s finding that there was overwhelming evidence
of a long standing practice requiring supervisors to work
every
second weekend and every weekend during peak summer holiday periods
cannot be sustained;
66.4
Although the charge sheet alluded to the fact that there was a roster
for supervisors to work every alternate weekend and every
weekend
during peak seasons, no evidence was led at arbitration to the effect
that such a roster exists.
The
essence of charges 4 - 6 was the same, namely that Applicant was
guilty of gross misconduct for failing to report for weekend
duty
when rostered to do so. Charge 4 related to the weekend of 20 and 21
October 2007, charge 5 related to the weekend of 29
and 30 December
2007 and charge 6 related to the weekend of 12 and 13 January 2008.
It
was not disputed that Applicant did not work on the weekends
referred in these charges.
As
recorded by the arbitrator in his award, all of the witnesses called
by Third Respondent (bar Benefeld) testified to the long
standing
practice of requiring supervisors to work every second weekend and
every weekend during the peak summer holiday period.
The
arbitrator also found that both the documentation before him and
Applicant’s own estimated work schedules supported
the oral
evidence of Third Respondent’s witnesses.
Third
Respondent’s McLeod testified that:
71.1
There was an arrangement in place according to a roster which
indicated that the supervisors would work every second weekend.
This
was to ensure that no employee exceeded the maximum budgeted overtime
and Sunday time;
71.2
Applicant was expected to work every second weekend to look after the
staff under his control;
71.3
In the event that a supervisor was not going to work, he was required
to contact local management telephonically so that alternative
arrangements could be made for supervisor to be on duty;
71.4
It was important for supervision to be present on the weekends as
materials were involved in the cleaning of the trains and
also to
ensure that the trains were properly cleaned;
71.5
The fact that there was a roster recording that the supervisors would
work alternative weekends was proven by the sign-on sheets
of those
employees;
71.6
During the period 1 December to 15 January the supervisors are
required to work every weekend due to it being high peak period.
Wakefield
testified that he worked the same weekend duties as Waterboer and
his colleague Veldsman worked the same weekend duties
as Applicant.
These weekend duties were performed every second weekend.
Veldsman
testified that:
73.1
He worked every second weekend with Applicant;
73.2
The practice of working alternate weekends has been in place for a
long time;
73.3
During high peak period (December and January of each year) the
number of trains increases from fifty two per month to approximately
two hundred and twenty;
73.4
Applicant was supposed to work on 29 and 30 December 2007 and on 12
and 13 January 2008;
73.5
The procedure in the event that a supervisor was unable to work was
that this was to be communicated to the other supervisors.
Waterboer
testified that:
74.1
The document headed “Coach cleaning Culemborg yard” had
been prepared by the previous manager Vorster to ensure
that both
Waterboer and Applicant knew what they must do;
74.2
The practice recorded on pages 33 to 35 (Records bundle) has been in
operation since 1991 when Waterboer commenced his duties;
74.3
High peak period ran from 01 December until 15 January during which
approximately three times as many trains operated;
74.4
During high peak period both supervisors are required to work each
weekend and if a supervisor is unable to do so for whatever
reason,
it is expected of that supervisor to advise the administration
official or his fellow supervisor telephonically of that
fact.
Applicant was aware of the roster schedules;
74.5
Waterboer and Applicant were instructed by their manager, Mlungisi
Ndelela, to work as a team, to respect each other and to
communicate
with each other when dealing with the rescheduling of weekend duties;
74.5
The procedure if the scheduled supervisor was unable to work a
particular weekend was to request the other supervisor to swop
weekends.
74.6
During the high peak period, Applicant was in control on the weekends
that he otherwise ordinarily would have been required
to work.
74.7
Applicant did not work on 20 and 21 October 2007 but he could not
recall any arrangement that Applicant had asked him to work
in his
place.
74.8
Applicant was supposed to work on the weekend of 29 and 30 December
2007.
74.9
He denied that Applicant had never agreed to work the weekend roster
for the high peak period as the previous manager Vorster
would have
advised Waterboer if that was indeed the case.
74.10
In cross examination of Third Respondent’s witnesses,
Applicant’s version was recorded as follows:
74.10.1
There was no roster;
74.10.2
Only one supervisor worked during December;
74.10.3
Applicant never agreed to work over weekends except to come in if
Waterboer needed time off;
74.10.4
Applicant never agreed to work weekends during high peak period.
Applicant
testified that:
75.1
He agreed with his previous manager Vorster to work overtime when
requested, i.e. he would make himself available for overtime
on
request;
75.2
In respect of charge 4, Applicant followed procedures in that he
contacted his manager and thereafter consulted with Waterboer
who
agreed to fill in for him;
75.3
Prior to the disciplinary enquiry proceedings, he had never seen the
document entitled “Coach cleaning Culemborg yard”;
75.4
He works over weekends if Waterboer is not able to take up the shift
and he is requested to do so;
75.5
In respect of the weekends of 29 and 30 December 2007 and 12 and 13
January 2008, he did not work as no request was made and
no
consultation was held that he should work;
75.6
In previous years he had during high peak period worked for a number
of weekends during December, continuously and without
issue on the
instructions of his manager;
75.7
Although he had done so, he denied that it was because the
requirements of the operations were to have better controls and
supervision during high peak period when four or five times more
trains ran;
75.8
The reason he had not worked during high peak period in 2007/8 was
that no meetings had been held with their manager and the
request had
rather come from their direct superior approximately two months
before the commencement of the high peak period.
In
evaluating this evidence, the arbitrator found that the evidence was
overwhelming that there was indeed a long standing practice
of
requiring supervisors to work every second weekend and every weekend
during the peak summer holiday period. The arbitrator
further found
that Applicant’s absences for the periods referred to in
charges four to six were conscious, deliberate,
repeated and
calculated and that Applicant’s conduct therefore constituted
gross misconduct. The arbitrator further found
that Applicant’s
disregard of the instruction that had been given to the supervisors
by their manager, Lungisi Ndalela,
to work together at local level
and to respect one another had been disdainfully disregarded by
Applicant.
Having
had regard to the record of proceedings and the award, it is clear
to me that Applicant’s criticisms of the arbitrator’s
findings in respect of charges four to six are without foundation in
that:
77.1
McLeod, Wakefield, Veldsman and Waterboer all testified to the
longstanding practice that supervisors were required to work
every
second weekend and every weekend during high peak period. On the
probabilities, the arbitrator preferred their version to
the
contradictory version relied upon by Applicant. That finding cannot
be faulted.
77.2
Applicant’s criticisms of the arbitrator’s findings
disregard that even if Applicant was not required to work every
weekend in the high peak period, he would have been required to work
on 29 and 30 December 2007 and 12 and 13 January 2008 as those
weekends were Applicant’s alternative weekends, which Applicant
in any event did not work.
77.3
On his own version, Applicant’s explanation for not working on
29 and 30 December 2007 and 12 and 13 January 2008 amounts
to
misconduct as Applicant suggests that he was entitled to disregard
that request on the basis that it was made by a supervisor
and not a
manager.
77.4
On his own version, Applicant has traditionally always worked all
weekends during high peak period.
The
arbitrator clearly made his findings in respect of charges four to
six based on the evidence presented at arbitration. He
took
Applicant’s evidence into account, but preferred the evidence
of Third Respondent’s witnesses in respect of
the material
issues. Given the analysis above, that was not unreasonable.
Sanction
At
the hearing of this matter, Mr
Coetzee
, in his oral argument,
attacked the reasonableness of the arbitrator’s finding mainly
on the basis that he did not consider
mitigating factors in deciding
whether the dismissal was fair. In order to consider this criticism,
the evidence leading to the
finding that the dismissal was for a
fair reason needs to be considered:
79.1
At the commencement of the arbitration Applicant submitted that he
was not guilty of the misconduct set out in charge 1;
79.2
Applicant acknowledged that Third Respondent has rules relating to
dishonesty and that those rules were known and that the
only issue in
dispute was whether those rules were in fact broken;
79.3
Third Respondent’s witness Wakefield testified that Applicant
was in a position of trust;
79.4
Third Respondent’s witness Benefeld testified that Applicant
was in a particular trust relationship with Third Respondent
and that
he had breached his fiduciary duty to act in good faith in a material
manner;
79.5
Applicant was a shop steward and the deputy chairperson of the Cape
Town branch of the South African Railway and Harbour Union
(“SARWHU”)
which also impacted on Applicant’s proven misconduct.
In
considering the fairness of dismissal as a sanction, the arbitrator
took into account that Manuel, as a supervisor, occupied
a position
of trust. He found that, both in that capacity, and in his role as a
trade union representative, he could be expected
to set an example.
He also took into account that the misconduct was repeated and
wilful.
The
arbitrator further took into account that Manuel had made himself
guilty of a gross form of dishonesty.
When
considering whether the sanction of dismissal is fair, the
arbitrator should take into account the totality of circumstances.
This should normally include a consideration of all mitigating
factors such as the employee's length of service and disciplinary
record. In this case, Manuel had 20 years’ service and a clean
disciplinary record.
However,
where dishonesty is an element of the misconduct, dismissal will in
most instances be the appropriate sanction. As this
court recently
held in
City of Cape
Town v SALGBC
13
:
“
This
court has also reviewed dishonesty in a serious light and has come to
the conclusion in most instances that it results in a
breakdown of
the trust relationship between the parties. In
Hoch
v Mustek Electronics (Pty) Ltd
2000
(21) ILJ 365 (LC);
[1999] 12 BLLR 1287
(LC)
the court held the dismissal of an employee to be fair, where she had
misrepresented her qualifications to her employer. The court
held
that this was sufficient to warrant dismissal notwithstanding the
fact that she had a long service record and was honest in
her work
and notwithstanding the fact that she had misrepresented
qualifications that were irrelevant to her position as a debtor’s
clerk. In
Toyota
South Africa Motors (Pty) Ltd v Radebe and Others
(2000)
21
ILJ
340
(LAC) 344 D-G
the LAC went as far as to hold that certain acts of misconduct were
so serious that no mitigating factor could save the employee
from
dismissal. One example would be where the employee is guilty of gross
dishonesty . . .”
In
the case before me, the arbitrator found that the employee’s
misconduct constituted a gross form of dishonesty. His conclusion
that dismissal was a fair sanction is not so unreasonable that no
other reasonable decision maker could have drawn the same
conclusion. The application for review cannot succeed.
It
follows that the applicant had no prospects of success in his
application for condonation. That aspect must be considered together
with the substantial delay and his poor explanation therefor. The
application for condonation must be dismissed.
Costs
Applicant
has brought the review proceedings against Respondents in
circumstances where the criticisms set out in Applicant’s
application have no merit and have not been linked to any of the
grounds of review set out in Section 145 (2) of the LRA and,
further, in circumstances where Applicant has persisted with his
reliance upon a version which was found at arbitration to have
been
discredited.
Third
Respondent has incurred significant costs in having to trawl through
the lengthy record of the arbitration proceedings in
order to
address the various criticisms that Applicant has recorded against
the arbitration award, none of which have been substantiated
with
reference to Section 145 (2) of the LRA or otherwise by reference to
the record of the arbitration proceedings or relevant
case law. In
oral argument, none of the criticisms of the award, other than
sanction, was seriously pursued.
I
am persuaded that this is an appropriate matter where costs should
follow the result.
Order
I
therefore make the following order:
The
application for condonation for the late filing of the review
application is dismissed.
The
application for review is dismissed.
The
applicant is ordered to pay the third respondent’s costs.
_______________________________
ANTON
STEENKAMP
Judge
of the Labour Court
For
the applicant: Adv Andre Coetzee
Instructed
by: Swartz Hess attorneys
For
the third respondent: Mr Glen Cassells
Instructed
by: Maserumule Inc.
1
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO and Others
[2000] 12 BLLR
1389
(LAC) at para 15 and
JDG Trading (Pty) t/a Bradlows
Furnishers v Laka NO and Others
[2001] 3 BLLR 294
(LAC) at para
15-20
2
Lutchman
v Pep Stores and Another
[2004] 4 BLLR 374
(LC) and
Rustenberg
Platinum Mines Ltd v Monnapula and Others
[2003] BLLR 909
(LC)
at para 34
3
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
LAC at para
10
4
(2007)
28
ILJ
2405 (CC)
5
[2004] ZACC 15
;
2004
(4) SA 490
(CC)
6
Id
at para 108
7
Id
at para 110
8
Id
at paras 164 and 165
9
Id
at para 168
10
Id
at para 189
11
Id
at para 254
12
Contained
at page 70 of the Records Bundle.
13
[2011]
5 BLLR 504
(LC) para [23]