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[2011] ZALCD 49
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Uthungulu Municipality v Mathe and Others (D717/07) [2011] ZALCD 49 (14 January 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE
NO. D717/07
Reportable
In
the matter between
UTHUNGULU
MUNICIPALITY
Applicant
And
NHLANHLA
MATHE
First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
LINDIWE
PURITY
MYENI
Third
Respondent
Judgment
Cele
J
Introduction
[1]
This is an application for the review and setting aside or correction
of an arbitration award dated 10 October 2007, issued
by the first
respondent as an arbitrator of the second respondent. The arbitration
award was issued in favour of the third respondent
who then opposed
this application. On an
earlier
date, that is 11 August 2010 condonation for the late filing of the
answering affidavit was granted in this matter.
Factual
Background
[2]
The third respondent, Ms Myeni was in the employ of the applicant.
Since 1 December 2000 she was appointed into the position
of a
Cashier. Part of her job entailed the registration of businesses as
levy payers. She had to receive payments in respect of
such levies
for which she had to issue receipts. She utilized a cubicle as her
working office. The business of the applicant did
not involve the
registration of close corporations. The applicant accommodated its
staff by permitting it to a reasonable use of
the telephone for
private purposes provided such telephone calls were identified and
paid for.
[3]
In January 2006 Ms Myeni went on her vacation leave. Due to the fact
that her husband passed away at the time, her leave was
extended
until March 2006. On 6 April 2006 Ms Myeni was also on leave as was
her colleague one Ms Sigwazi who did the same type
of work done by Ms
Myeni. A member of the South African Police Services (SAPS),
according to his dress code, arrived at the cashiers’
desk and
requested either Ms Sigwaza or Ms Myeni but he left when he was told
by Ms Padayachee and Ms Monoko, the cashiers on that
day that those
he sought were on leave.
[4]
About two hours later the SAPS member returned to the cashiers. He
had documentation for the registration of a close corporation,
known
as C. K documents, a copy of his identity book and R750.00. Ms
Padayachee examined the documents but told him that such registration
was never done by the applicant. In the course of the exchange Ms
Padayachee called Ms Du Plessis, a Supervisor of the department
and
reported the request that had been made to her. The matter was then
reported to Mr Bhajun, the Accountant Consumer Billing
of the
applicant. Mr Bhajun in turn later reported the matter with an
internal memorandum to the Assistant Chief Financial Officer
Ms
Swift. Ms Swift directed that an investigation be conducted. The
cubicle of Ms Myeni was then searched for any documents which
could
suggest that she was registering close corporations for members of
the public during office hours and possibly using office
material. A
bundle of documents was retrieved from Ms Myeni’s office which
was then confiscated.
[5]
Ms Myeni was then charged with three acts of misconduct, namely:
1.
Theft of R200. It was changed to negligence for a failure to issue a
receipt of R200 for Mr Musa Ntuli
for the registration of his
business into applicant’s data base:
2.
Use of the employer’s property/equipment for purposes other
than the employer’s business,
namely a telephone and a fax
machine during September 2005 till 29 March 2006 for administrative
services and/or registration of
close corporations;
3.
Conducting private business during company business time.
[6]
She was found guilty of all three charges. In respect of the first
count of negligence, she was given a final written warning
but was
dismissed for the second and third charges. On 2 February 2005 Ms
Myeni had been convicted of the use of a fax machine
of the applicant
for her private purposes, which she had done in 2004. She was given a
final written warning valid for six months.
However, when the
dismissal sanction was imposed, the 2005 final written warning was
not taken into account as it had expired.
[7]
She then referred an unfair dismissal dispute for conciliation and
thereafter for arbitration. Parties entered into a pre-arbitration
discussion and filed a minute thereof. The dispute concerned the
second and the third counts. The first respondent found the dismissal
to have been substantively and procedurally unfair and he ordered the
applicant to re-instate Ms Myeni with no loss of earnings.
The
applicant initiated the present application.
Chief
findings of the first respondent
[8]
To the extent relevant for this application the first respondent made
the following findings:
Ø It was
common cause that Ms Sigwaza had not been disciplined for registering
close corporations. There was no reasonable
or acceptable explanation
for the failure by the employer to take disciplinary action against
Ms Sigwaza. Several witnesses testified
that some members of the
public had asked for Ms Sigwazi for purposes of asking her to
register close corporations for them. A
letter was extracted from the
municipal computer that tendered to show that Ms Sigwazi was abusing
the property of the municipality
and was conducting her business
during the employer’s time. The failure discloses preferential
treatment of Ms Sigwazi by
the employer. Such failure to take
disciplinary action is capricious, arbitrary and unfair ;
Ø Ms Swift
conceded that the SAPS member who came to the cash hall was carrying
the ck papers for other reasons than
for Ms Myeni to register a
business for him. This concession speaks to the unreliability of the
evidence of the employer in relation
to the policeman and the woman
who are said to have called at the cash hall to register their
businesses. The Bargaining Council
was invited to speculate in favour
of the employer that both persons had wanted to register their close
corporations during working
hours;
Ø There was
no direct evidence from the people themselves that Ms Myeni had
registered close corporations for them
during business time.
Therefore the claim that the employee registered businesses for her
company during business hours was merely
speculative;
Ø Ms Myeni
admitted the documents found in her cubicle to be hers. She denied
that keeping them in her office was to
be construed as an indication
that she registered close corporations for members of the public
during the employer’s business
time. Under cross-examination
numerous speculative questions were put to her but she remained
steadfast in her claim that she had
reasons other than those
suggested by the employer to keep the documents in her cubicle. Her
claim was not discredited and was
to be accepted. While the employer
claimed that more documents such as blank ck papers and business
cards of some suppliers were
found, no weight could be attached to
those as they were not tendered in evidence and there was no
explanation for that failure;
Ø It was not
in dispute that Ms Myeni had made the telephone calls identified with
her. She paid for those amounting
to R52. 54. The next two printouts
were issued while she was on leave and later when she was on
suspension. While the calls did
not appear to be excessive, no
yardstick was shown for what constituted moderate use of the
telephone. There was also no comparison
with any other calls made.
Nor had it been brought to her attention that she was abusing the
telephone. There was no evidence to
support the claim that Ms Myeni
used the telephone of her employer for her own private use. No
evidence was produced to negate
the claim by the employee that the
telephone number 035 796 2575 belonged to the Department of Local
Government and Traditional
Affairs, Esikhawini, where she had a
friend. Her telephoning that number was not in breach of any
standards;
Ø It emerged
from the printout of faxes produced by the employer that during
September, October November and December
2005, as well as January
2006, several documents had been faxed to SCW using the fax number
012 362 4103. The employer also produced
a letter faxed by the
employee to SCW in October 2004, in which she left her contact
details including her cellular telephone number.
There was no direct
evidence of Ms Myeni having helped members of the public to register
their close corporations. The second problem
was that the fax machine
was communal and not limited to a use by Ms Myeni alone. Ms Sigwazi
had also access to using it. In the
absence of other, undisputed
evidence there was no reasonable basis to accept with merits, that Ms
Myeni was guilty of having sent
the faxes to SCW.
Ø Ms Sigwazi
had in the past been disciplined for the similar conduct but the
employer had not considered that she
might be guilty of sending the
faxes. It was wrong to draw the inference that Ms Myeni was guilty;
Ø There was
no evidence that Ms Myeni had telephoned SCW during the period
relevant to dismissal whereas there was
irrefutable evidence that Ms
Sigwazi had made various such telephone calls. Even when Ms Myeni had
gone on leave, the sending of
faxes continued. It was alarming that
the employer had resisted the admission of such evidence which had
the effect not only of
exonerating the employee but also of
demonstrating inconsistency on the part of the employer. There were
reasonable grounds to
doubt that Ms Myeni sent the faxes complained
of;
Ø The
probabilities of the matter favoured Ms Sigwazi having sent the
faxes. Therefore the inference which the employer
sought to draw from
the proven facts could not be drawn in the matter;
Ø There were
several flaws that seriously tainted the disciplinary hearing and
rendered the dismissal procedurally
unfair. The hearing went ahead
even when Ms Myeni indicated that she did not wish to go ahead in the
absence of a lawyer and she
was not given an opportunity to find an
alternative lawyer because Mr Zwane had taken ill;
Ø The
municipality did not accept the explanation that Mr Zwane was ill but
clung to an earlier correspondence wherein
Mr Zwane was withdrawing
on account of unpaid fees. The chairperson preferred to rely on the
past letter and ignored an explanation
given by an attorney from Mr
Zwane’s office. Compelling her to proceed unrepresented on the
guise of accommodating a witness
was unfair because it ignored the
inability of the employee to state her case before the tribunal. She
has always deferred the
presentation of her case to her attorney;
Ø Over and
above the undue haste of the chairman the manner in which it was
conducted was strange and confusing to
the point of rendering the
hearing unfair. Mr Ntuli was recalled after both the employee
and the prosecutor had presented
closing arguments;
Ø Based on
the evidence presented by the parties the employer failed to
discharge the onus that the dismissal was fair.
Therefore the
dismissal of the employee was procedurally and substantively unfair.
[9]
In support for the review application the applicant proffered the
grounds of review as outlined below.
§ The
finding concerning the probabilities of Ms Sigwazi having sent the
documentation or utilized the resources
of the applicant during the
period in question was unreasonable, given that the documentation
pertaining to that business enterprise
was found in Ms Myeni’s
cubicle and that her explanation in respect thereof was implausible
and inconsistent with the common
cause facts;
§ A
negative inference should have been drawn from the failure to call Ms
Sigwazi as a witness of Ms Myeni. It
was evident that she would have
contradicted Ms Myeni’s testimony;
§ There
is no explanation in the award by the first respondent as to what Ms
Myeni’s explanation was for
having the various ck documentation
in her office, whether they were for family and friends or not and
why that explanation should
be accepted in preference to the only
logical and reasonably possible explanation, namely that Ms Myeni was
in fact registering
close corporations from the applicant’s
offices during working hours and utilizing the applicant’s
resources;
§ Ms
Myeni admitted being in possession of the ck documentation in her
cubicle. That seen together with the fact
that enquiries were made,
on more than one occasion, with Ms Padayachee for Ms Myeni to assist
them with the registration of the
close corporations and that it was
communicated to her that Ms Myeni was responsible for such
registrations at the offices of the
applicant, demonstrated that, on
probabilities, Ms Myeni was guilty of the charges preferred against
her;
§ No ck
documentations were found in Ms Sigwazi’s cubicle. The only
document found was on her computer which
she used from the South
African Revenue Services (SARS), in which they had described her as a
bookkeeper. There was no suggestion
that she conducted the
bookkeeping function, if at all, during her business hours.
Bookkeeping was quite
evidently a function which could be performed outside normal working
hours;
§ Given
Ms Myeni’s disciplinary record, it is evident that no
reasonable decision maker could have determined
that Ms Myeni was not
guilty of the charges preferred against her, and accordingly, no
reasonable decision maker could have found
that the dismissal was
substantively unfair;
§ Ms
Myeni’s conduct in dishonestly denying her guilt had
irretrievably affected the relationship of trust
justifying her
dismissal;
§ In
relation to procedural unfairness the story changed from the attorney
having placed on record that his withdrawal
due to lack of funds to
one that the attorney was ill. Given the circumstances of the matter
and the availability of witnesses,
the applicant was entitled to
proceed on the day in question. Ms Myeni was well able to defend
herself. The issues in dispute were
simple, factual only and she was
well equipped to deal with them.
[10]
Ms Myeni’s brief grounds in opposition to the review
application will now be outlined;
o Mr Biyela, being
the deponent to the founding and the supplementary affidavits did not
appear to have personal knowledge
of the facts he referred to more so
as he referred to common cause facts which he failed to outline;
o A reasonable and
plausible explanation was offered to the first respondent for the
possession of the papers found in her
cubicle. The first respondent
did not err in accepting that explanation;
o Ms Myeni was not
guilty of the misconduct and she did not abuse the applicant’s
resources during the period in question
as suggested by Mr Biyela;
o Ms Myeni was
disciplined for the September 2004 incident and was given a final
written warning which was no longer valid
at the time of her unfair
dismissal and therefore such a warning ought not to have been
considered for purposes of sanction;
o The findings made
by the first respondent concerning the probabilities of Ms Sigwazi
having sent the faxes to the Shelf
Company Warehouse are correct and
are supported by evidence. The evidence of the applicant itself was
that the faxes continued
to be sent even when Ms Myeni was on leave
which clearly demonstrated that the faxes could not have been sent by
her. It was an
inescapable conclusion that the person who sent the
faxes while Ms Myeni was on leave was the same person who sent them
while she
was at work;
oThe dispute pertaining
to negligence was never referred to the second respondent and
therefore any reference to it was misguided;
oIt was speculative to
say that Ms Sigwazi, if called as a witness, would have contradicted
Ms Myeni’s evidence. It was always
open to the applicant to
call Ms Sigwazi as its witness if it intended to conduct a fair
disciplinary enquiry against Ms Myeni.
If any adverse inference was
to be drawn from a failure to call her it should be held against the
applicant;
oMs Myeni had the same
access to the fax machine and the telephone facility as did Ms
Sigwazi;
oThe first respondent’s
findings on procedural fairness were correct. It had been indicated
to the chairperson of the disciplinary
hearing that Ms Myeni would be
unable to proceed with the enquiry on her own and that she wanted
legal representation. The chairperson
having initially allowed legal
representation ought to have postponed the enquiry for the attorney
to attend the hearing. The attorney,
Mr Zwane sent another attorney
from his office to apply for a postponement. An attorney who is not
placed in funds would not send
a colleague to make an application for
a postponement. Instead he would have withdrawn;
oThe applicant did not
lead a shred of evidence to say that Ms Myeni was registering close
corporations during the employer’s
business hours. The
applicant only required of the first respondent to speculate from
unsubstantiated evidence while it evidence
constantly referred to Ms
Sigwazi as the possible culprit. In the enquiries that were made to
Ms Padayachee Ms Sigwazi featured
prominently;
oThe telephone printout
reveals that, during the period in question Ms Sigwazi frequently
telephoned Shelf Company Warehouse as:
o1-30 September 2005 she
telephoned 11 times;
o1-30 November 2005
she telephoned 7 times;
o1- 31 December 2005 she
telephoned 7 times;
o1-31 January 2006 she
telephoned 4 times;
o1- 28 February 2006 she
telephoned 1 time;
o1- 31 March 2006 she
telephoned 4
times;
oDuring the same period
no telephone calls were reflected against the name of Ms Myeni. On Ms
Sigwazi’s telephone bill several
calls were made to Status
Restaurant, a company she was helping, which showed that she was
engaged in private business using the
company’s resources and
time. No such evidence existed in Ms Myeni’s case. If anyone,
Ms Sigwazi was the one that should
have been dismissed.
Evaluation
[11] This application is
specifically not based on the provisions of
section 145
(2) of the
Labour Relations Act 66 of 1995
, hereafter referred to as the Act, as
is often the case with most review applications in this court. The
ground of review relied
upon is that the arbitration award being
assailed is not reasonable. Therefore, the applicant seeks to rely on
the right to an
administrative action which is lawful, reasonable and
procedurally fair- see paragraph 110 in
Sidumo v Rustenburg
Platinum Mines Ltd 2008 (2) BCLR158 (CC) at p189.
The test for
review set out in
Sidumo
is whether or not the decision
reached by the commissioner is one that a reasonable decision maker
could not reach. It remained
common cause between the parties at
arbitration that the applicant did not have direct evidence to
incriminate Ms Myeni in the
two charges referred for arbitration but
relied on circumstantial evidence.
[12] At the outset I need
to agree with the applicant that the first respondent misconstrued
the evidence about whether or not Ms
Sigwazi was disciplined by the
applicant for her misconduct which was similar to that of Ms Myeni
and which covered the same period.
Ms Sigwazi pleaded guilty to the
charges and was found guilty. With her consent, she was suspended
without a pay for six months.
She had had no prior disciplinary
record. This issue had in fact been common cause between the parties.
The position taken by Ms
Myeni at arbitration was to deny having
committed the charged acts of misconduct. Her case was not that of
admitting liability
and then complaining about the inconsistent
application of a sanction. The question will then be whether having
misconstrued this
aspect of evidence the decision he reached is the
one that a reasonable decision maker could not reach.
[13] In essence the case
of the applicant was simply that Ms Myeni admitted being in
possession of the ck documentation in her cubicle.
That seen together
with the fact that enquiries were made, on more than one occasion,
with Ms Padayachee for Ms Myeni to assist
them with the registration
of the close corporations and that it was communicated to her that Ms
Myeni was responsible for such
registrations at the offices of the
applicant, demonstrated that, on probabilities, Ms Myeni was guilty
of the charges preferred
against her.
[14]
It was common cause between the parties that the office dealing with
the registration of close corporations was the Shelf Company
Warehouse, which parties referred to as the SCW. The undisputed
evidence of Ms Myeni is that in all, 34 telephone calls were made
by
Ms Sigwazi to SCW during the period September 2005 to March 2006.
None were made by Ms Myeni. Ms Sigwazi’s telephone bill
showed
that several calls were made by her to Status Restaurant. The
evidence was that the faxes continued to be sent from the
applicant’s
offices for the registration of close corporations even when Ms Myeni
was on leave which could clearly, on evidence,
not have been sent by
her. There is no basis for holding that the person who sent these fax
messages could not continue to do so
when Ms Myeni was at work. Ms
Myeni and Ms Sigwazi share office space and equipment at the cash
hall.
[15]
From the totality of evidence led at the arbitration it remained
probable that the acts of misconduct with which Ms Myeni was
charged
are those which Ms Sigwazi admitted and for which she was punished by
being suspended from work. This conclusion is reached,
notwithstanding the very fact that Ms Myeni was found with ck
documents. It was not the only probable inference to draw from that
finding that she was registering close corporations during office
hours and using applicant’s equipment.
[16]
The first respondent considered the explanation that Ms Myeni
proffered and with the benefit of having been involved in the
trial,
he accepted her evidence. The applicant has made a bold but
unsubstantiated criticism on this aspect without laying any
solid
basis for the rejection of this finding by the first respondent. In
these proceedings I have an obligation to keep in mind
a need to
observe a distinction between a review and an appeal and to guard
against being overzealous in setting aside the arbitration
award
merely because it might not coincide with either my opinion or that
of the applicant.
[17]
The allegations on the irretrievable break down of relations was
premised on a submission that Ms Myeni had dishonestly denied
the
allegations against her and that she was not fairly treated during
the internal disciplinary hearing. Her denial of the allegations
against her was meritorious and the applicant must accept that it
make an error of judgment in finding her guilty of the two counts.
In
my view, it will not be necessary to pursue the issue of procedural
unfairness. If it had been, I would have found in her favour.
For
purposes of this application, I had to avoid a consideration of those
grounds of review outlined in the heads of argument which
were not
made in the founding and supplementary affidavits. An applicant for
review stood or fell by the grounds of review outlined
in the
pleadings, see
Director of Hospital Services v Misty
1979 (1) SA
626
(A) and Northam Platinum Ltd v FGanyango NO & Others (2010)
31 ILJ 713 (LC).
[18]
I conclude that the decision reached by the first respondent in this
matter fell within the range of reasonableness and accordingly
it is
not a decision which a reasonable decision maker could not reach. I
have reflected on the costs implications in this matter
and conclude
that fairness dictates that the costs should follow the results
notwithstanding the resumption of employment relations
between the
parties. The following order will then issue:
1.
The review application in this matter is dismissed.
2.
The applicant is ordered to pay the costs.
3.
Ms Myeni is to report for duty on 24 January 2011 in the terms of the
arbitration
award.
____________
Cele
J.
DATE
OF HEARING
: 26
NOVEMBER 2010
DATE
OF JUDGMENT
: 14
JANUARY 2011
APPEARANCES
FOR
APPLICANT
: Adv CA
NEL
Instructed
by
: Truter
James de Ridder Inc
FOR
3
RD
RESPONDENT
: Adv I
PILLAY
Instructed
by
: Mhlanga
Inc.