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[2011] ZALCD 42
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First National Bank, A division of Firstrand Bank Ltd v Language and Others (D 416/09) [2011] ZALCD 42; [2012] 5 BLLR 478 (LC) (8 December 2011)
Reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
no: D 416 / 09
In the matter between:
FIRST
NATIONAL BANK, A DIVISION
OF
FIRST RAND BANK LIMITED
....................................................
Applicant
and
STEPHEN
LANGUAGE
.......................................................
First
Respondent
NICCI WHITEAR NEL N.O
.....................................................
Second
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
...........................................
Third
Respondent
Heard
:
1 November 2011
Delivered: 8 December 2011
Summary : Review of decision reinstating senior bank manager –
no misconduct proven – no basis on which award can be
set
aside.
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
issued by the second respondent (the arbitrator) in March 2009 under
case number KNPM22996-07 in a dispute referral arbitrated
under the
auspices of the third respondent. In her award the arbitrator found
that the dismissal of the third respondent (the employee)
was
substantively and procedurally unfair, and granted him reinstatement
as well as back pay of 22 months in the sum of R607 619,
54.
Background facts
[2] The employee held the position of Relationship Manager of the
Ladysmith branch of the applicant bank, and had 34 years’
service at the time of his dismissal on 22 May 2007. He also held a
personal bank account with the applicant.
[3] Prior to 2001 the applicant operated staff accounts with specific
benefits such as reduced bank charges and interest rates
for staff.
From 2001 onwards this practice was discontinued and staff accounts
were treated on exactly the same basis as non-staff
customer
accounts, with staff being given a salary increase to compensate for
the normal bank charges on their accounts.
[4] In a letter dated 7 February 2005 the Chief Executive Officer of
the applicant, Zweli Manyathi, informed staff that reversal
of
charges on their personal accounts was prohibited. They were
instructed that they “may not abuse their position within
the
bank to reverse these charges or fail to process fees due on their
accounts”. The letter stated that breach of the prohibition
would be dealt with strictly in terms of the bank’s
Disciplinary Code and Procedure and employees could find themselves
faced with dismissal.
[5] The employee was aggrieved by bank charges automatically debited
to his account for copies of his bank statements. He paid
a service
charge for bank statements but had not received them despite repeated
complaints over a period of about six months. After
his complaints on
the issue had no effect, he used his staff access code to transact on
his account and reversed bank charges for
copies of bank statements
made at his request when he did not receive the originals. The
reversed charges were in the total sum
of R63.00. He did not reverse
amounts (i.e. an amount of R50.00) which he felt had been
legitimately debited. A few days later
(when he heard that there
might be repercussions for his conduct) he sent an email to the Area
Sales Manager, Gary Ponting in which
he stated that he had overlooked
the need to obtain approval and sought condonation for his actions.
Ponting refused to condone
the reversal of R63.00.
[6] The employee was suspended pending an investigation and was
thereafter charged with contravening paragraphs 4.2.1 and 4.2.18
of
the bank’s Disciplinary Code and Procedure in the following
terms :
“
Theft,
fraud, dishonesty in that it is alleged that whilst acting in the
capacity as a relationship manager of the Ladysmith Branch
on 8 March
2007,
you
reversed charges on your personal account, without prior approval. It
is further alleged that you were aware of communication
that was sent
out and dated the 7
th
February
2005 on the “reversal of bank charges on staff accounts”,
as you had signed and confirmed on a quarterly basis
that you
understood and acknowledge that no bank charges may be reversed due
to the bank for their personal gain.
And/or
Damage or loss suffered by the
bank through disregard of its rules and procedures in that it is
alleged that whilst acting in the
capacity of a relationship manager
of Ladysmith branch on 8 March 2007 you did not follow the correct
procedures with regard to
obtaining authorisation for the reversal of
bank charges on your personal account. It is further alleged that as
a result of your
disregard of procedures the bank has now suffered a
loss of R63.00”.
[7] In his disciplinary enquiry on 26 April 2007 the employee
admitted knowledge of the rule prohibiting reversals as communicated
by Manyathi, and admitted having reversed the R63.00 charge for
copies of his statements. He explained his conduct by alleging
that
the charges were not actually due to the bank as he had never
received the original bank statements, and that there was no
procedure or guideline requiring him to obtain prior approval. In
essence his defence was that he did not act dishonestly.
[8] He was found guilty of “breaching the instruction given by
Zweli Manyathi dated 7 February 2007”, and the recommendation
issued by the chairperson of the disciplinary enquiry, the late Patsy
Kippen, was that he should be issued with a final written
warning.
The chairperson found that the charges had not been proven and
expressed doubts about whether the first charge was correctly
set out
in the first place. On the second charge she found that if there was
a previous incident where a staff member had been
dismissed for
R63,00 he should be similarly dismissed, but otherwise he should be
given a final written warning.
[9] The employee received a notice dismissing him on 22 May 2007
issued by his branch manager, Zaayman, which informed him that
the
sanction of dismissal for contravening paragraph 4.2.1 and 4.2.18 of
the Disciplinary Code had been confirmed by a review panel.
He lodged
an internal appeal and this was dismissed. The notice informing him
of the dismissal of his appeal stated that the “aspects
he
raised” were found to have been “insufficient to set
aside the dismissal” and therefore there were no grounds
for
upholding the appeal. His evidence was that he had no reasons on
which to base his appeal and as a layperson may not have properly
dealt with the issue of sanction.
[10] He referred a dispute to the third respondent alleging that his
dismissal was substantively and procedurally unfair, following
which
the dispute was arbitrated. The award that forms the subject of this
review was issued in his favour in March 2009.
The award
[11] The arbitrator found that the dismissal of the employee was
substantively unfair for the following reasons :
“
5.7.1
This is because I am not satisfied that the applicant was indeed
guilty of the offence for which he was charged, found guilty
and
dismissed. It was accepted by all witnesses that the applicant
did
not display dishonest intent
1
in
reversing the charges on his account. I accept the applicant’s
argument that
his
conduct in reversing the charges fell outside the narrow scope of the
prohibition
on
staff reversing charges due to the bank on their own accounts for
their personal gain. This is on the basis of the unique facts
pertaining to the applicant’s case. The respondent did not
challenge the applicant on whether or not he was telling the truth
regarding not having received his statements, having complained about
this, and not having been attended to within a reasonable
time. The
applicant made notes on his computer records explaining the reversals
and the reasons behind them. There was no dishonest
intent.
5.7.2 In any event, even if I am
wrong on this point, and the applicant did contravene the prohibition
contained in Mr Manyathi’s
letter, the evidence shows that the
respondent was not consistent in its application of discipline. The
evidence shows that the
respondent had been much more lenient with
other staff members who were charged with different but comparable
misconduct; and that
the applicant could reasonably have reached the
conclusion that the respondent would condone his conduct given that
he had executed
similar reversals in 2006 for which he had not been
disciplined.
5.7.3 Even if I am wrong on one
or both of the previous findings, I am also satisfied that the
sanction of dismissal imposed by
the respondent in the applicant’s
case was grossly disproportionate to the alleged offence given the
unique circumstances
of the applicant’s case (including his
unblemished disciplinary record, and some 34-5 years service to the
respondent). It
is fair to say that after hearing the evidence, I
felt shocked at the imposition of the sanction of dismissal in the
applicant’s
case. I believe it was unfair.”
[12] The arbitrator states that given her findings on substantive
fairness it is not strictly necessary to make a finding on procedural
unfairness as it will not impact on the remedy provided for by law.
She however makes the following findings on procedural unfairness:
“
5.7.4.1
It was unfair for Mr Gielink to have drafted the charge sheet without
investigating the matter. Had the investigation been
done it is
likely in my view that different charges would have been preferred
against the applicant and the matter may not have
reached the level
of seriousness it did.
5.7.4.2 It seems to me that the
different and distinct charges against the applicant arose out of the
identical facts. This also
compounded the seriousness of the matter
in a manner which was unfair.
5.7.4.3 It was unfair of the
Review panel to make findings of fact inconsistent with Mrs Kippen’s
findings, and it was also
unfair of the panel not to make those
reasons available to the applicant in order for him to prepare for
his appeal.
5.7.4.4 The applicant’s
right to appeal as provided for in the disciplinary procedure was not
given effect to because he did
not have the benefit of the reasons
for the finding of his guilt and the reasons for the imposition of
the sanction of dismissal.
He was thus unable to give full and
detailed reasons for the appeal as required by the procedure.”
Grounds of review
[13] The applicant in its pleadings raised three grounds of review
i.e.:
13.1 The commissioner committed gross irregularity in the conduct of
the arbitration proceedings by excluding and/or disregarding
and/or
failing properly to record relevant evidence when arriving at her
decision.
13.2 The commissioner committed misconduct and/or gross irregularity
in the proceedings by failing to properly apply her mind to
the
material before her;
13.3 The commissioner in arriving at her factual and legal
conclusions reached conclusions which are not rationally justifiable
and reached conclusions which no reasonable decision maker would
have.
[14] The primary ground of review relied upon by the applicant is
that the arbitrator fundamentally misconstrued the nature of
the
employee’s misconduct and failed to apply her mind properly to
the real issues before her.
Substantive fairness
[15] In regard to the arbitrator’s main conclusion that the
employee was not guilty of the misconduct with which he was charged,
the applicant submits that the crux of charge against the employee
relates to a breach of the distinction between his relationship
as a
customer of the bank on the one hand and an employee on the other, a
distinction which the arbitrator failed to appreciate.
Mr Brassey,
appearing for the applicant, conceded that the arbitrator may
otherwise have been conscientious, but she fundamentally
misdirected
herself to the issues for determination, producing a result that
“makes one whistle”. The outcome is therefore
eminently
reviewable particularly in the context of the employee’s
deliberate breach of bank rules, dishonesty, intemperate
conduct and
lack of contrition. Mr Brassey submitted that although the loss
suffered by the applicant was a paltry sum of R63.00,
the principle
of enforcing a fiduciary duty owed by a senior manager with long and
exemplary service to the bank is critical. The
arbitrator lost sight
of this in focusing exclusively on the small sum involved, and was
obviously influenced by profound sympathy
for the employee as a
result of which she exonerated him from any blame whatsoever for his
misconduct.
[16] In support of the review Mr Brassey submitted that the
arbitrator concluded that the employee lacked dishonest intent
despite
his open defiance of the bank’s policy. In so doing she
failed to have regard to the fact that his conduct in abusing the
privileges attached to his position as a senior manager of the bank
in order to reverse charges on his personal account amounted
to self
help. Evidence was led that the entire banking system could collapse
into chaos if customers were to resort to self help
at each instance
to address their grievances. Regardless of whether he received the
original statements or not, and whether bank
charges for issuing
duplicate copies of his statements were correctly levied against his
account, his conduct constituted a serious
breach of his fiduciary
duties towards his employer. He was entitled to all of the remedies
ordinarily available to customers of
the bank and should have adhered
to these. He could also have approached the banking Ombudsman for
assistance. Instead, other than
raising his complaints informally, he
failed to follow any legitimate steps to address them and resorted
instead to unilaterally
effecting the changes to his account. Prior
to dealing with his own account he should have obtained the necessary
authority to
do so. In the circumstances no reasonable arbitrator
could have concluded that he employee was not guilty of misconduct on
the
grounds that he did not display dishonest intent.
[17] The evidence moreover confirmed that there was a clear
prohibition on the conduct he was charged with and that he was aware
of this. An employee could not act as judge, jury and executioner in
respect of his private account. All staff are required to
comply with
the prohibition and the bank’s attitude was one of zero
tolerance for non-compliance. The evidence (of Armstrong
and
Bierbaum) was that despite the employee being aware of the rule he
conspicuously failed to comply. His explanation that it
was not money
due to the bank was pure sophistry. It was common cause that he had
signed the memorandum from Manyathi confirming
the prohibition
against reversals, but in his testimony he displayed complete
indifference saying that the document did not stand
out in his mind
and that having read it (subsequent to being charged) it would not
have made any difference to his conduct. Apart
from this obvious
display of contempt for the prohibition, he was unrepentant and made
various vitriolic statements about his employer
and his colleagues.
In these circumstances it is immaterial whether he received the bank
statements or not or whether his request
for copies was justified and
should have been paid for. His conduct had clearly breached the
relationship of trust. Moreover, he
was a longstanding manager of
some seniority. It is common cause that on a previous occasion he
extended his overdraft facility
for which he had received a written
warning. This was acknowledged by the arbitrator. His conduct could
not have been held to have
been anything other than deliberate and
repeated dishonesty and his transgression of the prohibition on a
previous occasion cannot
be said to have been condoned by the bank.
[18] The arbitrator further ignored evidence that the employee sought
approval for his conduct after the fact when he learnt that
discipline was being considered against him. Had this been a genuine
effort in recognition of real wrongdoing on his part it may
very well
have served as a mitigating circumstance when considering the
appropriate penalty. However, his act of reversing the
charges was
done in a devious manner with no indication that he acknowledged his
wrongdoing. He persists with his lack of remorse
and it is likely
that he will repeat this conduct if given the opportunity in the
future.
[19] The applicant submitted therefore that the arbitrator’s
finding that no offence was committed is not a finding which
a
reasonable arbitrator properly applying her mind to the matter could
have reached. Furthermore, her attempts to bolster the finding
by
making findings in the alternative simply indicates her failure to
grasp the issues before her. It renders the award fundamentally
flawed. The employee deliberately flaunted the bank’s rules,
took money which was not his and which can be considered nothing
other than theft, and therefore committed serious misconduct. Mr
Brassey submitted that in the circumstances it is inconceivable
that
the arbitrator could conclude that he is not guilty of serious
misconduct and that reinstatement was appropriate. There was
moreover
nothing unique about the facts, nor can lack of dishonesty be
conclusive of his lack of guilt on the charges against him.
Inconsistency
[20] The arbitrator’s conclusion, in the alternative, that the
bank acted inconsistently in the application of discipline
for
similar offences is not supported by the evidence presented at the
arbitration. In fact the evidence showed that a strong line
is taken
against such misconduct, and the reason why the employee was not
disciplined for similar conduct in July 2006 was not
a result of a
conscious decision not to discipline him, but because the misconduct
had not been reported to management, and the
employee who failed to
report it was disciplined. The arbitrator’s flawed reasoning
amounts to concluding that because he
escaped discipline in the past
it was not appropriate to discipline him in this instance for his
repeated misconduct. In addition
on the inconsistency point, the
arbitrator’s conclusion that the employee’s conduct was
comparable to that of Mabata
and Zaayman cannot be sustained on the
evidence. These matters are distinguishable on the facts - Mabata was
not acting in breach
of an instruction and was found to have made a
genuine mistake, and Zaayman was also found to have made a genuine
mistake in using
the bank’s credit card instead of his personal
card. Neither of them was found to have committed an act of deception
or dishonesty.
Sanction of dismissal grossly disproportionate
[21] The conclusion that even if the employee had been guilty of the
misconduct, dismissal was shockingly inappropriate Mr Brassey
submitted, is extraordinary, to say the least.
[22] The disciplinary enquiry chairperson did not find that dismissal
was not appropriate. In fact, she stated that if his dismissal
would
be inconsistent with the bank’s approach to other employees
then he should be issued with a final warning. The arbitrator’s
finding that the dismissal was “shockingly inappropriate”
because of his long service and the unique circumstances
of the case
is unjustified. Firstly, length of service does not automatically
militate against a sanction of dismissal in circumstances
of
aggravated, repeated misconduct and lack of contrition. It leads to a
risk of repeated misconduct. Secondly, it is disputed
that there were
material facts unique to the employee’s case. Many customers
take exception to charges levied on their accounts
and follow the
normal complaints channel to resolve their grievances. A customer who
is overcharged by the bank is not entitled
to simply take money from
the vault to remedy the error. In this regard the conduct of the
employee was no different, irrespective
of whether his assertion that
he was taking his money was correct.
[23] The remedy of reinstatement indicates that the arbitrator
clearly failed to apply her mind to the facts before her. Where
an
employee seeks reinstatement but remains unrepentant for his flagrant
transgression of workplace rules and dishonesty, Mr Brassey
submitted
that the arbitrator was required to have applied her mind to this
factor. The employee’s attitude throughout the
proceedings was
one of contempt for the bank’s rules, and he suggested that
latitude should have been extended towards him.
He suggested that the
fact that he was disciplined was somewhat reprehensible and persists
with his denial that he had committed
any misconduct. The principle
that the lack of remorse for serious misconduct renders progressive
discipline pointless was established
in
Timothy v Nampak
Corrugated
Containers (Pty) Ltd
2
when the Labour Appeal Court held that the purpose of progressive
discipline was to reintegrate the employee into employment where
the
employment relationship can be restored to that which pertained prior
to the misconduct. In the context of his blatant dishonesty
and lack
of contrition, which destroyed the trust relationship, reinstatement
is hardly an appropriate remedy.
Procedural unfairness
[24] Mr Brassey submitted that, in regard to procedural fairness, the
arbitrator’s views are clouded by her sympathy for
the employee
and the conclusion that he did nothing wrong. It is not apparent that
she applied the appropriate test in determining
procedural fairness
as set out in
Avril Elizabeth Home for the Mentally Handicapped v
CCMA and Others
3
.
The employee contended initially that no investigation had been
conducted. However, evidence was led that an investigation had
been
conducted by Gielink as contemplated in the Disciplinary Code and
that the disciplinary procedure which was followed complied
with the
Code. The Disciplinary Code constituted a collective agreement with
the finance union, SASBO. The employee had indicated
at the end of
the disciplinary enquiry that he was satisfied with the fairness of
the process, although at the arbitration he alleged
unfairness in
terms which Mr Brassey referred to as “intemperate and
unrestrained impertinence.’ Furthermore, notwithstanding
the
arbitrator’s conclusion, the charges do not exhibit unwarranted
splitting but are clearly framed in the alternative as
well as
cumulatively. In regard to reasons for his dismissal, the
Disciplinary Code does not provide for reasons to be issued unless
the employee requests them and he failed to do so.
[25] For these reasons Mr Brassey submitted that the award should be
set aside as misdirection on the merits as well as the appropriate
sanction.
Opposing submissions
[26] Mr Bezuidenhout, appearing for the employee, submitted that it
was common cause that the memorandum containing the prohibition
did
not specify a procedure for dealing with reversals, which the
arbitrator correctly found to have been the case. Naidoo, the
Administration manager to whom the employee complained about his
frustration at not receiving his bank statements despite being
charged a service fee for them, admitted as much. He further admitted
that the prevailing practice in regard to bank charges was
for a
dissatisfied customer to complain to a branch manager. The employee’s
evidence was that he had complained to both Zaayman
(the Branch
manager) and Naidoo over a period of time and his complaints had gone
unheeded. He had also complained to various administrative
staff who
could have rectified the situation but they did not do so. He stated
publicly that he was “sick and tired of the
issue not being
addressed” and he was going to rectify the situation himself.
Naidoo relied on the standard clause contained
in bank statements
which refers customers to their bank manager in respect of any
queries within 30 days. In addition to his evidence
that there was no
other applicable procedure he was unable to confirm that prior
authority for the reversal was a requirement or
indeed how and from
whom this was to be obtained.
[27] Mr Bezuidenhout submitted that evidence was led that the
memorandum containing the prohibition arose in response to an
incident
at the Bloemfontein branch, where a supervisor had regularly
reversed charges due to the bank on both her and her husband’s
account and had allowed her staff to do the same. Unlike the
employee, they had blatantly stolen the bank’s money. The
supervisor
was dismissed but her staff members were issued with final
warnings. The applicant was unable to explain the inconsistency in
these
sanctions imposed, and the arbitrator had clearly applied her
mind to this issue. The memorandum was therefore drafted in this
context and refers to “
abuse of procedure”
for
“
personal gain
”. It does not apply to a situation
where an employee feels that the charges were incorrectly levied, and
it is unclear what
procedure he was said to have abused as well as
what his personal gain was other than having his own money returned
to him.
[28] Despite these obvious gaps the employee was charged and
convicted of both offences. The bank appears to have accepted
furthermore
that the R63.00 did not belong to it and that he did not
act for personal gain. This was pleaded but does not appear to form
part
of its case on review. It now submits that it is irrelevant
whether the money belonged to the employee or the bank since the
record
is unclear on this issue. If the employee’s version is
accepted, then it is clear that his conduct falls outside the ambit
of the prohibition, which is what the arbitrator found. This does
render his situation unique in that he was not reversing charges
that
were due to the bank but money that was due to him.
[29] There was furthermore no evidence led of any of the previous
strict warnings he had allegedly been issued with. In regard
to his
reversal of bank charges in 2006 no disciplinary action was taken
against him. The bank failed to produce documentary evidence
that
those reversals had been approved, either prior to him effecting them
or thereafter. On the second occasion he reduced his
credit facility
but the administration charges were not reduced proportionately. Romy
Govender testified about this being condoned
and in response to which
she reduced the bank charges. Neither Govender nor the employee were
disciplined for this incident although
Govender appears to have been
reprimanded by her manager Estelle Bierbaum for this oversight. In
regard to the implications of
resorting to self-help, Gielink
testified that there was a culture of condonation in the bank without
which it will not be possible
to perform its daily functions. Both
Bierbaum and Govender confirmed that the employee’s previous
use of his staff access
code (LDA authority) to renew his overdraft
was condoned.
[30] There was no evidence led that he had breached the prohibition
or another procedure or had acted with dishonest intent. The
references made to dishonest conduct by the applicant’s
witnesses were in the terms, for instance of Bierbaum, that (in reply
to the question whether breach of Manyathi’s instruction was
dishonest) : “
[i]t is dishonest because you had an
instruction that you had no authority to reverse”.
Gielink’s evidence, when it was put to him that disobedience of
the Manyathi letter was not
per se
dishonest, was as follows :
“
Dishonesty what is dishonesty? Dishonesty is when you do
something that is not right. I mean, you are being dishonest. I tell
you,
I give you an instruction, “please do not do that”,
and you do it anyway, you are being dishonest”
. He
testified further that the fact that the employee did not get
authority was an act of dishonesty.
[31] No other evidence was led of the applicable procedure except the
defalcation letters, but these related to misappropriation
of the
bank’s money and were not relevant to the employee’s
conduct. No evidence was led that he required prior authority
to make
the reversal. The arbitrator therefore duly considered all the
material facts and found on the evidence before her that
the offence
with which he was charged had not been proven and that the employee
had not acted with dishonest intent.
[32] Mr Bezuidenhout submitted that the arbitrator’s
conclusions on procedural fairness were based on common cause facts,
and cannot therefore be said to have arisen from a failure to apply
her mind. These facts were as follows:
32.1 Gielink had a duty to investigate the complaint against the
employee so as to ensure that the charges brought were appropriate
to
the offence committed. He failed to do so and drafted the wrong
charges against the employee. He admitted that he formulated
the
charge based only on documentation he received from the
Administration manager including the transaction history, the
reversal
of the charges, the operator ID, Manyathi’s letter and
the staff defalcation letter.
32.2 Gielink failed to call material witnesses at the disciplinary
enquiry with the result that the material facts were never placed
before the enquiry, the review panel and the appeal hearing;
32.3 As early as the disciplinary enquiry Kippen noted that the wrong
charges had been brought. She did not find the employee guilty
of the
charges or of dishonesty and recommended a final written warning;
32.4 The employee was not provided with reasons for the finding and
sanction of dismissal since there is no right to this in terms
of the
Disciplinary Code;
32.5 At the second level decision taken by the review panel Mgwenya
did not know that the matter had not been investigated and
that the
material witnesses had not been called. He overturned the
recommendation of the disciplinary enquiry for unknown reasons;
32.6 Mgwenya sent the matter to the third level where Armstrong and
Khoza sat without the benefit of any reasons why the recommendation
of Kippen had been overturned, but he nevertheless confirmed the
finding and sanction;
32.7 At the third level Armstrong did not know that the matter had
not been investigated and that all material witnesses had not
been
called, but he proceeded to confirm Mgwenya’s decision despite
the employee not having had the benefit of reasons prior
at any stage
of the process.
[33] Mr Bezuidenhout submitted that these procedural flaws were so
defective that even if a fair appeal procedure had been followed
this
would not have led to a result that was reasonable and fair. The
arbitrator was justified in finding that there had in fact
been no
appeal.
[34] Mr Bezuidenhout challenged the applicant’s description of
the crux of the charges as being his failure to respect the
distinction between his relationship to the bank
qua
employee
and
qua
customer, and to conduct himself appropriately in this
context. This was not the charge he faced. He submitted that instead,
the
crux of the review is that the employee was charged, found guilty
and dismissed for the following:
That he reversed charges on his own bank account;
Without obtaining prior approval;
That this act was in contravention of an instruction of the
erstwhile CEO dated 7 February 2005;
That he did so in respect of monies due to the bank;
That he did so for his own personal gain;
That as a result of the contravention of the instruction the bank
suffered a loss of R63.00;
And/or (count 2):
That he did all of the above deliberately and with dishonest intent.
[35] In essence what the arbitrator found, and which was justified on
the material before her, was
inter alia
that:
There was no procedure regulating the reversal of charges on a
personal bank account;
There was no requirement to obtain prior approval;
The employee’s conduct fell outside the ambit of the
instruction issued by the erstwhile CEO;
The R63.00 was due to him and not to the bank;
The employee did not act for personal gain;
And/or (count 2) :
The bank suffered no loss as the monies were not due to it.
The employee did not act dishonestly.
[36] He submitted that in applying the
Sidumo
test the
reviewing court will undoubtedly confirm the award as being one that
did not fall out of the bounds of reasonableness.
He referred to the
test as encapsulated by Molahlehi J in
Lynx Geosystems SA (Pty)
Ltd v CCMA and others
(unreported JR 1935/05) in which the Court
held :
“
[24]
In
determining whether or not the arbitration award of the commissioner
should be interfered with and in applying the reasonable
decision
maker test, consideration is to be given to the reasons proffered by
the commissioner in arriving at the conclusion that
the dismissals of
the applicants were unfair. See
Sidumo
v Rustenburg Platinum Mines
2007
(12) BLLR 1027
(CC).
In
applying the reasonable decision maker test which has been held to be
very stringent, the court is to be cautioned not to impose
and apply
its own reasonableness standard. See
Fidelity
Cash Management Services v Commission for Conciliation, Mediation &
Arbitration & others
[2008]
3 BLLR 197(LAC).
[25]
The commissioner exercises the power by answering the question: is
the dismissal in the circumstances fair? In arbitration
proceedings
it is only the commissioner who has to answer this question. See
Engen
Petroleum Ltd v CCMA & others
(2007)
8 BLLR 707
(LAC
).
In
answering the question the commissioner has to take into account the
material properly before him or her including the totality
of the
circumstances of the given case.”
[37] In
Sidumo
(supra) Navsa J held:
“
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that has
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal. There are other
factors that will require consideration. For example,
the harm caused
by the employee’s conduct, whether additional training and
instruction may result in the employee not repeating
the misconduct,
the effect of dismissal on the employee and his or her long-service
record. This is not an exhaustive list.
To sum up. In terms of the LRA,
a commissioner has to determine whether a dismissal is fair or not. A
commissioner is not given
the power to consider afresh what he or she
would do, but simply to decide whether what the employer did was
fair. In arriving
at a decision a commissioner is not required to
defer to the decision of the employer. What is required is that he or
she must
consider all relevant circumstances”.
4
Evaluation
[38] In considering whether the arbitrator relinquished her
responsibilities in terms of her responsibilities as set out in
Sidumo
and the judgments cited above, I am required to
consider the charges against which she evaluated the evidence, and
whether she took
all relevant facts and circumstances into account.
Not all the factors she would have taken into account appear from the
award
although this
per se
does not render it unreasonable.
5
The issue before the arbitrator was whether the employee was guilty
of theft, fraud or dishonesty in reversing charges on his personal
account. The second charge related to failure to follow the “correct
procedures” in obtaining authorisation for the
reversal of bank
charges on a personal account, which led to the applicant suffering a
loss of R63.00. The arbitrator cannot be
faulted for reaching the
conclusion that he was not guilty of the offence for which he had
been charged, as she was constrained
by the manner in which the
charges had been formulated. Had the charges been formulated as a
breach of the Manyathi memorandum
the employee might have justifiably
been found guilty. He breached the prohibition by reversing charges
using his staff authority
to access his personal account and the
issue of whether it was his money or the bank’s is in that
context as, Mr Brassey
submitted, pure sophistry. He conceded that he
simply got frustrated about the issue not being addressed and
resorted to self-help.
However, this was not the charge he faced. In
regard to the second charge the arbitrator cannot be faulted for
finding that the
no procedure had been breached, although the loss of
R63.00, albeit minimal, might have been established had he been
charged with
transgressing the prohibition (if he was proven to have
abused his staff access code). There was simply no evidence as to
what
the “correct” policy or procedure is in such
circumstances and the arbitrator’s conclusion on this charge
cannot
be said to be unreasonable or to emanate from misdirection or
have resulted in a gross irregularity in the process.
[39] Having regard to the conclusion in the light of the evidence led
I am of the view that the arbitrator appears to have duly
applied her
mind to the issue, and in considering the material evidence before
her concluded that the employee was not guilty of
the misconduct with
which he had been charged. In these circumstances not having
established guilt, reinstatement would follow
a fortiori
if
that was what the employee sought
.
The arbitrator’s
conclusion on the lack of guilt therefore cannot be said to have been
one that could not have been made
by a reasonable decision maker, nor
can it be said to be tainted by gross irregularity in that it arises
from the failure to apply
her mind to the material issues.
[40] If the employee had been found guilty this would then raise the
question whether, given his fiduciary duties in the context
of a
banking operation, the employee was justified in his conduct In the
arbitrator’s view the applicant had acted inconsistently
towards other employees, although at least three of the examples
cited by the employee do not appear to support his version. There
were in total five incidents referred to in relation to this issue,
and it was clearly on this basis that the arbitrator concluded
that
because there had been leniency displayed towards others and towards
him in similar circumstances, the same should have applied
in the
present instance. I agree with Mr Brassey that the arbitrator simply
states this conclusion without indicating the evidence
on which she
relies. However, having found that her award on the main finding must
stand I am not required to determine whether
it was in addition
justifiable and reasonable on the alternative finding of
inconsistency.
[41] In relation to the further alternative conclusion reached by the
arbitrator i.e. that the sanction of dismissal was grossly
disproportionate, even if he had been found to be guilty of the
offence with which he was charged, having reached the conclusions
above I am not required to determine this issue save to state that
the issue of whether reinstatement is appropriate in the light
of
mitigating and aggravating factors becomes relevant. The
considerations then of remorse and his lack of contrition (which has
been held by the LAC to apply when determining the appropriateness of
sanction for misconduct in
inter alia
Toyota South Africa
Motors (Pty) Ltd v Radebe and Others
6
)
would arise in determining whether the arbitrator applied her mind to
the totality of facts and circumstances before concluding
that
reinstatement was appropriate. If the employee had been found guilty
of the misconduct and the arbitrator was required to
determine
whether the sanction of dismissal was appropriate, his conduct and
attitude to the proceedings, to his employer and his
colleagues would
undoubtedly have become relevant. In this regard Mr Brassey made much
of the applicant’s vitriolic and intemperate
remarks made
during the course of the proceedings. The fact that his outrage was
justified in the context of allegations that the
outcome of the
disciplinary enquiry had been deliberately withheld and that there
had been an attempt to falsify documents in order
to set him up, as
submitted by his counsel, would not entirely justify it. Its impact
on the trust relationship would have become
material had he been
found guilty.
[42] In my view therefore, in reaching her main conclusion that the
employee was not guilty of misconduct, the arbitrator cannot
have
said to have failed to comply with the duties and responsibilities
required of commissioners as set out in
Sidumo
. Indeed, as Mr
Brassey stated, she was undoubtedly conscientious but the question is
whether she misdirected herself and therefore
abrogated her
responsibilities as a commissioner. For the reasons set out above I
am of the view that this has not been established
in relation to her
primary finding of procedural and substantive unfairness.
[43] The award therefore stands. Counsel agreed at the outset that
neither party would persist with any of the
in limine
points
or with seeking costs in respect of the previous proceedings, and
that they were in agreement that in order to proceed with
the merits,
costs should follow the cause. Condonation is therefore deemed to
have been granted insofar as it may be necessary
for the late filing
filing of the review and pleadings. I do not however consider it to
be in the interests of fairness and justice
to make an order as to
costs.
Order
[44] In the premises, I make the following order:
The application is dismissed. There is no order as to costs.
_______________________
Bhoola J
Judge of the Labour Court
APPEARANCES
APPLICANT: Advocate M Brassey SC with G Fourie instructed by Cowan –
Harper Attorneys
FIRST RESPONDENT: Advocate W Bezuidenhout instructed by Pretorius
Attorneys
1
My
underlining.
2
(2010)
31
ILJ
1844 (LAC).
3
(2006)
27
ILJ
1644 (LC).
4
Sidumo
supra at paras 78-79.
5
See
in this regard
County Fair Foods (Pty)
Ltd v CCMA
[1999] 11 BLLR 1117.
6
[2000]
3 BLLR 243
(LAC) at para 44.