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[2012] ZALCJHB 59
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MTN Service Provider (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J 2121/10) [2012] ZALCJHB 59 (27 June 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case
no: J 2121/10
In the matter between:
MTN SERVICE PROVIDER (PTY) LTD
Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER THOMAS NTIMBANA N.O
…............
Second
Respondent
GILBERT MASILO MAMABOLO
…................................
Third
Respondent
Heard
:
1 June 2012
Delivered
:
27June
2012
Summary: Review – arbitrator held employee’s dismissal
for non-disclosure to labour broker who contracted him to employer
held to be substantively unfair – decision not unreasonable
given that there was disclosure to employer – application
dismissed
JUDGMENT
BHOOLA J
Introduction
This is an application in terms of section 145 of the Labour
Relations Act, 66 of 1995 (“the Act”) for review of
the
award of the second respondent (“the commissioner”).
Background facts
The third respondent (“the employee”) was employed by
the applicant from August 2004 and dismissed on 27 November
2009.
From about 1999 he had worked at the applicant as an employee
contracted through a labour broker (Team Dynamics), but he
was
dismissed by Team Dynamics in 2001 following charges relating to
unauthorised disclosure of a customer’s cell phone
number and
personal details. In 2002 another labour broker, (Tlhalefang
Placements), again placed him with the applicant at one
of its call
centres. This second placement was made without Tlhalefang being
informed of the dismissal from Team Dynamics (“the
previous
dismissal”).
In 2004 the employee applied for a permanent position with the
applicant, was interviewed and appointed as Customer Service
Representative. In November 2009 he was dismissed by the applicant
following charges of misconduct, which were as follows :
Failure to disclose material facts of dismissal when he applied
for placement with Tlhalefang Placements Agency;
Gross misrepresentation by the falsification of his curriculum
vitae when he applied for placement with the employer through
Tlhalefang
Placements Agency in that he stated Leko Thage was the
staff member of Team Dynamics Agency whilst he was not;
Gross misrepresentation in that the employee omitted material
information of having been employed by Team Dynamics Agency and
thereby making it impossible for Tlhalefang Placements Agency to
conduct character check with them;
Abuse of employer benefits in that the employee undertook a
cancelled trip from Nelspruit to Johannesburg whilst he was informed
not to undertake the journey.
The arbitration award
The evidence of the applicant’s witnesses, Chris Baloyi, a
forensic investigator, was that he had interviewed the employee
on
two occasions as part of his investigation. In the second interview
he admitted that he had not disclosed his previous dismissal
on the
application form (which specifically asked whether he had ever been
dismissed) as it would have jeopardised his employment
prospects. He
also failed to disclose his dismissal when he joined the applicant
in 2004. Baloyi said he held a position of trust
as chairperson of
the employment equity forum; that misrepresentation was a
dismissible offence in terms of the applicant’s
disciplinary
code and that he had secured employment through fraudulent means.
Sakie Mashego, the employee relations senior manager,
confirmed that
the employee had said at the disciplinary enquiry that he had
disclosed the previous dismissal to his superiors
(including
Nkululeko Ntage) when he was interviewed for employment with the
applicant in 2004. Evidence for the employee was
given by Ntage and
Pat Nkosi. Ntage (employed by the applicant as area sales manager
since 2000 and who was a member of the interview
panel), testified
that he knew of the employee’s previous dismissal and that he
had also informed the interview panel of
this during his interview,
in the context of a discussion about whether he had any regrets. All
three members of the panel were
aware of his previous dismissal but
nevertheless recommended him for permanent employment with the
applicant. Nkosi testified
that the applicant was engaged in a
“witch-hunt” against the employee because of his role in
the employment equity
forum. He confirmed that the applicant knew of
his previous dismissal and had condoned his failure to disclose this
for five
years.
The employee’s evidence was that he made the disclosure to
Ntage and the rest of the interview panel but that they were
in any
event aware of the issue. He was not given an MTN security check
form to complete when he was appointed and he believed
the dismissal
to be a plot against him for his role in the employment equity
forum.
The commissioner, in his analysis, records the common cause fact
that the previous dismissal was not disclosed to Tlhalefang,
and
states that the critical question to be decided is whether the
applicant had
locus standi
to dismiss, and secondly whether a
disclosure was made to the interview panel. In regard to the first
question he found there
was no legal basis for the applicant to
institute charges against the employee for the following reasons:
The misconduct or omission was never committed against the
applicant but to the Tlhalefang employment agency.
The completed application form did not even come from the third
respondent.
The third respondent was not even aware that he was going to be
placed at the applicant.
The question to be asked is what would have happened if this
non-disclosure was picked up by the applicant prior to August 2004.
The applicant would not have instituted disciplinary proceedings
since it was not the employer at the time, but alerted Tlhalefang
who had an obligation to discipline its employees. This would have
been consistent with the applicant's decision to remove the
third
respondent from their premises after he disclosed confidential
numbers to a client to allow Team Dynamic to take the necessary
disciplinary action.
The rest of the award deals with the second issue and on this aspect
the commissioner notes that the applicant’s argument
was based
on the application form completed by the applicant (which
specifically requires any dismissals from previous employment
to be
disclosed), but that this was remedied by Ntage’s confirmation
of his disclosure at the interview. This was moreover
supported by
the disciplinary enquiry record. In addition to his disclosure all
three panellists were also aware of his previous
dismissal because
they worked with him. He therefore finds that the “decision to
recommend the applicant was made openly,
consciously and informed by
this fundamental disclosure”. The commissioner concludes that
the employee therefore did not
commit a misrepresentation, verbally
or in writing, when he was considered for a permanent position with
the applicant in 2004.
Even though he had conceded during the
investigation by Baloyi that he failed to disclose to Tlhalefang, he
had disclosed to
the applicant when interviewed for a permanent
position. On the procedural aspect he finds that the employee
conceded that he
was satisfied with the manner in which the
disciplinary hearing was conducted and the fact that he did not
agree with its outcome
did not
per se
constitute a procedural
defect.
The commissioner concluded as follows: “
[o]n this basis,
the respondent failed to discharge the onus as required by section
192(2) of the LRA 66 of 1995. I therefore
find the dismissal of the
applicant by the respondent to be procedurally fair but
substantively unfair. Reference can be made
in the case of Nampak
Corrugated Wadeville v Khoza (1999) 20 ILJ 578, where it was held
that the court should interfere with
the sanction imposed by the
employer if the decision to dismiss appears to have been made in bad
faith or for ulterior reasons
or not directly related to the
misconduct in question”
. On this basis the applicant was
ordered to reinstate the third respondent with immediate effect and
to pay him five months “arrear
wages”.
Grounds of review
The applicant relies both on the outcome and the process of
decision-making. Mr Maunatlala, for the applicant, made the
following
submissions in this regard :
The findings of the commissioner are not reasonable in light of the
evidence presented to him;
The commissioner took account of irrelevant evidence and ignored
relevant evidence, and in so doing misunderstood the case
before
him;
The commissioner ruled that the applicant had no legal basis to
institute charges against the employee, and in making this
ruling
misdirected himself and committed a gross irregularity.
In amplification of these grounds Mr Maunatlala submitted that a
commissioner’s duty is to determine whether a dismissal
is
fair or not, and he is not given powers to determine afresh what he
or she would do. Mr Maunatlala submitted that the employee
had
conceded that he intentionally withheld information about his
previous dismissal because it would have affected his employment
prospects. This amounts to a concession that he was dishonest and
this was essentially the charge for which he was dismissed.
His
defence that he was not dishonest in relation to the applicant but
to the placement agency is not sustainable. Accordingly
the
commissioner’s finding that the non-disclosure did not affect
the applicant is not a decision that could have been
made by a
reasonable arbitrator. In making this ruling the commissioner failed
to apply his mind to evidence led by the applicant
to the effect
that although the employee was technically employed by Tlhalefang,
when he was placed at the applicant he became
a part of its
workforce and therefore was subjected to less stringent scrutiny
when he applied for a permanent appointment. This
was the clear
import of Baloyi’s evidence. He testified that when people who
are already on the system are appointed, the
assumption is that the
checks and balances have been done by the agency and the applicant
is influenced by documents submitted
to the agency. The interview is
simply a mere formality. This evidence, Mr Maunatlala submitted, was
not challenged and the commissioner
failed to appreciate that by
making a misrepresentation to the agency, the third respondent had
effectively misrepresented himself
to the applicant, as a result of
which he was shortlisted and even considered for employment. Mr
Maunatlala submitted therefore
that given the employee’s
concession that he was dishonest it is unreasonable for the
applicant to be compelled to continue
working with him. A reasonable
commissioner would not have ignored the fact that before the third
respondent was interviewed
by the applicant, he would have been
recommended by the agency and the recommendation of the agency was
critical to his employment
: see
Hoch v Mustek Electronics (Pty)
Ltd
1
where an employee’s dismissal based on misrepresentation of
her qualifications was upheld.
The commissioner further committed a gross irregularity by
suggesting that the dismissal was motivated by bad faith and that
there was an ulterior motive for the dismissal not related to the
misconduct in question.
The commissioner failed to have regard to the fact that the trust
relationship between the parties had broken down, and that
is
unreasonable to expect the applicant to continue working with
someone who on his own version admits that he is not trustworthy.
In
Miyambo v CCMA & others
2
the court held that business risk is predominantly based on
trustworthiness of company employees and that the accumulation of
individual breaches of trust has economic repercussions.
Analysis
Mr Boshoff submitted on behalf of the employee that it is common
cause that he did not make the disclosure to the placement agency,
but this was remedied by his disclosure to the interview panel.
Ntage’s evidence moreover was that the panel was happy
to
recommend him for appointment despite this disclosure, and he then
continued to work for the applicant for five years without
problems.
It is common cause that the employee conceded from the point of the
investigation to date that he failed to disclose
to Tlhalefang but
at no stage did he misrepresent or fail to disclose this to the
applicant. Therefore, the commissioner did
not commit misconduct in
that he properly understood the case before him and applied his mind
to all relevant evidence. There
is no nexus between the evidence
that third respondent made a misrepresentation verbally or in
writing to Tlhalefang, and his
subsequent employment by the
applicant. The applicant’s continued reliance on
misrepresentation to a former employer is
therefore irrelevant and
gives the applicant no right to dismiss in the circumstances it
cannot be said that the commissioner
committed a material error in
finding that the failure to disclose to Tlhalefang did not
constitute misconduct.
Mr Boshoff further submitted that the applicant’s reliance on
numerous authorities was misplaced, more particularly
Hoch
(supra) s
upports employee’s submission that there was no
misconduct committed in relation to the applicant.
Hoch
(supra)
is also distinguishable in that there was direct
evidence that the relationship of trust had broken down by the
employee’s
false claim in an interview that she had formal
qualifications, and her persistence with such a claim thereafter.
The applicant’s
persistent reliance therefore on
misrepresentation to the applicant has no legal basis. There was no
evidence that the permanent
appointment to the applicant was based
on a recommendation from Tlhalefang, or that such recommendation was
based on material
non-disclosure by the third respondent. The
commissioner was moreover justified in the assumption that there
must have been an
ulterior motive for his dismissal five years after
he had worked for the applicant, as the evidence was that it was
linked to
his role in employment equity issues at the applicant. In
this regard the third respondent’s case is supported by the
authority
relied upon by the applicant,
Miyambo (supra)
, in
that it cannot be said that the employee is no longer trustworthy as
this was not proven. The commissioner therefore applied
his mind
correctly to the facts and the legal principles and cannot be said
to have made a decision that could not be made by
a reasonable
decision maker on the
Sidumo
3
test or that he committed a gross irregularity in determining the
issues or construing all the evidence or otherwise.
In my view none of the grounds for review of the award can be
sustained. The test, it must be borne in mind, is as the applicant
correctly pointed out stated by Van Niekerk J in
Southern Sun
Hotel Interest (Pty) Ltd v CCMA and others
4
that the award must “fall within a band of reasonableness”.
It cannot in my view be said that the outcome is so unreasonable
that it could not fall within a band of reasonable decisions. It is
trite that a reasonable decision maker must consider all
the facts
and evidence placed before him and make a decision based on a
balance of probabilities. There was no evidence led that
the
non-disclosure to the agency had influenced the employee’s
permanent appointment with the applicant to any extent.
More
importantly, the transgression was general knowledge among the
interview panel which still recommended him for appointment.
There
was no evidence that the panel was simply going through the motions
of a formal interview as the applicant seemed to suggest.
The applicant also relied on
Custance v SA Local Government
Bargaining Council & Others
5
as authority for the submission that off duty misconduct can
constitute a valid reason for dismissal. The only relevance of this
citation appears to relate to a reference (in para [29]) of the
Crown Chickens
decision
6
in which the Court found that calling a person a ‘kaffir’
was a dismissible offence and whether the word is uttered
off duty
was immaterial. The present matter is distinguishable in that
although the dishonest conduct (if the non-disclosure
in fact
constitutes dishonesty) took place in relation to another employer
it cannot be said that the commissioner was unreasonable
in finding
it irrelevant to his current employer in these circumstances. The
facts in
Miyambo
(supra)
are also distinguishable as
there was direct evidence of dishonesty in relation to the employer
and the Labour Appeal Court confirmed
the finding of the Labour
Court that the commissioner’s finding that the employee was
not guilty was irreconcilable with
his factual findings that he knew
he could not remove the scrap-metal from the premises without
permission.
Order
Therefore, I make the following order :
The application is dismissed with costs.
_______________________
Bhoola J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M I Maunatlala
Instructed by Mashiane,
Moodley & Monama Inc., Sandton
THIRD RESPONDENT:
J Boshoff
Instructed by Du
Toit-Smuts and Mathews Phosa, Nelspruit
1
(2002)
21
ILJ
365.
2
[2010]
10 BLLR 1017
(LAC.
3
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007]
12 BLLR 1097
(CC).
4
[2009]
11 BLLR 1128
(LC)
5
2003
(24)
ILJ
1387 (LC)
6
Crown
Chickens (Pty) ltd t/a Rocklands Poultry v Kapp & others (2002)
23
ILJ
863 (LAC).