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[2012] ZALCJHB 78
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South African Broadcasting Corporation Ltd (SABC) v Commission for Conciliation Mediation and Arbitration and Others (JR446/2011) [2012] ZALCJHB 78 (7 August 2012)
21
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no. JR446/2011
In the matter between:
SOUTH AFRICAN
BROADCASTING
CORPORATION LTD (SABC)
…......................................................................
Applicant
and
CCMA
…...............................................................................................
First
Respondent
COMMISSIONER FAIZEL
MOOI N.O
…........................................
Second
Respondent
MEDIA WORKERS
ASSOCIATION OF
SOUTH AFRICA (MWASA)
…............................................................
Third
Respondent
LIONEL NCALA
…...........................................................................
Fourth
Respondent
Heard: 20 April 2012
Delivered: 7 August
2012
Headnote: Review –
dismissal for misconduct – review test analysed –
latitude commissioners enjoy in conducting
hearings - evaluation of
evidence – shifting of evidentiary burden – misdirections
of commissioner not amounting to
reviewable irregularities –
Application dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
WHITCHER AJ
Introduction
This is an application
to review and set aside an arbitration award issued under case no
GAJB26897-10 by the Second Respondent
[“the commissioner”].
The commissioner found that the dismissal of the Fourth Respondent
[“Ncala”] was
substantively unfair and ordered his
retrospective reinstatement.
Ncala was employed by
the applicant since 1995. At the time of his dismissal, he was
employed as a National Sales Manager. In
May 2010, following an
investigation by Mr Kok, a forensic auditor from the applicant’s
internal audit department, Ncala
was charged with five acts of
misconduct. He was found guilty of charge 1: non-disclosure of
business interests or membership
as prescribed in the SABC Personnel
Regulations in respect of four enterprises; charge 4: contravention
of the SABC electronic
mail policy by soliciting and conducting
private business using the employer’s email facility; and
charge 5: dishonesty,
alternatively making a misrepresentation by
submitting excessive claims for using his private vehicle for the
employer’s
business, claiming 1180 kms not entitled to (to the
value of some R4 766.38). He was dismissed on 16 August 2010.
Two witnesses testified
at the arbitration: Kok on behalf of the employer and Ncala in his
own defence. The commissioner confirmed
the findings of guilt in
respect of charges 1 and 4 only. Concerning charge 1, the
commissioner concluded that Ncala had not
declared his membership of
three entities. In respect of the fourth enterprise, Capello,
although there had been contact between
Ncala and Capello, the
evidence that he was the owner or had a formal business interest in
the entity was insufficient. In any
event, the nature of the contact
established did not disclose a conflict of interest that warranted
dismissal.
In respect of charge 5
the commissioner found that:
‘
The evidence
against the applicant on this charge is not clear cut. The
applicant’s argument that he never admitted to making
a mistake
on his kilometres to Mr Kok at his interview as he would not have
pleaded not guilty if he did so is credible and I am
prepared to give
him the benefit of the doubt on this point. The applicant’s
argument that his mileage is higher than what
Kok’s map
indicated as he visited a number of government departments in a given
area that he visited is credible especially
as Mr Kok did not produce
a copy of the map on which he based his calculations.
The biggest problem is… where
the applicant indicated that on 3
rd
November 2008 his
odometer reading when he returned to the SABC was 9080 and when he
departed on business on 4
th
November 2008 the odometer
reading was still 9080. This cannot be correct as the applicant
conceded going home between the two
trips. He tried to explain this
discrepancy by stating that the kilometres were taken over at the end
of the month. While this
explanation is not entirely convincing the
respondent faces two problems:
Firstly, the applicant’s claim
was checked at the time by two people who did not testify as they had
left the respondent’s
employ. If the applicant was dishonest in
his claims and normal adjustments were not made to his claim at the
end of the month,
it is strange that two people did not pick this up
at the time. The applicant testified that alleged discrepancies in
his claim
were not actioned as his senior was aware of how he worked.
As the witnesses who approved the payment of the mileage did not
testify
I have to give the applicant the benefit of the doubt on his
claim that his seniors were aware of how he worked and they therefore
found no discrepancies in his claim.
Secondly, the claims in issue were
made in 2008 and the applicant was only charged in 2010. The
principle of fairness requires an
enquiry to be held within a
reasonable time.’
The commissioner found
that the sanction of dismissal was unfair for the following reasons:
‘
No
disciplinary code was produced which indicated that dismissal was the
appropriate sanction on any or all of the charges, including
charge 5
as opposed to a written or a final written warning.
The applicant worked for the
respondent for about 15 years with a clean disciplinary record and
his length of service is a strong
mitigating factor favouring a
sanction less than dismissal.
While the applicant on two of the
charges breached company policy… Mr Kok conceded that the
applicant did not come across
any conflict of interests. The only
possible conflict of interest was the applicant taking a few minutes
to reply to Capello’s
emails. This is a minor misconduct. If
the applicant had not declared his interests in any companies doing
business with the SABC
then the matter would have been sufficiently
serious to warrant a dismissal. This is not the situation…and
the applicant’s
breach caused no actual prejudice to the
respondent, thereby justifying a lesser sanction.
Even if the applicant was guilty of
dishonesty relating to charge 5, which he could not be for the
reasons furnished… it
is not clear that this was a dismissible
offence as no code was provided and it was not convincingly proved
that the applicant
gained by the amount set out in the charge sheet
as his argument that he visited a number of government departments
when he went
to a certain area thereby legitimately increasing his
mileage was not strongly refuted. The only clear discrepancy proved
was where
the applicant did not account for the mileage to his home
and back on 3
rd
and 4
th
November 2008 which was
not serious enough to justify dismissal.’
The applicant’s
grounds of review
A summary of the
applicant’s contentions is set out below. The detail of the
complaints is addressed in the analysis of
the application.
Concerning charge 1,
there was no rational connection between the evidence before the
commissioner and his findings in respect
of Capello, especially the
absence of a dismissible conflict of interest.
Concerning charge 5, the
issue of an undue delay was never raised during the proceedings. The
applicant was thus not given a hearing
on this issue and the
commissioner took into account irrelevant and unsubstantiated
material which materially influenced his
decision.
The commissioner denied
the applicant the opportunity to lead material evidence, namely that
of Naicker to corroborate the evidence
of Kok regarding the
interview with Ncala.
The commissioner
misdirected himself in assessing the evidence.
No rational reasons were
given for the credibility finding in favour of Ncala against Kok.
There is no indication that the commissioner
considered the
probabilities first, before relying on the credibility of the
witnesses.
It was absurd to have
relied on the fact that Kok did not produce a copy of the map on
which he based his calculations, given
that the commissioner had
ruled that it was not necessary for Kok to produce the map. As such,
the commissioner denied the applicant
an opportunity to present what
the commissioner considered to have been material evidence.
Concerning the odometer
reading, it was absurd to rely on Ncala’s superiors having
approved his travel claims, as they had
based their approvals on
trust, and even more bizarre, on the 2 year delay issue. Moreover,
it was unwarranted to have taken
into consideration the absence of
evidence by Ncala’s superiors, because there was other
evidence led by Kok that proved
that in other instances Ncala had
inflated his travel claims.
There was no rational
basis to suggest that in the absence of a disciplinary code,
dismissal for dishonesty was not a fair sanction.
The commissioner
failed to appreciate the impact Ncala’s misconduct had on the
employment relationship. Moreover, in deciding
substantive fairness,
the commissioner was
pre-occupied with charge 5. Having found that the charge had not
been proven, he ought to have disregarded
it for purposes of
considering whether or not dismissal was a fair sanction. Instead,
he made repeated references to it in his
award and it clearly
influenced his mind in deciding the fairness of the sanction. The
commissioner did not, as he was required,
consider the fairness of
the sanction in the light of the charges which he found to have been
proved.
The applicant referred
to the Labour Appeal Court’s decision in
Mutual
Construction Company Tvl (Pty) Ltd v Ntombela NO and Others.
1
In that case,
an administrative clerk
was dismissed for falsely recording that he had worked 81 hours,
which he had not. The commissioner found
that the sanction of
dismissal was too severe and ordered the employee’s
reinstatement. The LAC found that,
given
the position of trust the employee held at the employer and that he
had committed what amounted to gross dishonesty and
fraud, retaining
the employee would have been severely detrimental to the employer’s
operational requirements. The employee’s
conduct had rendered
the working relationship intolerable.
The commissioner
reinstated Ncala although he had requested compensation.
The commissioner
irregularly awarded Ncala an extra two weeks’ compensation
based on an assumption that it would take two
weeks before the
parties received the award. However the award was sent two days
after the arbitration.
I have not set out the
many helpful opposing submissions made by the third and fourth
respondents because I have incorporated
these in my analysis of the
application.
The review test
Firstly, it is relevant
to re-state some trite evidentiary rules. The
onus
was on the applicant to
prove the allegations against Ncala by showing that, on all
the evidence presented
by both parties, its version is more probable or likely than Ncala’s
version. Where the evidence
permits more than one reasonable
inference, one pointing to guilt and the other to innocence, the
selected inference must, by
the balancing of probabilities, be the
more plausible conclusion of the possible inferences. Initially, the
employer need only
establish a
prima
facie
case
of misconduct against the employee and,
where
this is done,
the
evidentiary burden shifts to the employee to provide a credible and
probable explanation for his actions. In the absence of
such, the
arbitrator could reasonably infer that the employee is guilty of the
said misconduct and the employer has discharged
its onus. An
employee is not entitled to the benefit of the doubt, as to the
convincing nature of his explanation. On raising
a particular
defence, an evidentiary burden falls upon the employee to establish
that his version is likely. In an assessment
of the evidence, the
issue of the credibility and probability or improbability of a
version are not separate inquiries but part
of a single
investigation into the acceptability of a version – measured
against each other – to arrive at a decision
that one version
is more probable.
The essential test in
deciding whether an arbitration award should be reviewed is the
following: is the award one that a reasonable
decision-maker could
not reach? In deciding this application, I find it useful to apply
the distinction between two forms of
unreasonableness encapsulated
in the
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2
test for review and made
explicit in a number of subsequent judgments of this court. In
SA
Airways (Pty) Ltd v Blackburn and Others,
3
Nedbank Ltd v CCMA,
Grobler NO and Herholdt,
4
Sasol Mining (Pty)
Ltd v Ngqeleni NO and Others
5
and
Gaga
v Anglo Platinum Ltd and Others
,
6
two categories of
challenge to the reasonableness of an award were identified. Awards
are reviewable on both result-based and
process-based grounds. The
former challenge succeeds if the result of the award is incapable
of justification on all
the material before the commissioner. The latter succeeds if an
arbitrator commits a gross irregularity
in the form of a material
failure of law or the
failure to apply his mind to materially
relevant
facts.
Notwithstanding the
blurring of the line in labour law between grounds for appeal and
review, it is still necessary that an applicant
seeking to have an
award set aside present more than a list of the arbitrator’s
misdirections. In respect of the result,
both on guilt and sanction,
it is not sufficient to argue that the decision was wrong but that
it was
incapable
of being reached by a reasonable arbitrator.
In respect of process, the complained of irregularities must be
material
.
I agree with the
position adopted in
Sasol
by van Niekerk J in relation to
process-related unreasonableness. This is that an applicant must
“establish no more than
that the result of the award may (and
not would) have been different if the commissioner had properly
acquitted him or herself”.
However what needs to be
established in the first instance is that the commissioner did not
properly acquit himself. It is not
proper to argue that because a
process-related act by a commissioner had the potential to change
the result, therefore the commissioner
did not properly acquit
himself.
In evaluating whether a
commissioner properly acquitted himself in relation to a
process-related issue, it should be borne in
mind that there is not
always only one correct way in which a commissioner may act. Certain
process-related questions that arise
in arbitrations are, not
unreasonably, decided in opposite ways. By way of example, an
arbitrator who rules that a fifth
alibi
witness is
unnecessary is not necessarily failing to acquit himself properly.
At the same time, the decision to permit the testimony
of the fifth
alibi witness is also not necessarily wrong. Though in both cases it
could be argued on review that allowing or
not allowing the fifth
witness
may
have turned the case on its head, this is not the
issue. To use the language of
Sasol
, the primary issue is
whether the commissioner properly acquitted himself. The
unreasonableness of his actions flows from an
established, material
failure or irregularity on the commissioner’s part.
In making this
determination,
it
is necessary to note that commissioners enjoy a certain latitude of
discretion flowing from section 138 of the Labour Relations
Act to
decide how to conduct arbitration hearings. Among others, it is a
function of theirs to attempt to ‘move things
along’.
Litigants are certainly entitled to a fair hearing and there are
clear principles to be enforced by reviewing courts
to ensure the
legality of the adjudication process. These include that a
commissioner must not ignore material evidence and must
properly
apply his mind. However, a fair outcome must be achieved speedily
and with the minimum of legal formalities, lest one
of the other
purposes of the LRA, to facilitate the effective resolution of
disputes [see section 1 (d) (iv) of the LRA],
be
sacrificed. A reviewing court must therefore allow certain
essentially discretionary powers and functions of commissioners,
especially as to the conduct of the hearing, to be exercised and
recognise that, in some instances, what might constitute a legal
irregularity in a court is but a legalistic quibble in the CCMA.
7
As expressed in
Sidumo
,
decisions
as to fairness are primarily in the “domain of the
commissioner”. The creation of this domain is part of
the
“legislative intent” identified in
Sidumo
,
the use of which means that “decisions by different
commissioners may lead to different results” without this
court necessarily being able to interfere.
I will apply these
general observations concerning the test for outcome and
procedure-related unreasonableness to the applicant’s
specific
grounds of review hereunder. In the meantime,
I
note that, while the commissioner’s decision-making was
criticised as being ‘absurd’, ‘bizarre’
or
‘disingenuous’, the true grounds of complaint seem to be
less substantial and less material. In essence, after
an analysis of
the evidence presented, the commissioner’s overall conclusion
was that Ncala was guilty of two less serious
charges, for which the
penalty of dismissal was found to be unfair. The commissioner found
Ncala not guilty on the more serious
charge.
The difficulty the
applicant faced at the CCMA is that it brought only a single
witness, a forensic auditor, to discharge the
burden of proof it
bore. He was able to give evidence of wrongdoing that arose,
ex
facie,
certain
documents authored by Ncala (a outside business interest disclosure
form, certain emails to Capello and his travel claims).
The Labour
Appeal Court has already found it acceptable for a witness who was
not personally involved in making data inputs or
storing and
retrieving them to give evidence in which he analyses and draw
conclusions from this data.
8
This evidence from the
forensic auditor, Kok, was reliable and Ncala did not dispute that
he authored these documents. However,
when disputes of fact arose
about the context and work practise in which the travel claims were
made, Kok was not in a position
to deny what amounted to a plausible
explanation in defense. When a dispute of fact arose about the
seriousness of those acts
of misconduct that were proven, Ncala’s
failure to declare business interests and his breach of SABC
internet usage policy,
Kok’s testimony was not sufficient to
counter compelling arguments in mitigation of sanction.
In sum, while some of
the applicant’s criticisms of the commissioner’s award
have an element of validity and while
he may have expressed himself
better in evalutaing the evidence, none of this, in my view,
warrants the Court’s intervention
on review for reasons set
out below.
Non-disclosure of
business interests
Ncala was found guilty
of the non-disclosure of business interests in respect of three
companies. The commissioner rightly rejected
the argument that his
belated declaration in April 2009 constituted compliance with the
applicant’s rules. However, the
commissioner regarded this
misconduct, in both its nature and context, and on a first offence
after 15 years of service, to be
insufficiently serious to justify
dismissal.
I find no reason to
interfere with the finding on sanction. The commissioner, in my
view, properly appreciated the severity of
this misconduct when he
declined to confirm Ncala’s dismissal. He, not unreasonably,
took into account the uncontested
evidence that two of the three
entities were dormant and the remaining one was a vehicle for
trading Telkom shares. This allowed
him to note that no conflict of
interest existed between Ncala’s private business interests
and his employment duties.
The applicant’s witness, Kok, also
conceded as much.
It may well be that a
company has some over-arching business interest in the scrupulous
and complete declaration of all outside
businesses owned by its
employees such that any non-compliance, even on a first offence and
where no conflict of interest exists,
nevertheless constitutes an
irretrievable breach of the employment relationship. However, the
applicant, whose duty it was to
do so in the context of sanction,
placed insufficient evidence of the seriousness of this infraction
before the commissioner
to warrant a finding that the trust
relationship had irretrievably broken down.
9
This seems to be why the
commissioner commented about the absence, as evidence, of the
applicant’s disciplinary code. Such
a document normally
records the penalties an employer regards as appropriate for
particular acts of misconduct, which an employer
is generally free
to set . However, without reference to such a code, there was in
this case no authoritative evidence about
how seriously the employer
views the effects of this particular act of misconduct on the
employment relationship.
In
cases where dismissal is not an obviously appropriate sanction for a
particular act of misconduct, a commissioner does not
unreasonably
expect an employer to lead evidence on what its disciplinary code
provides.
The applicant is
critical of the commissioner for suggesting in his award (paragraph
24) that Ncala had a greater obligation to
disclose actively trading
companies as opposed to dormant companies in order to comply with
the disclosure policy. This is because
the form provided to
employees to disclose their business interests does not ‘mention’
dormant companies.
Even if this is a
misdirection, it is not material. The result is unaffected. From the
point of view of sanction, nothing turns
on the distinction the
commissioner draws between active and dormant business entities.
Even if all three companies were actively
trading but in
circumstances where there was no conflict of interest, it would not
be unreasonable to decline to dismiss Ncala,
especially in light of
the mitigating factors already mentioned.
The Capello franchise
The applicant alleged
that Ncala was the owner of a fourth business, a Capello franchise,
which he also failed to declare. Ncala
denied owning this business
at the time and consequently he had nothing to declare. He said he
was still in the process of acquiring
ownership. The commissioner
resolved this dispute of fact in favour of Ncala. I find no reason
to interfere with the finding
that Ncala did not own the Capello
franchise and thus did not breach the disclosure policy in regard to
this business.
Ncala’s denial was
corroborated by the CIPRO documents, which were entered as evidence.
Evidence by Kok to the contrary
of his conversations with people at
the Capello store was hearsay and the commissioner was entitled to
afford it low weight if
it was admissible at all.
As regards other
evidence of Ncala’s association with Capello (an invitation to
a year-end function, Ncala’s name
being on a store contact
list and arrangements for Ncala to attend franchisee training), the
commissioner, in my view, did not
ignore or fail to properly apply
his mind to this evidence. He took it into account. The applicant’s
real dissatisfaction
is that the commissioner declined to draw an
inference from this evidence that Ncala was the formal business
owner. It was not
unreasnable to decline to draw this inference. The
commissioner, not without justification, accepted Ncala’s
explanations
for how he came to be included in the above-mentioned
communications without owning (and having to declare) the franchise.
Interestingly, having
regard to the transcripts of evidence, even Kok conceded that Ncala
was ‘in the process of acquiring’
an interest in the
franchise and did not make the necessary stronger allegation that it
had actually been acquired.
Contravention of the
SABC internet usage policy.
Ncala was also found
guilty of contravening the applicant’s internet usage policy,
which he ought to have known about, in
respect of mails sent by him
relating to the Capello franchise. However, here too the
commissioner properly appreciated the severity
of this misconduct
when he found dismissal an unfair sanction. In line with what I have
set out above, insufficient evidence
was led by the applicant to
establish that this infraction had so serious an effect on the
employment relationship to justify
dismissal on a first offence and
after 15 years service. The commissioner’s decision on
sanction was thus not unreasonable
or incapable of being justified.
Travel claims
Ncala was found not
guilty on the third, more serious count. This is of dishonesty or
misrepresentation in respect of some of
his travel claims. The
evidence that Ncala inflated some of his claims comes from the
applicant’s sole witness, Kok. Kok
used an ‘electronic
map’ to calculate the distance of the journeys Ncala logged.
Kok then compared the distances
Ncala claimed to the distances the
electronic map calculated those journeys to be. All in all, the
excess claimed was for 1180
km, which translates into a monetary
value of R4 766.36.
The applicant’s
challenge started with the commissioner’s mention of the
two-year delay in the applicant disciplining
Ncala. The applicant
pointed out that this issue was never raised in defence. It argued
that the commissioner was not entitled
to raise the issue
meru
motu
and by doing so committed a reviewable irregularity or
process related unreasonableness. It further argued that the
commissioner
was not entitled to make an adverse finding against the
applicant without its reasons being heard on the issue of the delay.
In addition, the commissioner misconstrued the evidence about any
‘delay’. Although the ‘fiddling’ of the
travel claims allegedly took place in 2008, this fact was only
discovered after an investigation in 2009. The investigation was
finalised on 15 March 2010. Mr Ncala was charged just over two
months later on 20 May 2010, hardly a blameworthy delay, the
applicant argues.
Since the allegations of
dishonest conduct by Ncala may reasonably lead to dismissal, the
applicant argued that the commissioner’s
dispensing with the
charge on the basis of delay, on its own warranted the award being
set aside. The problem with this argument
is that, within the
overall structure of the award, the finding that there had been an
undue delay in charging Ncala seems to
be an alternative,
self-contained ground for quashing the travel claim charge. By the
time the commissioner makes this finding,
he had already, on the
evidence, accepted Ncala’s explanation for the extra distances
claimed.
If the finding on delay
were the only reason for dispensing with this charge, I probably
would have found it to be an instance
of process-related
unreasonableness. However, the commissioner gives other distinct and
complete reasons for dismissing this
charge based on an analysis of
the evidence itself. The misdirection on the alternative issue of
delay therefore had no material
effect on the outcome, as long as
those other reasons for finding Ncala not guilty hold, which I
discuss hereunder.
Evidence of dishonesty
or misrepresentation
Using an electronic map,
Kok calculated that Ncala claimed 1180 km in excess of what trips to
the locations on his travel claims
should have been. It was put to
Kok, and Ncala later testified, that when he logged a trip, for
instance, to ‘Braamfontein’
or ‘Cresta’, he
visited several clients in that general area on the same day. He did
not put down the details of
the whole trip on the form. Thus the
distances measured by Kok to and from the suburbs Ncala indicated on
his trip logs would
be shorter than what Ncala actually travelled
and legitimately claimed for. This is because intra-suburban travel
was not accounted
for in Kok’s calculations.
As support for his
version, Ncala indicated that his supervisors at the time were aware
of this practice and thus authorised his
travel claims without
demur. This was put to Kok who was not in a position, from his own
experience, to deny that Ncala’s
supervisors were aware of how
he claimed for trips. It is clear from the evidence that the claims
were approved. The applicant
produced no additional admissible
evidence to cast doubt on Ncala’s explanation. Ncala’s
defence is further not inherently
improbable, especially in light of
the fact that his claims were approved by his supervisors, from the
exercise of proper oversight
and checking could be expected. These
were all factors that, although not elegantly set out by the
commissioner, informed his
finding that Ncala’s explanation
for the distances claimed was more believable than the employer’s
accusation of
dishonesty and misrepresentation. This finding is, in
my view, not unreasonable.
The applicant complained
that the commissioner prevented printouts of the abovementioned
electronic map being placed before him
as evidence. There is nothing
in the transcripts to substantiate this claim. However, since Ncala
did not dispute the calculations
provided by Kok but rather provided
an explanation for the extra mileage, it was not necessary to have
produced the map as evidence.
It might though have
been useful to produce the map, in order to interrogate and measure
Ncala’s claims about the number
of clients he visited in a
given area in greater depth, something the applicant’s
representative failed to do. It appears
that this is what the
commisioner meant when he stated the following:
‘
The
applicant’s argument that his mileage is higher than what Mr
Kok’s map indicated as he visited a number of government
departments in a given area that he visited is credible especially as
Mr Kok did not produce a copy of the map on which he based
his
calculations.’
When the commissioner
accepted Ncala’s explanation about visiting a number of
departments, the commissioner erroneously
uses the word ‘credible’
to describe the basis of his prefering Ncala’s evidence.
Perhaps a better way of making
the point would have been to say that
Ncala’s explanation was not shaken under cross-examination or
nor contradicted by
any witnesses or documents such as the
electronic map. The commissioner may also rather have noted that
Ncala’s explanation
was not inherently improbable. The award
does not fall to be set aside on the basis of the commissioner’s
mislabeling of
his assessment of the evidence; an assessment that
does not otherwise appear to be unjustifiable when the award is read
as a
whole.
Kok did testify that he
had spoken to Ncala’s previous supervisor who told him that he
did not scrutinise Ncala’s
claims but signed them off on
trust. This is hearsay and was not unreasonably assigned low weight
by the commissioner, if considered
admissible at all.
In argument, the
applicant brushed aside the fact that information from Kok about how
Ncala’s supervisors handled his claims
is hearsay by inviting
the court to find it improbable that Ncala’s supervisors would
have signed off on his claims because
they were dishonest. This is a
circular form of reasoning which assumes as a premise, its very own
conclusion. It also fails
to address the reason, implied in the
award, why the commissioner did not have regard to the evidence
about the supervisors authorising
travel claims solely on trust. The
supervisors ‘did not testify’ and therefore Ncala’s
plausible version stood
unrebutted.
The duty to rebut the
employee’s defence flows from the shifting of the evidentiary
burden.
The evidentiary burden “refers to
one party’s duty of producing sufficient evidence for a judge
to call on the other
party to answer and it also encompasses the
duty cast upon a litigant to adduce evidence in order to combat a
prima facie
case
made by his opponent.” (See P.J. Schwikkard
et
al
Principles of Evidence
;
Juta & Co. 1997 at p.393). Put differently, it is an informal
but practical need to persuade the commissioner that a party’s
version is sufficiently credible to mean that it should be believed
and that the opposing party needs to introduce further evidence
or
explanation in order to rebut it. In practice the evidentiary burden
shifts back and forth between the parties as a case unfolds.
This
shifting happens independently of which party has the formal burden
of proof, which is assigned as a matter of law.
The reason
for imposing an evidentiary burden is to ensure that the party
alleging wrongdoing does not have to disprove all imaginable
defences, only those properly supported by sufficient evidence. In
dismissal proceedings, even though the employer has the overall
burden of proof, once it has adduced evidence of sufficient weight
to warrant a rebuttal, a dismissed employee needs to consider
how he
is going to meet the evidentiary burden. If, however, the employee’s
explanation appears sufficiently persuasive,
the employer will be
faced with a challenge to provide sufficient evidence and argument
to negate the employee’s version
and so on. None of this means
that a hearing is an open-ended affair with parties reopening their
cases to add evidence. The
way in which the evidentiary burden
swings between the parties means that it is important for parties to
assess in advance what
evidence is available to support their
version and how this evidence may be best adduced. A further
opportunity to assess the
sufficiency of its case is presented to
the party leading evidence first, when its opponent’s version
is put to its own
witnesses in cross-examination
It seems to me that once
it was put to Kok that Ncala visited a number of clients in a given
area which he supervisors knew about
and shown to him that Ncala’s
supervisors had actually signed off on his travel claims, it was no
longer safe for the party
bearing the overall onus to rely solely on
the evidence of Kok. It was not unreasonable to regard Ncala’s
version not only
as a plausible explanation for the higher travel
claims but a preferable one. The applicant would have needed to
provide enhanced
proof of its allegations to rebut Ncala’s
explanation, which was put to its witness.
It might be argued that
it was Ncala’s duty to call his supervisors to corroborate his
explanation. I do not see it this
way. The nature of the original
evidence of wrong-doing against Ncala consisted of an inference that
the discrepancy in Kok’s
calculations and Ncala’s travel
claims consitututed dishonest conduct. It is not unreasonable, in
analysing the evidence,
and in particular considering the nature,
extent and weight of the evidence against Ncala, to regard his
explanation as being
sufficient to rebut the
prima facie
impression of wrong-doing. In any event, at least one former
supervisor was interviewed by Kok who testified that this supervisor
told Kok that he simply signed off on the travel claims without
verifying them. It seems that this was a witness the employer
was in
a better position to call in order to corroborate its witness’
testimony.
The discrepancy of 4
November 2008
One entry on Ncala’s
travel log is, though, incorrect as a matter of logic. On 3 November
2008, Ncala recorded the odometer
reading as 9080 when returning to
the applicant’s offices after work travel. On 4 November 2008,
when he started out on
a work trip again from the applicant’s
offices, he recorded the odometer reading as still being 9080. It
was common cause
however that, overnight, Ncala had gone home with
the same car. The odometer reading in the morning should therefore
have been
at least 24 kilometres greater.
The explanation Ncala
gave is that he did not include his work to home kilometres on a
daily basis but adjusted his claim accordingly
at the end of each
month. The commissioner found that, while Ncala’s explanation
is not altogether satisfactory, he accepted
it. After all, Ncala’s
claims were checked by two people and authorised by his supervisor.
It would be ‘strange’
if they permitted unauthorised or
inflated claims to go through. The commissioner reasoned that if
Ncala dishonestly did not
make these adjustments to his travel
claims at the end of each month, the probabilities favoured the
checkers picking this up
and not ‘actioning’ the claims.
As awkward as Ncala’s
explanation is in respect of this discrepancy, the commissioner
found that, on a balance of probability,
this discrepancy did not
constitute sufficient proof of dishonesty or deliberate
misrepresentation as per the charge. This finding
is not
unjustifiable or unreasonable based on the
evidence
before
him.
The applicant urged this
court to find that this discrepancy amounted to dishonesty because
other travel claims Ncala made were
also dishonest. This reasoning
is dubious. It also fails because there was insufficient evidence
before the commissioner that
the other claims were in fact dishonest
or misrepresentations.
The “admission”
to Mr Kok
Kok testified that,
during an interview with Ncala, he admitted to making ‘mistakes’
with his travel claims. In the
hearing, Ncala both denied making
mistakes or making this admission. Faced with a dispute of fact
about whether an admission
was made, Kok testified that another
person was present during this interview, one Naicker. After Kok’s
re-examination,
a discussion ensued between the commissioner and the
applicant’s representative about calling Naicker as a witness.
Referring
to Naicker, the commissioner expressed a view,
inter
alia
, that ‘if you can get him here today you can call him
…’
It does not appear that
he made a ruling that Naicker not be allowed to testify if the
applicant’s representative insisted.
The commissioner seems to
have tried to speed up the process by urging the applicant to be
decisive and efficient about producing
Naicker if it elected to use
him as a witness to corroborate Kok.
In assessing whether
this was an instance of process-related unreasonableness, I am
mindful that CCMA commissioners may sometimes
need to be slightly
more robust in their guidance and direction to parties on the
conduct of the litigation than may be the case
in a court. This is
especially if they are to give full effect to section 138 of the
LRA, discussed above.
The commissioner also
found it improbable that such an admission was made by Ncala, given
his firm, ‘not guilty’ stance
in the hearing. Once
again, the commissioner mistakenly employed the concept of
‘credibility’ and ‘benefit
of the doubt’ to
describe the basis on which the evidence was accepted. It is however
patent from a perusal of the passage
as a whole that the
commisisoner was in fact questioning whether it was probable that a
person who had all but admitted to misrepresentation
during a
tape-recorded and witnessed interview would come to a hearing with a
completely and demonstrably different version of
this interview. As
stated above, I do not think that the misuse of terminology to
describe the process by which evidence was
evaluated should count as
a ground for review when it is fairly clear what the commissioner
meant to find and this finding was
not itself unreasonable.
The sanction for
dishonesty
The commissioner spent a
relatively small portion of his award indicating that, even were
Ncala to have been found guilty on the
travel claim charge, it was
not clear that this was a dismissible offence as no company
disciplinary code stipulating as much
was entered as evidence. I
tend to agree with the applicant that these comments are irrelevant
in respect of the travel claim
charge, on which Ncala was found not
guilty. As such, unreasonably made or not, they have no material
effect on the result.
I disagree that the
commissioner was ‘pre-occupied’ with the failure of the
applicant to tender its disciplinary code
as evidence to the extent
that he allowed this issue to influence his mind in deciding other
matters. The applicant merely criticises
the commisisoner without
clearly setting out the factual basis upon which it relies to show
any level of reviewable preoccupation
at all.
Reinstatement or
compensation
It is clear that from
the award (para 47), as well as the transcripts, that Ncala sought
reinstatement as relief. Therefore, when
the commissioner summarised
his evidence and indicated (para 18) that Ncala wanted compensation;
this was an obvious and innocuous
error. That the applicant even
raised this as a ground for review on the basis that the
commissioner misconstrued the evidence
and that Ncala was entitled
only to compensation is surprising. This ground for review has no
merit whatsoever.
Amount of compensation
Ncala was reinstated but
not with full retrospectivity. He was reinstated “from 7
November 2010 with no loss of salary from
that date”. In
calculating the amount owing, the commissioner noted that
approximately three months had passed from the
effective date of
reinstatement with full salary and the date of the award. He went on
to surmise that two weeks would pass before
the parties received his
award and thus ordered an additional two weeks salary to be paid to
Ncala in lieu of this predicted
period of administrative hiatus. As
it turned out, the CCMA conveyed the award to the applicant on the
day it was signed and
thus, there was no delay. This is not a point
to take on review. It falls way beneath the review test radar. The
applicant was
granted 30 days to reinstate Ncala and so the 12 days
‘overpayment’ becomes negligible and a minor
inconsequential
issue.
Conclusion
In the end, the question
that I have to answer is whether the commissioner reached a decision
that a reasonable decision-maker
could not reach? The answer is no.
Order
In the premise, my order
is as follows:
The application for
review and setting aside of the award issued by the commissioner
under case number GAJB26897-10 is dismissed
with costs.
_____________
Whitcher, AJ
Acting Judge of the
Labour Court
Appearances:
For the Applicant:
Advocate S Baloyi
Instructed by: Maserumule
Inc Attorneys
For the Third and
Fourth Respondent:
Advocate F J Van der Merwe
Instructed by: Kelly
Morekwa Lekoto Attorneys
1
[2010]
5 BLLR 513
(LAC).
2
(2007)
28 ILJ
2405 (CC).
3
SA
[2010] 3 BLLR 305
(LC).
4
(unreported
LC judgment by Gush J, case no D242/09, dated 25/10/2010).
5
(2011)
32 ILJ 723 (LC).
6
(2012)
33
ILJ
329
(LAC).
7
See
Naraindath v CCMA and Others
(2000) 21 ILJ 1151 (LC) at para
42 and The
Foschini Group v Maidi
[2010] 7 BLLR 689
(LAC) at
para 33.
8
The
Foschini Group
(supra)
[2010] 7 BLLR 689
(LAC) at para 38.
9
See
Edcon Ltd v Pillemer NO and Others
(2009) 30
ILJ
2642
(SCA).