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[2013] ZALCJHB 8
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First National Bank a division of Firstrand Bank Ltd v Labase and Others (JR 2259/09) [2013] ZALCJHB 8 (24 January 2013)
Not reportable
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 2259/09
In the matter between:
FIRST NATIONAL BANK, A
DIVISION OF
FIRSTRAND BANK LIMITED
...................................................................................
Applicant
and
MANDISA NARRIS LABASE
.......................................................................
First
Respondent
MONISE JACOB PONOANE
..................................................................
Second
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
..............................................................
Third
Respondent
Heard: 12 October 2012
Delivered: 24 January
2013
Summary: Review
application – commissioner finding that the first respondent
was not dishonest by withdrawing money from her
study loan account
for purposes not related to studies – commissioner’s
award grossly irregular – arbitration
award reviewed and set
aside.
___________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
This is an application
to review and set aside an arbitration award issued by the second
respondent (‘the commissioner’)
on 21 July 2009 under
case number FS 533 – 09. The commissioner found that the
dismissal of the first respondent was substantively
unfair and
ordered the applicant to reinstate the third respondent from the
date of her dismissal without any loss of benefits.
The commissioner further
ordered the applicant to pay the first respondent arrear salaries in
the amount of R53 232.90 calculated
as follows: R7604.70 x 7
months arrear salaries = R53 232.90. The commissioner ordered
that the said amount must be paid
on or before 31 August 2009.
This application was
preceded by condonation applications in respect of the late filing
of the review application as well as the
late filing of the opposing
affidavit. The applicant also sought condonation for its failure to
attach the arbitration award
to the review application at the time
of the lodgement of the review application. I granted condonation on
the respective condonation
applications as good cause was shown by
both parties.
Facts
The first respondent was
employed by the applicant on 5 August 2001 until her dismissal on 17
December 2008. At the time of her
dismissal she was employed as a
collections official earning an amount of R7604.70.
On 19 June 2008 the
first respondent applied for a study loan which was granted. The
amount that was granted was R2150.00.
On 27 October 2008, the
first respondent withdrew an amount of R300.00 from her study loan
account. The money was used for medicine
for her child that was ill
and it was never disputed by the first respondent that the money was
not used towards her studies.
The first respondent was
charged with the following:
‘
fraud
and dishonesty in terms of paragraph 4.2.1 of the Banks Disciplinary
Code and Procedure, in that it is alleged that you have
withdrawn
R300.00 from your study loan account for personal use on 27 October
2008’
She was then found
guilty and dismissed on 17 December 2008. She subsequently appealed
her dismissal but the appeal was also dismissed.
The arbitration award
The commissioner
preferred the first respondent’s version to that of the
applicant and found,
inter alia
, that the first respondent
did not materially gain in that she was the one who reported the
incident to her manager Lorna Martins
(‘Martins’), that
she had taken R300.00 from her study loan account to buy medicine
for a child. In the commissioner’s
view these set of facts did
not amount to fraud or dishonesty because they did not translate to
a misrepresentation as per the
charges.
The commissioner found
that he could not accept Khoza’s evidence which he gave during
re-examination where he testified
that it was discovered by the
applicant that the first respondent had taken money from the study
loan account because during
his cross examination when it was put to
him that the first respondent was the one who informed the applicant
about the withdrawal
of the said R300 he did not materially dispute
that fact. Instead, he testified that the first respondent did not
seek prior
approval before she could withdraw the money.
Because of this, the
commissioner found that the respondent was not dishonest to the
applicant. This was because she disclosed
that she had taken money
from her study loan account to buy medicine for her child and this
fact was reported to the applicant
by first respondent.
The commissioner further
stated that Khoza did not even know the name of the person who
discovered the withdrawal of the money
from the applicant. The
reason for this, according to the commissioner could possibly be
that Khoza was only involved in this
matter at an appeal stage
whereby he decided the matter solely on the documents that were
before him. The commissioner accordingly
regarded Khoza’s
evidence in relation to the discovery of the withdrawal as hearsay
evidence and rejected it.
The commissioner further
found that when the first respondent was asked why did she not ask
Martins before she could take the
money, the first respondent stated
that she acted “abruptly” because she was panicking for
her child who was sick.
According to the commissioner this fact was
thereafter not ‘assailed’ by the applicant.
The commissioner also
found that there was no written rule in existence stating that the
first respondent may not use the study
loan money for purposes other
than for the study loan.
Finally according to the
commissioner the sanction of dismissal of the first respondent
brought a sense of shock in light of the
dictum reasoning by Ngcobo
J in
County Fair Foods (Pty) Ltd v CCMA and Others.
1
Grounds for review
The applicant raised the
following grounds for review are that the commissioner fundamentally
misconstrued the evidence presented
before him and in doing so
failed to properly apply his mind to the evidence.
Further, the
commissioner disregarded the evidence of Lot Khoza (‘Khoza’),
the applicant’s witness almost in
its entirety. Since Khoza
was involved in the appeal stage, he gave evidence regarding the
policies and procedures of the applicant,
as well as his involvement
during the appeal process.
The commissioner
rejected Khoza’s evidence that the withdrawal of the amount
from the first respondent study loan was discovered
by her manager,
one Martin. He states that the evidence amounts to hearsay, since
Khoza was not present at the time that the
withdrawal was
discovered. The applicant submits that nothing much turns on this
issue.
The finding of the
commissioner that there was no dishonesty involved in the conduct of
the first respondent and his acceptance
of her version particularly
in respect of her alleged disclosure of the withdrawal to Martin is
untenable for a number of reasons
including the following:
The parties had agreed
at the arbitration, by way of the pre-arbitration minute, that the
first respondent had R300.00 from
her study loan account for a
purpose not related to studies. According to the applicant this
constituted a clear breach of
the study loan policy, which
constituted a serious offence regardless of whether the first
respondent reported the matter to
Martin after her withdrawal of
the money, or whether Martin discovered the withdrawal himself.
In any event, Khoza
testified that the first respondent’s withdrawal was
discovered by an employee of the applicant, Martin,
who approached
the first the applicant to discuss the issue. Khoza indicated that
prior approval was required before withdrawing
from this study loan
account. The first respondent did not disclose that irregularity
before it was discovered by the applicant.
[20] During cross
examination, the first respondent admitted deliberately misleading
the applicant on the use of money.
[21] Also during
cross-examination, the first respondent admitted that deliberately
misleading the applicant on the use of the money
constituted
dishonesty and that dishonesty was a dismissible offence in terms of
the applicant’s disciplinary code and procedure.
[22] According to the
applicant it is patently clear that had the first respondent not been
confronted by Martin, she would not
have reported the withdrawal to
the management of the applicant.
[23] The applicant
submits that commissioner clearly misdirected himself and failed to
consider the evidence of Khoza as well as
closing argument submitted
by the applicant in respect of the allegations of inconsistency.
Khoza testified that the applicant
had dismissed employees for
similar misconduct.
[24] The applicant
contends that quantum was not the primary issue as the use of that
money for an unauthorised purpose constituted
material breach of
trust on the part of the first respondent in respect of the failure
to observe a fundamental principle governing
the granting of the
study loan account.
[25] The applicant raises
an issue that commissioner relied heavily on the reason for the first
respondent admitted breach of the
study loan policy, but failed to
appreciate that despite the reason advanced by the first respondent,
the truth is that she had
still breached the policy.
[26] Further, Khoza
stated that the misconduct committed by the first respondent rendered
the continued working relationship intolerable.
Accordingly the
relationship of trust had been broken and accordingly the appropriate
sanction was dismissal.
[27] The applicant argues
that the commissioner’s interpretation of the evidence was so
unreasonable so as to render the award
reviewable.
Analysis
[28] The test applicable
in cases like these is well known and established. The principles
have been enunciated in various judgements
interpreting the Sidumo
2
judgement. In
Herholdt v Nedbank Limited,
3
Murphy AJA held that ‘
dialectical
and substantive reasonableness are intrinsically interlinked and that
latent process irregularities carry the inherent
risk of causing an
unreasonable substantive outcome.’
4
[29] Murphy AJA went
further to say that:
‘
In
short if the conduct of the commissioner prevents a fair trial of the
issues even if perfectly well intentioned and
bona
fide
,
though mistaken, then such conduct will amount to a gross
irregularity, and that would be enough successfully to found a review
under section 145 (2) of the LRA. The court by necessity must
scrutinise the reasons of the commissioner not to determine whether
the result is correct; or for that matter substantively reasonable,
but to determine whether there is a latent irregularity, that
is, any
regularity that has taken place was in the mind of the commissioner,
which will only hearsay tenable from his or her reasons.’
5
[30] It is common cause
that the first respondent admitted to having withdrawn R300.00 from
her study loan account without having
been authorised to do so. It
was admitted that by the first respondent that this amount was
deducted and used for a purpose that
was not related to her studies.
That on its own establishes breach of the study loan policy.
[31] It is immaterial, in
my view, whether or not the first respondent reported it or was
discovered by Martin. The commissioner
made much of this and devoted
almost his entire award on the fact that the first respondent had
reported the incident. The point
is even if she reported it, she did
so after she had already taken the money. It cannot be an excuse that
she acted ‘abruptly’
by not first getting permission from
the employer.
[32] It does not help the
case of the first respondent either to suggest that a loan is a loan,
which means she was still to pay
it back. This was in any event not
the basis of the commissioner’s award.
[33] It is quite telling
that the first respondent admitted during cross examination to have
misled the applicant deliberately.
She then changed her testimony
later on to say she did not deliberately mislead the applicant.
[34] I accept the
applicant’s submission that nothing much turns on Khoza’s
evidence that an employee of the bank discovered
the withdrawal,
which evidence is said to be hearsay. The issue is Khoza testified
that there was a study loan policy which formed
of the HR manual
which it was established that the applicant was aware of, which
specifies the purpose of the study loan policy.
[35] The fact that the
policy does not specifically prohibit withdrawal of the money for
other purposes does not make the conduct
excusable. There need not be
a written rule in every situation prohibiting a certain conduct. If a
policy states the purpose of
the policy, it follows that conduct
outside that purpose, like in this case, is prohibited and should be
viewed as misconduct,
if not specifically authorised by management.
[36] Using money for
purposes not allocated for, in my view goes to the heart of the
employment relationship especially in the banking
environment. In
Standard Bank of SA Ltd v
CCMA
6
, Tip AJ held that:
‘
The
existence of the duty upon an employee to act in good faith towards
his or her employer and to serve honestly and faithfully
is one of
long-standing in the common law. It has been regularly and strongly
opposed by our courts. There can in my view be no
discounting of
these principles in an environment such as the conduct of banking,
every level and every transaction of which must
be permeated with
unqualified good faith and honesty.
’
7
[37] In essence whether
or not the first respondent reported the withdrawal after the event
is of no purpose as she knew or ought
to have known that she had
infringed the study loan policy, which in my view qualified as a
serious offence.
[38] In the case
Zeelie
v Price Forbes (Northern Province)
8
Jali J held that: ‘
Disciplinary
charges are not intended to be a precise statement of the elements of
an offence. The charges need only sufficiently
precise to allow the
charged employee to identify the incident which forms the
subject-matter of the complaint in order for him
or her to prepare
suitable defence.’
9
[39] To this end, charges
brought against the first respondent were sufficiently clear as they
captured what took place and when.
[40] In my view the
changes in this case is sufficiently particular for the first
respondent to identify what case she was called
upon to answer. In
her own version the first respondent had admitted to have breached
the study loan policy that on its own in
my view points to the
finding of guilt.
[41] I have already found
that this conduct went to the heart of the employment relationship
especially the first respondent was
employed in a banking environment
where she dealt with money. It is important for good faith and
honesty to be maintained in this
environment. Dismissal was therefore
the appropriate sanction.
[42] The commissioner,
therefore, committed gross irregularity by holding that there was no
dishonesty in these circumstances. Accordingly,
his arbitration ward
must be reviewed and set aside.
[43] Whilst part of the
record had to be reconstructed, the Court is of the view that it has
sufficient facts before it to come
to a substitute the decision of
the commissioner with its own decision. This is largely because the
material facts informing the
crux of the case were largely common
cause. It would therefore be a waste of time to remit the matter back
to the CCMA for a fresh
hearing before another commissioner.
[44] I do not to award
any costs against the first respondent.
[45] I therefore make the
following order:
45.1 The arbitration
award issued by the second respondent (‘the commissioner’)
on 21 July 2009 under case number FS
533 – 09 is reviewed and
set aside.
45.2 The commissioner’s
award is substituted as follows:
The dismissal of the
first respondent was substantively fair.
There is no order as to
costs.
____________
Boqwana AJ
Acting Judge of the
Labour Court
APPEARANCES:
FOR THE APPLICANT:
Advocate F Venter
Instructed by
Cowan-Harper Attorneys, Sandton
FOR THE FIRST RESPONDENT:
Advocate P Venter
Instructed by Mabalane
Seobe Attorneys, Bloemfontein
1
[1999]
11 BLLR 1117
(LAC) at 1127 E.
2
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 12
BLLR 1097
(CC).
3
(2012)
33 ILJ 1789 (LAC).
4
Herholdt
judgment at para 33.
5
Herholdt
judgment at para 40.
6
(1998)
19 ILJ 903 (LC) para 42
7
Standard
Bank of SA Ltd v
CCMA
supra
para 42
8
(2001)
22 ILJ 2053 (LC)
9
Zeelie
v Price Forbes (Northern Province) supra
at
para 37.