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[2013] ZALCJHB 244
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Mohlala v South African Post Office and Others (JR 737/10) [2013] ZALCJHB 244 (10 June 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 737/10
In the matter between:
FRITZ
LETSONI MOHLALA
......................................................................................
Applicant
and
SOUTH
AFRICAN POST OFFICE
...............................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
..........................................................
Second
Respondent
M.J.
TSABANE N.O
....................................................................................
Third
Respondent
Heard
:
18 January 2013
Delivered
:
10 June 2013
Summary:
judgment
HAFFEGEE AJ
Introduction
This is an application to review and set aside an arbitration award
made by the third respondent (“the commissioner”)
dated
26 February 2010 in which the dismissal of the applicant was found
to be both procedurally and substantively fair.
The applicant started employment with the first respondent (“the
Post Office”) on 1 April 1999 and became a branch
manager at
the Menlyn Post Office since 1 December 2004.
On 28 February 2006, a member of the public opened a savings account
at the Menlyn Post Office in the name of a Mr GJ Ackhurst
with an
initial deposit of R50. Ms Selepi, a teller at the Menlyn Post
Office processed the transaction to open the account.
The account
was opened fraudulently as the person who had opened the account was
not Mr Ackhurst but one Mr Makgolo. Mr Makgolo
used a false passport
when opening the account and presented an invoice that had been
tampered with to verify his address. On
the same day, a cheque in
the sum of R37 620 was deposited into the account. Ms Selepi
processed this transaction too. The cheque
was stolen and probably
intercepted while on its way to Mr Ackhurst. A card was issued for
the account by the Postbank division
of the Post Office in
Bloemfontein and sent to the Menlyn branch. The Post Office
maintains that Ms Selepi acted in good faith
and not dishonestly or
negligently.
On 22 March 2006, a withdrawal of R10 300 was made from the account.
Another teller, P Mahlangu processed this transaction. The
applicant
authorised this transaction because the amount withdrawn required
his authorisation.
On 27 March 2006, Mr Makgolo, purporting to be Mr Ackhurst
approached a teller at the Kelvin Post Office to withdraw R20 000
and indicated that he had lost his card. Investigations later
revealed that the card had been cancelled on 24 March 2006 because
of fraud related to the cheque
1
deposited on 28 February 2006. Nevertheless, the branch manager, Mr
T Bengu issued a new bankcard
2
and tried to process the withdrawal of R20 000. He could not because
the branch did not have that much money on hand. Mr Makgolo
was
directed to the Rivonia Post Office.
On 27 March 2006, Mr Makgolo also called at the Menlyn Post Office
to attempt a withdrawal of R9 000. The applicant was assisting
the
tellers because it was busy. When he tried processing the
withdrawal, the computer system reflected the card as lost even
though Mr Makgolo had the card with him.
According to the applicant, he called Postbank in Bloemfontein and
discussed the matter with Ms Alicia Lombard. She indicated
that the
account was fraudulent and gave him reference number 121. When he
returned to the counter, Mr Makgolo had disappeared.
The applicant
damaged the magnetic strip on the card and kept it with the
withdrawal slip Mr Makgolo had handed to him. He also
made a note
(“the note”) of the incident as follows:
‘
On the
27 March client come to do a withdrawal on the account number
2607026000003118 ID Number 4406025023081 then the system says
the
card lost. I phone Postbank and spoke to Alisha she says I must
destroye the card because this a fraud account file no 121.’
(sic)
Mr Makgolo was apprehended when he returned to the Kelvin Post
Office on 29 March 2006 when he again tried to make a withdrawal
at
the Kelvin Post Office. He was taken to the Menlyn Post Office
where, according to the Post Office, he pointed out the applicant
to
Mr Butiki Josias Mnisi, employed in the security investigation
department of the Post Office. Mr Makgolo said that the applicant
had provided him with the false passport and had given him R100 to
withdraw money from the account. The applicant produced the
Postbank
card, withdrawal slip and the note referred to above. The applicant
and Mr Makgolo were arrested. The applicant was
released on bail
after spending a night in police custody.
Mr Mnisi returned to the Menlyn Post Office on 30 March 2006 with
another investigator. They found the damaged card, the withdrawal
slip and the note referred to above under the applicant’s desk
pad. Mr Mnisi testified at the arbitration that the applicant
‘played a significant role in the opening of the account and
the issuing of the post bank card.’
3
The applicant was not present when his office was searched.
The applicant returned to work after first going on leave for about
a month. The Post Office did not take disciplinary action
against
the applicant. During June 2006, the Post Office handed the
applicant a questionnaire relating to fraud at the Menlyn
Post
Office. He responded to the questionnaire on 15 June 2006 and an
investigating officer collected the questionnaire on 6
July 2006.
Criminal charges against the applicant were withdrawn during October
2006. The applicant was rearrested on 9 February 2007 and
later
released on bail of R5000.
The Post Office suspended the applicant on 12 February 2007 to
investigate misconduct in the form of fraud against the applicant.
This was almost a year after the incidents of March 2006 and the
applicant’s initial arrest.
The criminal charges against the applicant were once again withdrawn
during September 2007. The applicant reported for work but
was sent
home by an area manager of the Post Office.
On 29 November 2007, Mr Ngomane, the General Manager of Security and
Investigations of the Post Office, questioned the applicant.
During
November 2007, Mr Ngomane also reallocated the investigation to Mr
Barend Oosthuizen, a senior forensic investigator,
because the
initial investigator, Mr J Marais, had resigned.
4
Mr Oosthuizen completed his investigation and sent a report to Mr
Ngomane on 19 December 2007.
The Post Office charged the applicant with misconduct on 14 November
2008. The charges against the applicant read as follows:
‘
Charge
1
Dishonesty in that during the
period of 28 February 2006 and 29 November 2007 deliberately
attempted to mislead/defeat the ends
of justice the misrepresentation
of facts by supplying management with false information/evidence (to
disguise your involvement)
with regard to the circumstances you
handled and attempted Post bank fraudulent withdrawal of R9 000.00 at
Menlyn on 27 March 2006
in account number 260702600003118 in the name
of GJ Ackhurst.
Evidence against you revealed
that you were involved in the planning/execution of fraudulent
activities which took place in the
account of Mr Ackhurst during the
period of 28 February 2006 and 27 March 2006 by assisting the suspect
which where caught.
You furthermore were aware of
the fact that fraudulent activities had taken place in the account
but failed to declare/report it
and upon enquiry you then also
supplied Management with false information by stating that you
informed post bank of the incident
while you have no proof of it.
The company suffered loss of R10
300.00 due to your involvement in the case
Alternative
Gross negligence in that during
the period of 28 February 2006 and 27 March 2006 at the Menlyn Post
Office were Grossly Negligent
by failing to comply with the standard
of care expected from you with regard to the manner you handled a
Post bank attempted withdrawal
of R9 000.00 in account of Mr GJ
Ackhurst. After the incident you realised that there were fraudulent
activities in the account
and then you deliberately failed to
report/declare what has transpired
Evidence obtained against you
revealed that you are involved in the execution/planning of
fraudulent activities that took place
in the account and that you
attempt to mislead Management by deliberately providing false
information to disguise your involvement.
The company has suffered a loss
of R10 300.00 due to your involvement in the case
Charge 2
Misconduct G3
Prejudicial conduct in that you
during the period of 28 February 2006 and 27 March 2006 at the Menlyn
Post Office failed to ensure
that the maintenance of good order and
smooth running of the Post Office were exercised by you with regard
to the manner you handled
an attempted Post bank fraudulent
withdrawal of R9 000.00 at Menlyn on 27 March 2006.
You realise that fraudulent
activities are taken place and failed to declare/report the incident
to management.
Evidence obtained against you
reveal that you were involved in the execution/planning of the
fraudulent activities that took place
out of the account and that you
assisted the suspect caught to make illegal attempted withdrawals out
of the account. The company
has suffered a loss of R10 300.00 due to
your involvement in the case.
Upon enquiry you furthermore
provided Management with false information to disguise your
involvement.’
5
The applicant was dismissed on 6 February 2009 after the Post Office
convened a disciplinary hearing. The letter notifying him
of his
dismissal refers to an attachment as the reason for his dismissal.
The attachment is not part of the record. Neither the
award of the
commissioner nor counsel for either party could assist me with the
precise reason for which the applicant was dismissed.
In other
words, it is not clear for which charge or charges the applicant was
dismissed. Nevertheless, it appears that the applicant
was dismissed
for his alleged involvement in the fraud; for not reporting the
matter; and for stating that he had reported the
matter even though
he had not.
Arbitration award
The commissioner found:
‘
From
the actual matrix of this case, the Respondent had succeeded in
proving on a preponderance of probabilities the dismissal of
the
applicant was fair – procedurally and substantively. The
probabilities are overwhelming against the applicant. The
Respondent’s
testimony before me, which I accept is that an old
man who apprehended attempting to make a fraudulent withdrawal from
an account
in which a stolen cheque was deposited pin pointed the
applicant as the Menlyn branch manager who him a fraudulent passport
and
an amount of R100.00 to go a make a withdrawal of a large sum of
money from the fraudulently opened account
…
Apart
from having been pin pointed out by the old man from the street; the
documents related to the fraudulent account were found
in the
applicant’s office some two three days after the old man
allegedly ran away form the Menlyn branch. This cannot be
regarded as
a mere coincidence and a simply congruent of events. It is far more
than that. Why would the apprehended person pinpoint
the applicant
and no one else is beyond me. No reasonable explanation was given why
only the applicant was pointed out to the police.
The applicant’s
attempts to attempt to unconvincingly explain away that the old man
was vindictive were unsuccessful.
…
The
applicant’s averments that he phone the post bank in
Bloemfontein and spoke… Alycia Lombard who gave him reference
number 121 is without merit and were not substantiated in any manner
whatsoever. This is displaced by Ms Segalo’s testimony
who
stated that number 121 is one of the authorisations that were
allocated to her and she definitely did not speak to the applicant
on
the day in question. Ms Segalo’s testimony is further that
there is no possibility at all for duplication of authorisation
numbers. Ms Segalo remained steadfast and unshaken in her testimony
despite being subjected to rigorous cross examination.
The applicant’s averments
that the Respondent inconsistent in meting out discipline are without
merit and not substantiated
in anyway whatsoever. Evidence adduced
before me indicated that the teller who opened the account initially
acted in good faith
and there was nothing untoward with the opening
of the account. Secondly, the staff members who re-issued the post
bank card also
did so in good faith as to them there was nothing
suspicious. There is no reason to institute disciplinary action
against these
staff members.
It is accepted that the
Respondent took inordinately long before instituting disciplinary
action against the applicant. This, however,
cannot be misconstrued
to imply that the Respondent condoned the infraction as there is
justification for it. There was the involvement
of the SAPS in the
matter conducting their own investigations; the Respondent’s
first investigating officer also resigned
from the employ of the
Respondent. Also, this is not a normal run of the mill case an it
warranted thorough investigations. I am
therefore satisfied with the
reasons the Respondent advanced for the deal in laying charges
against the applicant. It is my finding,
therefore, that the
dismissal of the applicant was procedurally and substantively fair.
The dismissal of the applicant stands as
I do not have any reason to
disturb the Respondent’s finding as well as penalty imposed.
…
The
applicant’s conduct has irretrievably damaged the relationship
of trust which is the hallmark of any employment relationship.’
(sic)
Grounds of review
The applicant’s grounds of review can be summarised as
follows:
The conclusion reached by the commissioner was not justifiable
based on the evidence led at the arbitration hearing; and
The commissioner erred in concluding that the applicant’s
dismissal was procedurally fair given that the Applicant was
subjected to “a separate interrogation” and the
inordinate delay in taking disciplinary action against him.
Evaluation
In terms of section 192(2) of the Labour Relations Act, the employer
bears the onus to prove that a dismissal is fair. The employer
is
entitled to an award in its favour if the balance of probabilities
favours it. However, if an inference on the probabilities
can be
made equally in favour of both parties, the employer would not have
discharged the onus of proof and the dismissal will
not be found to
be fair.
An arbitration award stands to be set aside only if the award is
unsupported by any evidence, is based on speculation, is
disconnected
from the evidence or is made without appropriate
consideration of evidence that may be considered unreasonable.
6
Evidence linking applicant to fraud
The commissioner found, on a balance of probabilities, that the
evidence presented at the arbitration favoured the Post Office’s
version that the applicant had participated in committing fraud. The
evidence he relied on for his conclusion is that Mr Makgolo
had
pointed out the applicant and that documents implicating the
applicant were found in his office a few days after his arrest.
Mr Makgolo neither testified at the disciplinary hearing nor at the
arbitration because he was not to be found. Instead, Mr Mnisi
testified that Mr Makgolo had pointed out the applicant through the
glass window of the Menlyn Post Office on 29 March 2006 and
implicated the applicant by saying that the applicant had given him
the bankcard and R100 to withdraw money at the Kelvin Post
Office.
Mr Makgolo’s claim that the applicant was instrumental in the
fraud was not tested since it could not be subjected
to
cross-examination.
The “evidence” of Mr Makgolo has to be approached with
extreme caution on several grounds: the evidence was presented
through another witness; it is the evidence of a single witness; and
that of an alleged accomplice.
In
R v Mokoena,
7
the Court said
‘
The
uncorroborated evidence of a single competent and credible witness is
no doubt declared to be sufficient for conviction…
but in my
opinion that section should only be relied on where the evidence of
the single witness is clear and satisfactory in every
material
respect.’
In
Daniels v General Accident Insurance Co
Ltd,
8
the court discussed the application of the
cautionary rule relating to single witnesses in civil cases:
‘
It is
of course competent for a court to find in favour of a party on the
strength of the evidence of a single witness -…
Evidence Act
25 of 1965, provides that judgment may be given in any civil
proceedings on the evidence of any single competent and
credible
witness. In this…
although
there is apparently no 'cautionary rule' in civil cases as in
criminal matters where proof beyond reasonable doubt is required,
the
single witness, more particularly where he is one of the parties,
must be credible to the extent that his uncorroborated evidence
must
satisfy the Court that on the probabilities it is the truth.’
(my emphasis)
Accordingly, I am of the view that at least some caution ought to
have been exercised in this case.
Similar caution ought to apply where the evidence relied upon is
essentially that of an accomplice. Mr Makgolo, for the purposes
of
this matter, was a purported accomplice. The cautionary rule in
relation to accomplices was set out as follows in
S v Hlapezula
and Others:
9
‘
It is
well settled that the testimony of an accomplice requires particular
scrutiny because of the cumulative effect of the following
factors.
First, he is a self-confessed criminal. Second,
various
considerations may lead him falsely to implicate the accused, for
example, a desire to shield a culprit or, particularly
where he has
not been sentenced, the hope of clemency. Third, by reason of his
inside knowledge, he has a deceptive facility for
convincing
description – his only fiction been the substitution of the
accused for the culprit
.’
(my emphasis)
The commissioner took no such caution. He found that the mere
pointing out was sufficient to favour Mr Makgolo’s implication
of the applicant, through the testimony of Mr Mnisi, over the
applicant’s direct evidence denying that he had anything
to do
with the fraud. The commissioner not only failed to take any caution
in considering whether Mr Makgolo was truthful in
pointing out the
applicant but also lost sight of the fact that he relied on Mr
Mnisi’s account of Mr Makgolo’s version
for concluding
that the applicant was involved in the fraud.
The commissioner goes further to state that the applicant provided
no reasonable explanation why Mr Makgolo pointed out only
him. This
is not fair to the applicant. With no opportunity to cross-examine
Mr Makgolo, the applicant could only venture an
explanation. It
appears as if the commissioner had shifted the evidentiary burden,
if not the onus of proof, to the applicant
when the grounds for
doing the former were not convincing. Thus, instead of treating Mr
Makgolo’s ‘evidence’
with caution, the
commissioner cast aspersions on the applicant’s failure to
explain why Mr Makgolo had pointed out only
him.
The commissioner placed strong emphasis on “documents related
to the fraud account” being found in the applicant’s
office because “[t]his cannot be regarded as a mere
coincidence and a simple congruent of events”. There was no
coincidence in the documents being in the applicant’s office.
Even though the commissioner recorded the testimony of both
Mr Mnisi
and the applicant that the applicant had presented the documents to
the police on 29 March 2006, he completely ignored
this evidence.
Additionally, he failed to apply his mind to a crucial piece of
evidence: the note drafted by the applicant on
27 March 2006
recording the events of that day including that he had contacted Ms
Lombard. There was no evidence before the commissioner
to challenge
the applicant’s version that the note was drafted immediately
after his discussion with Ms Lombard and as
such amounted to a
contemporaneous account of what had occurred.
The existence of the documents, and the note in particular, support
the applicant’s version of events. The commissioner
failed to
consider the applicant’s evidence that he had produced the
documents in the presence of Mr Mnisi and the police
and had then
left the documents in this office on 29 March 2006.
Escalation of the matter
The applicant contends that he contacted Ms Lombard at Postbank in
Bloemfontein and that she allocated him reference number 121.
The
Post Office presented the evidence of Ms Segalo, a colleague of Ms
Lombard. Ms Segalo testified that the number “121”
had
been allocated to her as an authorisation number and therefore Ms
Lombard could not have furnished the applicant with the
same number.
The applicant relies on the note he had drafted on 27 March 2006 and
on a record of telephone calls made from Menlyn Post Office
on that
day. The telephone records indicate that at least three calls were
made to Bloemfontein on 27 March 2006. One call lasted
for a little
over eleven minutes.
10
The commissioner appears not to have applied his mind to this
evidence at all.
The commissioner found that the applicant’s averments that he
had called Bloemfontein and spoken to Ms Lombard are ‘without
merit and were not substantiated in any manner whatsoever.’
11
He relied on Ms Segalo’s evidence to conclude that the
applicant could not have called Ms Lombard on 27 March 2006 but
ignored the evidence referred to above that phone calls were made to
Bloemfontein on 27 March 2006 from the Menlyn Post Office
and that
Ms Lombard did not testify.
According to the Post Office, Ms Lombard did not testify at the
arbitration due to medical reasons. The arbitration record
12
indicates only a vague assertion that Ms Lombard could not testify
due to medical reasons. No details are given about the nature
or
extent of Ms Lombard’s condition or any attempt to present her
testimony. Instead, the Post Office relies on a document
it purports
is an affidavit sworn to by Ms Lombard. The probative value of this
document is highly questionable for several reasons,
foremost of
which is that a commissioner of oaths did not sign it. While Mr
Oosthuizen’s details appear as that of the
commissioner of
oaths, the document still had to be considered cautiously because Mr
Oosthuizen himself is the source of much
of the information
contained in the ‘affidavit’. Of even greater concern is
the nature and contents of the document.
Ms Lombard signed the
document on 11 December 2007. According to the document, Mr
Oosthuizen questioned her on 20 November 2007
about the incident of
27 March 2006. The statement vacillates between a failure to
remember and apparent certainty on her part:
‘
I
declare that I can’t remember talking to the Branch Manager
Menyn on 27 March 2006 and that I can’t recall anything
regarding this matter.
I can also not remember that I
told the Branch Manager, Menlyn to destroy the card and I can’t
remember that I gave him any
file number and this is not recorded at
out section.
I was not informed by the Branch
Manager that a client visited his office on 27 March 2006 with the
card and that the cardholder
attempted to withdrew an amount of R
9000.00 and that the client run away when the Brach manager seemingly
phoned me.
I will never under such
circumstances request a Branch Manager to destroy a card as we all
are aware that we should instruct the
person who call to rather keep
the card and passport/identity document as evidence.
I did not record the incident as
this is the first time that I was made aware of the concerns with
regard to the account was when
Mr Oosthuizen informed me on 20
November 2007.
I confirm that I never had an
enquiry relating to this incident and that I never spoke to the
Branch Manager Menlyn regarding this
matter.’
13
(sic)
The statement, besides being contradictory in that Ms Lombard first
states that she could not remember the incident but then
confirms
with some certainty that the applicant had not spoken to her, is of
grave concern because,
inter alia,
Ms Lombard was not
approached until more than one and half years after the incident.
The inordinate delay in investigating the
applicant’s version
that he had contacted Ms Lombard on 27 March 2006 supports Ms
Lombard’s statement that she “can’t
recall
anything regarding this matter.” While the commissioner
appears not to have any regard for this document, the Post
Office
relies on it to challenge the applicant’s version.
Faced with the direct testimony of the applicant and corroborated
with his contemporaneous note and the indirect testimony of
Ms
Segalo, the commissioner made conclusions without considering
evidence that may be considered unreasonable.
Inconsistent disciplinary action
In light of the above, it is not imperative to make a finding on
whether the Post Office had taken disciplinary action against
the
applicant in an inconsistent manner. This is further complicated by
the fact that it is not clear exactly for which charge
or charges
the applicant was dismissed.
If the applicant were dismissed for negligence, the Post Office
would have acted inconsistently by failing to take any disciplinary
action against other employees who had participated in opening the
account; issuing a new bankcard; and processing withdrawal
transactions. Based on the facts of this matter, I am not able to
draw that conclusion with confidence. Still, the Post Office’s
contention that others had acted in good faith even though, in my
view, they may also have acted negligently, is telling in the
manner
the Post Office investigated the matter and decided to take
disciplinary action solely against the applicant.
The issue of consistency is relevant in another context too: if the
evidence led at the arbitration proceedings was not such
that a
reasonable decision maker would have concluded that the applicant
was involved in the fraud, the applicant’s conduct
would not
be distinguishable from the conduct of other employees. In other
words, the only issues that distinguish the applicant
from other
employees are the pointing out; his alleged failure to escalate the
matter; and the documents being found in his office.
I have already
addressed these issues, the latter of which, in my view, ought to
have absolved him.
Delay in instituting disciplinary action
The Post Office argues that the commissioner had dealt with this
issue comprehensively in his award. This is not so. The brief
sequence of events relevant to the delay is the following: the
applicant was arrested on 29 March 2006. After being released
on
bail, he took annual leave and returned to work. The applicant
responded to a questionnaire that the Post Office gave him
during
June 2006. The criminal case against the applicant was withdrawn on
20 October 2006. The applicant was not suspended during
this time
and continued working for the Post Office. The applicant was
rearrested on 9 February 2007 and, once again, released
on bail. The
applicant was first suspended on 12 February 2007. The criminal
charges against the applicant were withdrawn for
second time on 27
September 2007. The applicant reported for work during the beginning
of October 2007 but was told to go home.
The Post Office interviewed
the applicant during late November 2007. It is unclear exactly when
Mr Marais started the initial
investigation or when he resigned from
the employ of the Post Office. However, it appears as if the Post
Office must have started
its investigations as early as during June
2006.
14
Nevertheless, because Mr Marais resigned, the investigation was
handed over to Mr Oosthuizen. He completed his investigation
on 19
December 2007. Yet, the Post Office only took disciplinary action
against the applicant on 21 October 2008!
The Post Office’s reasons for the delay (and the
commissioner’s acceptance of the reasons), namely, the
involvement
of the police, the original investigating officer
resigning and the complexity of the case, are feeble. I have already
indicated
above that it is not clear when the initial investigator
started investigating the case and when he had resigned. However, Mr
Oosthuizen managed to investigate the matter from October to
December 2007. No explanation is given for the delay even though
the
Post Office had asked the applicant to respond to a questionnaire
during June 2006 and required him to attend an interview
during
November 2007. Mr Oosthuizen, whilst testifying at the arbitration,
cannot explain why the Post Office only took disciplinary
action
against the applicant during October 2008 when he had completed his
investigation during December 2007.
15
Similarly, the role of the police in delaying the matter is
unsubstantiated. The applicant was first arrested on 29 March 2006.
The charges against him were first withdrawn in October 2006. The
applicant was not suspended and continued working for the Post
Office during this time. He was rearrested during February 2007 and
only then did the Post Office suspend the applicant. The
criminal
charges against the applicant were again withdrawn during September
2007. There is simply no explanation offered how
the role of the
police justified the Post Office taking disciplinary action against
the applicant after so long. Mr Oosthuizen
testified that the Post
Office’s management had made a decision regarding the delay
and that “they waited for the
SAPS”.
16
Since the criminal charges had already been withdrawn for the second
time during September 2007, the involvement of the police
cannot be
a valid reason to delay the matter for more than a year.
The Post Office’s own disciplinary procedure states that
disciplinary action must be taken even if the transgression is
referred to a court of law. Mr Oosthuizen conceded during
cross-examination in the arbitration that the Post Office “can
continue with their case, even if there is a court case hanging”.
17
The Post Office argued that the case was complex. The commissioner
found likewise:
‘
Also
this is not a normal run of the mill case an it warranted thorough
investigations.’
18
Neither the Post Office nor the commissioner set out the supposed
complexities of the case to warrant a delay of over two years
in
instituting disciplinary action against the applicant. Mr Oosthuizen,
after all, completed the investigation in less than three
months.
Moreover, no new or material evidence was presented at the
disciplinary hearing or the arbitration that arose because of
the
‘thorough’ investigation conducted.
The commissioner did not heed any of the above evidence in accepting
the reasons for the delay. Likewise, the commissioner paid
scant
regard to the fact that the applicant continued working for the Post
Office from soon after his release during June 2006
until he was
arrested a second time in February 2007 when considering that the
trust relationship had broken down irretrievably.
While he was
suspended during February 2007, the applicant continued as an
employee of the Post Office and was only charged during
October
2008.
The Post Office argued that it had not waived its right to take
disciplinary action against the applicant. There is some merit
in
the argument that when considering a case where the allegations of
misconduct are particularly serious, waiver ought not to
be easily
assumed. Still, the Post Office provided no cogent explanation for
the delay of almost one year in suspending the applicant
and then a
delay of more than another year before taking disciplinary steps.
The Labour Appeal Court, in
Maluti Transport Corporation Ltd v
Manufacturing Retail Transport and Allied Workers Union
,
19
addressed the issue of estoppel by election in the labour law
context (albeit in the context of a strike ultimatum) and said
that
two basic requirements are to be met to retract an earlier election:
a good reason and timeous notice. The Post Office gave
no reason,
let alone a good one, for taking disciplinary action against him so
long after the incident.
Even if it cannot be said that the Post Office had waived its right
to take disciplinary action against the applicant, I am satisfied
that the long delay was not fair. In
Union of Pretoria Municipal
Workers and Another v Stadsraad van Pretoria
,
20
the employer took about a year and one month to commence
disciplinary action against an employee. The employer’s policy
not to take disciplinary steps against an employee who had been
charged criminally until the criminal prosecution was finalised
was
found not to be a valid reason for the delay. The court further
concluded that while “delay is not, by itself, waiver”
and even where waiver is not claimed or does not apply, “fairness,
however, dictates that disciplinary steps must be taken
promptly.”
21
The passages quoted below are startlingly apt:
‘
The
reason for the enquiry to be held promptly is discussed by Cameron
‘The Right to a Hearing before Dismissal – Part
One’
(1986) ILJ 183 at 200:
“
But
promptness, even short of the waiver or deemed waiver by the
employer, is essential to ensure that the employee can present
his
case effectively since delay can lead to inadequate recall on the
part of the employee or to the unavailability of his witnesses.
Moreover, undue delay between the occurrence of the alleged
misconduct in the employers’ disciplinary response blurs the
impact of corrective discipline. From the employer's point of view
promptness is necessary for the additional reasons that dispatch
of a
disciplinary matter allows his enterprise to move forward unhampered
by the anxieties, animosities and uncertainties which
pending action
may produce.”
The correctness of Cameron's
comments are demonstrated by the facts of this case. Witnesses were
unable, because of the lapse of
time, to recall the details of
certain events which have an important bearing… The applicant
continued to perform his duties
for more than two years after the
misconduct. How can it be said that his misconduct rendered the
continued employment relationship
impossible? The alleged misconduct
in pending disciplinary hearing clearly caused anxiety animosity in
the workplace.
Was the inquiry held promptly
(timeously)? The enquiry commenced with the delivery of the charge,
namely 5 July 1990. It took 11
months to complete the enquiry. That
was caused by several factors including postponements at applicant’s
request. I therefore
disregard that period. The period between the
transgression and commencement of the enquiry was one year and one
month plus some
days. The inquiry would not have commenced promptly
unless there is some valid reason for the delay. An enquiry would
ordinarily
not be held promptly unless it is commenced within days,
or at the outside, a few weeks.
…
.
An employer may proceed with the
company to disciplinary enquiry despite the fact that the employee
has been charged criminally
with an offence arising from the same
incident or the police have launched criminal investigations (
Ncora
Irrigation Scheme and FAWU
(1992) 13 ILJ 718 (ARB),
Nyalunga v
P P Webb Construction
(1990) 11 ILJ 819 (IC) and the article
‘Criminal Trials and Disciplinary Inquiries’ in
Contemporary Labour Law vol
1 no 2 at 22).
The respondent, secondly,
delayed the commencement of the disciplinary enquiry after conclusion
of the criminal prosecution for
six months. The respondent gave no
reason for that delay. The disciplinary enquiry was, by reason of
that delay alone, not commenced
promptly.
The failure to convene an
enquiry promptly is in casu, even short of waiver or deemed waiver,
so grossly unfair that it vitiates
the decision to dismiss the
applicant.
In this case justice delayed is
justice denied….’
22
The delay in taking disciplinary action in the present case is even
more than that referred to in the above case. The applicant
was
charged with misconduct more than two years and six months after the
incident and about a year after the criminal charges
were withdrawn
for a second time. The disciplinary procedures expressly state that
discipline may be taken against employees
even where a criminal case
is pending. Mr Oosthuizen confirmed this in his testimony but said
that it was management decision.
The reasons given by management for
the delay are poor.
Other procedural issues raised on behalf of the applicant
The applicant also complains about the search of his office and the
“interrogation” sessions to which he was subjected.
These complaints, while understandable given the circumstances that
prevailed in this matter, are not sufficient to be regarded
as
inherently unfair. An employer is entitled to search its own
premises and to question its employees.
Conclusion
This Court is entitled to set aside an arbitration award if the
commissioner’s decision falls outside a band of decisions
to
which a reasonable person could come on the available evidence.
23
It is not the correctness of the commissioner’s decision that
is relevant but whether the result of the arbitration proceedings
is
reasonable. I find that the decision of the commissioner that the
Post Office had “succeeded in proving on a preponderance
of
probabilities that the dismissal of the applicant was fair –
procedurally and substantively” was not a reasonable
one on
the basis of the evidence available to him.
In the circumstances, I
find that the
conclusion reached by the commissioner
was not justifiable in relation to the evidence before him and that
the arbitration award
falls outside of a band of decisions to which
a reasonable person could come on the available evidence. The
application to review
and set aside the arbitration award,
accordingly, succeeds.
Relief claimed
In terms of the notice of motion, the applicant seeks the court to
review, correct and set aside the commissioner’s award
and to
remit the dispute to the Second Respondent. The Post Office argues
that because the applicant has not specifically asked
for the
commissioner’s award to be replaced, I am compelled to remit
the dispute to the Second Respondent if the review
is successful and
the award is set aside. I disagree for several reasons. First, the
notice of motion includes a prayer that
the court corrects the
award. Doing so, in my view, entails determining the dispute.
Second, the relief claimed includes a prayer
for further and/or
alternative relief. Third, section 145(4) of the LRA entitles the
court to determine the dispute in the manner
it considers
appropriate.
Aside from reasons cited above, I do not believe that justice and
fairness would be served if this dispute were remitted to the
Second
Respondent to be heard before a commissioner other than the third
Respondent. In determining whether or not to substitute
the award or
remit the dispute back to the CCMA for a hearing
de novo
,
considerations of fairness are paramount bearing in mind the record
of evidence available and whether there would be a purpose
in
remitting the matter back to the CCMA for re-hearing.
24
The LAC and this Court have held that a
decision should be substituted or corrected rather than be referred
back to the CCMA for
a hearing
de
novo
where:
the result is a foregone conclusion and it would merely be a waste
of time to order the CCMA to reconsider the matter;
where a further delay would cause unjustified prejudice to the
parties;
where the CCMA has exhibited such bias or incompetence that it
would be unfair to require the applicant to submit to the same
jurisdiction again; or
where the court is in as good a position as the CCMA to make the
decision itself.
25
In addition to these factors, it is material whether a full record
of the matter is available to the Court which places the Court
in a
position to apply its mind to the matter. In this matter, I am
satisfied that a full record is available and that the factors
under
, , and are present
. It is, therefore, not
appropriate that the matter be remitted back to the CCMA for
re-hearing.
Section 193(2) provides that the Court must require the employer to
reinstate or re-employ an employee whose dismissal is substantially
unfair unless the employee does not wish to reinstated or
re-employed; the circumstances surrounding the dismissal are such
that a continued employment relationship is intolerable; or it is
not reasonable practical for the employer to reinstate or re-employ
the employee. The applicant indicated in his referral of the dispute
to the CCMA that he seeks reinstatement.
26
The other factors do not apply. Accordingly, I consider
reinstatement, without any loss of remuneration and benefits to be
appropriate.
Costs
The court has a broad discretion, in terms of section 162 of the
LRA, to make an order for costs according to the requirements
of the
law and fairness. There are no reasons before me to suggest why
costs should not follow the result.
Order
Accordingly, I make the following order:
The arbitration award made by the third respondent under the
auspices of the second respondent under case number GATW 2543-09
dated 26 February 2010 is reviewed and set aside.
The dismissal of the applicant was substantively unfair.
The applicant is reinstated with retrospective effect.
The First Respondent is ordered to pay the costs of the applicant.
_______________________
Haffegee, AJ
Acting Judge of the Labour Court
APPEARANCES
For the Applicant: Advocate P Mokoena SC
Instructed by: Msinkinya Attorneys and Associcates
For the Third Respondent: Advocate A l Cook
Instructed by: Howes Inc. Attorneys
1
The
cheque, issued by the Compensation Commissioner in favour of Mr
Ackhurst, was intercepted while
en route
to Mr Ackhurst.
2
Due
to a change in the type of cards issued, cards no longer had to be
issued from Bloemfontein.
3
See
para 48 (the first of the two paras numbered 48) of the Award.
4
It
is not clear exactly when Mr Marias resigned.
5
Pages
102 -3 of the bundle of documents used at the arbitration.
6
See
A Myburgh ‘
Sidumo v Rusplats
:
How The Courts Deal With It’ (2009) 30 ILJ 1
.
7
1932
OPD 79
at 80.
8
1992
(1) SA 757
(C) at 759J-760C.
9
1965
(4) SA 439
(A) at 440D-F.
10
Page
83 of bundle of documents from the arbitration.
11
At
para 86 of the award.
12
At
page 310 of the transcript.
13
At
page 59 of the bundle of documents used at the arbitration
14
When
it asked the Applicant to respond to a questionnaire.
15
Transcript
at page 138.
16
Transcript
at page 138.
17
Transcript
at page 139.
18
At
para 88 of the Award.
19
(1999)
20 ILJ 2531 (LAC) at para 36.
20
(1992)
13 ILJ 1563 (IC)
21
Ibid
at 1568A and 1569A
22
Ibid
at 1569C – 1570E.
23
S
ee
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others)
[2007] 12 BLLR 1097
(CC)
.
24
S
ee
Gauteng Gambling Board v Silverstar
Development Ltd and Others
2005
(4) SA 67
(SCA) at para 28
.
25
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
[2009] 11 BLLR
1128(LC)
at para 33.
26
At
page 107 of the bundle of documents used at the arbitration.