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[2013] ZALCD 2
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Malek v Transnet Bargaining Council and Others (D32/10) [2013] ZALCD 2 (31 January 2013)
13
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, AT DURBAN
JUDGMENT
Case No: D32/10
In the matter between:-
DEVANAND MALEK
.......................................................................................
Applicant
and
TRANSNET BARGAINING COUNCIL
................................................
First
Respondent
MUHAMMED DOLLIE N.O.
...........................................................
Second
Respondent
TRANSNET LIMITED t/a TRANSNET
RAIL ENGINEERING
.........................................................................
Third
Respondent
Heard
: 2 May 2012
Delivered
: 31 January 2013.
Summary
:
Compromise - in the
absence of an express or implied reservation of the right to proceed
on the original cause of action, an agreement
of compromise bars the
bringing of legal proceedings based on such original cause of action
even in unfair labour practice matters.
Review of an award
unsuccessful.
JUDGMENT
CELE J
Introduction
[1] In the absence of an express or implied reservation of the right
to proceed on the original cause of action, an agreement of
compromise bars the bringing of proceedings based on such original
cause of action. To what extent a party may dispute a signature
alleged to be his, on that alleged written agreement, forms the gist
of the issues at the heart of this application. The arbitration
award
dated 11 December 2009 issued by the second respondent under the
auspices of the first respondent, holding the applicant
to an
agreement of compromise, is sought to be reviewed and set aside in
terms of section 158 (1) (g) of the Act
1
.
The third respondent in whose favour the award was issued opposed the
review application, in its capacity as the erstwhile employer
of the
applicant.
Factual background
[2] The applicant commenced employment with the third respondent or
the company in 1981. In May 2005 he held the position of National
Customer Service Manager [NCSM] which was a level 110 position,
reporting to Mr Richard Mosia. The General Manager Operations was
Mr
Frederick Potgieter and Mr Vuyo Matsam was the General Manager HC. He
had to work closely with Ms Lynette Mangozha, the National
Marketing
Manager Coach Business and had to submit to her such of the documents
as included monthly projected sales plans, various
projects and such
information relating to marketing functions as she could require of
him.
[3] Sometime around August 2005 the company considered the positions
of a number of its Customer Service Managers who held level
positions
110 as the applicant did and it promoted them to level 109 but with
the exclusion of the applicant. He wanted to know
why he had not been
promoted, contending that up until then he had a clean record and
positive remarks. He drafted a letter dated
08 June 2006 as if it was
written by Mr Mosia, recommending his promotion to level 109 and
forwarded it, by email to Mr Potgieter
and Mr Matsam. Mr Mosia denied
having prior known and having agreed to the drafting of the letter,
when he was confronted by Mr
Potgieter. The applicant was informed
that Mr Mosia was distancing himself from any knowledge or
association with that letter,
the clear implication of which was that
the applicant undermined his supervisor by bypassing hierarchical
communications in seeking
a promotion. The applicant became so
stressed and strained by the developments on the issue that on one
day he considered himself
unable to continue with his duties. He left
the office, leaving his laptop behind and drove to his residence from
which he was
later that evening, hospitalised for some days.
[4] It was still in June 2006 that he returned to work. He then
reported that 10 of the 12 projects he had worked on and had
completed,
had been deleted from his laptop computer which he had
left at his workplace during his sick leave. At some stage Mr Mosia
sought
to discipline the applicant by suspending him from duty for
the promotional letter of 8 June 2006 but the company uplifted that
suspension after it had investigated the matter and a decision was
taken to rather discipline Mr Mosia. The applicant testified
in that
hearing. Mr Mosia was found guilty and a 6 months written warning was
given to him.
[5] The applicant considered that he had not been fairly treated as
he was not promoted to level 109 Manager. When continuous discussions
with superiors did not produce the results he desired, he lodged a
grievance which the company failed to resolve. He later referred
an
unfair labour practice dispute relating to promotion to the first
respondent for conciliation. The dispute was not capable of
a
resolution.
[6] The dispute was referred to arbitration, at which hearing the
company produced a written document headed: “Letter of
Reprimand”. The company
led evidence of its witnesses who testified that:
the file with 12 projects was never received by Ms Mangozha who said
she only received by e-mail the sales plan which was also
not
completed and needed to be redone.
Ms Mangozha did not receive from the applicant any other information
that had been recorded on the document dated 14 September
2006.
There were several meetings held by the company with the applicant
to urge him to complete his projects. The final meeting was
said to
have been held on 27 October 2006 where the applicant was
represented by the union officials, Messrs Mafikizolo and Meyer,
while Mr Brown was assisting Mr Meyer as his secretary.
At some stage of the meeting the proceedings were halted to allow
the applicant and the union officials to have a causus meeting.
The meeting ended with a letter of repremand being drafted and
signed by four people present at that meeting, including the
applicant.
[7] The evidence of the applicant amounted to a total denial that he
had not completed the projects given to him. He denied having
signed
the letter of repremand on the basis that there would be no need for
him to accede to being reprimanded. He denied that
the signature
appearing in the letter of reprimand was his. Accordingly the
applicant denied having signed an agreement of compromise,
which
would have been an acknowledgment that he had yet to meet
requirements for a promotion to a level 109 manager.
[8] The arbitrator hearing that matter, Mr Stapelberg found that the
probabilities favoured the applicant`s version and he ordered
the
company to promote him with retrospective effect. The company applied
for the reviewing and setting aside of that arbitration
award. It
also preferred two charges of gross dishonesty against the applicant
in the following terms:
In that he, in his capacity as a Profit Centre Manager with intent
to mislead the arbitration hearing held on 8 August and 15-16
September 2008, denied any knowledge of the contents of the letter
of non-performance, referred to as annexure E1 and further
stated
that the signature that he endorsed above the name “D Malek”
was not his.
In that, again with intent to advance his personal interest at the
expense of that of the company, he told the said arbitration
proceedings held on 8 August and 15-16 September 2008 that he sent
the file with the 12 projects to Lynette Mangozha.
[9] After some delay in the matter not being heard, a pre-dismissal
arbitration hearing presided over by the second respondent,
began in
earnest. The company called and led the evidence of 5 witnesses while
the applicant was the only witness for his case.
The applicant was
acquitted on the second charge for lack of sufficient evidence but
was found to have committed the first charge.
The second respondent
considered the transgression to have been of such serious nature that
he ordered the dismissal of the applicant
with immediate effect. In
the meantime this court dismissed the review application filed by the
third respondent. The applicant
initiated the present review
proceedings.
Chief findings of the second respondent
[10] In the absence of a counter review application, evidence on the
second count has become irrelevant for purposes of this application
as the applicant was acquitted of it. The findings of the second
respondent are, inter alia that:
It was clear that the applicant had denied knowledge of his
signature in respect of the letter of 27 October 2006 at the unfair
labour practice arbitration.
There was evidence of two witnesses that the applicant was present
in the meeting of 27 October 2006 and had signed the letter
of
reprimand. Their versions accorded with each other in a fair amount
of detail to be considered consistent.
The case that the applicant advanced was that:
He could not recall signing the document;
He was very upset on the day and therefore could not
recall signing the letter of reprimand;
He did not sign the document and
There was no reason for him to sign the document.
The applicant’s allegation that the reprimand was not
necessary and therefore was not signed was without basis. There was
no evidence to suggest that the reprimand was necessary. That was
the applicant’s version which fell to be rejected.
The effect of the applicant’s denial on the previous
arbitration award was not within the scope of the pre-dismissal
arbitration to determine. The award was being reviewed and it could
not be determined with certainty to what extent the arbitrator
in
that matter had relied on the evidence of the third respondent in
respect of the unfair labour practice. Whether the denial
of the
signature was indeed a material fact in that case was not necessary
to consider. It was the applicant’s action,
in denying with
intent to mislead the arbitration, that was critical. There was no
doubt that the applicant intended to mislead
that arbitration in
denying that the signature was indeed his.
The most telling evidence in this instance was that of Mr Greenfield
who stated that it was quite possible for an employee to
forget
signing a document, alternatively would not want to admit that he
signed a document which would have had an adverse effect
on his
case, however a person who sees his signature would recognise it.
In considering whether the applicant was guilty of dishonesty, the
rule on dishonesty was reasonable. Employees were bound to
conduct
themselves in a manner that was honest and ethical. It was
furthermore, trite that employees would be aware of such a
rule and
should stand by the courage of their conviction and be honest with
their employer.
It was clear that the applicant, as reflected in the record of the
previous arbitration hearing, denied outright signing the
document.
There was evidence that that document was handed to him and to his
representative and that both had time to consider
it and therefore
it could be concluded that he breached the company rule of not being
honest.
The applicant’s argument that other employees had done the
same or worse cannot be considered as there was no evidence
to
support it and the issue appeared to be an afterthought in his
testimony. By all accounts the rule appeared to have been
consistently applied.
When action is taken against an employee in respect of which
warnings are issued, the employer is attempting to correct such
behaviour and to give such employee an opportunity to mend his ways.
Actions are taken for very specific purposes which might
be reduced
to writing for confirmation. The onus rests on the employer to
prove, where necessary, that it has acted consistently.
In the event
of an employee disputing having signed a written warning, the
employer would have to lead evidence on the issue.
It was therefore unconscionable for a senior manager, in the
presence of his employer, the HR Manager and two representatives
to
deny that he had signed a document that was presented to him. To
maintain that denial, even at the late stage did not bode
well for
the employee. To have the employer present expert evidence in
respect of the document that two witnesses said he signed
and the
circumstances that confirm that he was at the meeting, to have the
employer go through all of the cost and expense, based
on his
denial, was particularly aggravating. The employer was justified in
arguing that such an employee could not be trusted.
The level of the employee as a manager and the level of dishonesty
that was displayed had to be taken into account in determining
whether a future employment relationship was indeed tolerable. No
doubt the relationship with the organisation had been severely
damaged.
Grounds for review
[11] The applicant outlined a number of the grounds for review in his
founding affidavit and in the supplementary affidavit. There
is
substantial overlap between them, as correctly pointed out by counsel
for the third respondent. The applicant identified evidence
and a
number of factors which according to him were essential but were
either ignored or down played by the second respondent.
His grounds
include submissions that the second respondent committed misconduct
and/or a gross irregularity and/or exceeded his
powers in that:
In finding that there was no evidence to suggest that the reprimand
was not necessary, he failed to take into account verbal
and
documentary evidence placed before him, including that:
There were praises by the applicant’s supervisors confirming
that he knew his work well;
He was asked to assist the other managers in their duties;
Mr Potgieter had advised him that he would soon be promoted;
The fact that he had an unblemished record of 25 years until the
dispute arose regarding the letter recommending his promotion
and
then his performance allegedly just became intolerable;
The testimony of Messrs Meyer, Fikizolo and Mosia all confirming
that the projects had been completed. If the projects were completed
there would be no reason for the applicant to be reprimanded.
He failed to consider mitigating factors showing that the
applicant’s belief that he had not signed the document was
reasonable under the circumstances and was due to the belief that he
had not underperformed in any way and therefore it was not
an
intentional lie with the intent to mislead the arbitration;
In finding that the applicant intended to mislead the arbitration,
the second respondent failed to properly consider the handwriting
expert. He omitted to include in his summary the evidence of Mr
Greenfield that it was reasonable for someone to deny having
signed
a document if it had been a long time ago, as forgetfulness, memory
trickery and time all play a role when uncertain about
a signature.
Mr Greenfield accepted and could not dispute the applicant’s
version that he did not recall having signed
the document, which
should have cast severe doubt on the second respondent that the
applicant was intentionally dishonest;
There were suspicious circumstances surrounding the meeting
allegedly held on 27 October 2006, a day on which his projects were
produced;
In finding that the rule was consistently applied the second
respondent failed to properly consider the evidence that other
employees in similar positions had not faced pre-dismissal
arbitration hearings and that Mr Mosia had blatantly lied to his
superiors about the letter but he was only reprimanded with a six
months warning notwithstanding him occupying a position higher
than
that of the applicant. The third respondent had failed to discharge
the onus of proving consistency in matters of dishonesty
in its
workplace, especially with regards to the sanctions imposed.
Grounds in opposition to the review application
[12] The third respondent contends that the review application is in
every sense an appeal under the guise of a review. What the
applicant
is said to have done was to provide court with a subjective and
inaccurate summary of both the evidence at arbitration
and the import
of the commissioner’s award. The submission is that the award
is immune from a challenge on review. The submission
goes on to say
that the applicant at no stage introduced cogent and reliable
evidence to say that he did not commit any wrong doing.
On the
contrary he changed his evidence from saying he did not sign the
document to saying he did not recall signing it, in an
apparent
afterthought upon the production of the document and as a consequence
of the opinion of his handwriting expert. The contention
is that,
even in the event court finds against any of the commissioner’s
findings of law and fact, it will not follow that
the award is to be
set aside on review, as the result of the arbitration proceedings was
eminently reasonable and unassailable.
Specific submissions of the
applicant were then individually disputed.
Evaluation
[13] In setting out the standard of review, the court in
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
2
stated that:
‘
The
standard of review
[105] .........
[106] The
Carephone
test,
which was substantive and involved greater scrutiny that the
rationality test set out in
Pharmaceutical Manufacturers
, was
formulated on the basis of the wording of the administrative justice
provisions of the Constitution at the time, more particularly,
that
an award must be justifiable in relation to the reasons given for it.
Section 33(1) of the Constitution presently states that
everyone has
the right to administrative action that is lawful, reasonable and
procedurally fair. The reasonableness standard should
now suffuse
section 145 of the LRA.
[107] The reasonableness
standard was dealt with in
Bato Star
. In the context of
section 6(2) (h) of PAJA 3 of 2000, O`Regan J said the following
:”(A) n administrative decision will
be reviewable if, in Lord
Cooke`s words, it is one that a reasonable decision-maker could not
reach”.
[108] This Court recognised that
scrutiny of a decision based on
reasonableness introduced a
substantive ingredient into review
proceedings. In judging a
decision for reasonableness, it is often
impossible to separate the
merits from scrutiny. However, the
distinction between appeals and
reviews continues to be significant.
[109] Review for reasonableness,
as explained by Professor Hoexter, does threaten the distinction
between review and appeal. The
Labour Court in reviewing the awards
of commissioners inevitably deals with the merits of the matter. This
does tend to blur the
distinction between appeal and review. She
points out that it does so in the limited sense that it necessarily
entails scrutiny
of the merits of administrative decisions. She
states that the danger lies, not in careful scrutiny, but in
“judicial overzealousness
in setting aside administrative
decisions that do not coincide with the judge`s own opinions.”This
court in
Bato Star
recognised that
danger. A judge`s task is to ensure that the decisions taken by
administrative agencies fall within the bounds of
reasonableness as
required by the Constitution
.’
[14] The award being assailed is of a bargaining council and its
review is permissible in terms of section 158(1) (g) of the Act
which
states that:
‘
The
Labour Court may subject to section 145, review the performance
or purported performance of any
function provided for in this Act on
any grounds that are permissible
in law
.’
[15] Section 145 of the Act, as referred to in section 158 (1) (g),
has now been suffused by the constitutional standard of
reasonableness.
That standard is whether the decision reached by the
commissioner is one that a reasonable decision maker could not
reach
3
.
In judging the decision of the second respondent for reasonableness,
it will be impossible to separate the merits from scrutiny.
However,
the distinction between an appeal and a review will continue to be of
significance.
[16] It remained common cause between the parties that certain
documents relevant to this matter disappeared mysteriously and were
not timeously available for the first arbitration hearing. One such
document was what the parties have referred to as the letter
of
reprimand allegedly executed on 27 October 2006. Until it is
challenged, it purports to be an agreement of compromise.
[17] In civil proceedings, in the absence of an express or implied
reservation of the right to proceed on the original cause of
action,
an agreement of compromise bars the bringing of legal proceedings
based on such original cause of action
4
.
There is no legal basis why this principle of law should not hold
good, where appropriate, in labour disputes. Accordingly, I
hold that
but for the challenge on the authenticity of the letter of reprimand,
the applicant would in law, be debarred from referring
an unfair
labour practice dispute in circumstances where he would have
compromised any of his rights to a promotion. Like novation,
a
compromise is a substantive contract which has an independent
existence from the cause which gave rise to the compromise. It
can
therefore be enforced without the necessity of proving a prior cause
of action or establishing a legal right pre-existing the
compromise
5
.
[18] As correctly submitted by Mr Hulley for the third respondent, by
attacking the authenticity of the letter of reprimand, the
applicant
stands a chance of attaining the very right on promotion which the
parties had by their signatures, (for a moment assuming
their
authenticity), acknowledged and agreed he would not be entitled to.
The issue of whether he had been reprimanded would accordingly
fall
outside the scope of the probe of the honesty of his denial of the
contested signature, with the exception to show his bona
fides when
he denied the authenticity of his signature.
The contested signature on the letter of reprimand
[19] From the beginning of the first arbitration hearing, almost
until its end, the letter of reprimand was nowhere to be found.
The
applicant took an uncompromising position in denying having signed
any such letter. Until its production, witnesses of the
third
respondent were testifying about a document allegedly signed by the
applicant which was not before the commissioner. At the
second
arbitration hearing the applicant took the position that he had no
memory of having signed the letter of reprimand. In his
founding
affidavit the applicant stuck to the version that he could not
remember signing the document and therefore that if he
did, his
denial at the first arbitration hearing was bona fide. In his
supplementary affidavit and in the supplementary heads of
argument
the applicant has gone back to the original position of distancing
himself from the signature on the document. The lack
of memory is
then the alternative position, in the event it is found that the
signature purporting to be his is genuine. What could
have been a
simple matter has accordingly become compounded and voluminous,
necessitating a protracted reading of the record. Separating
the
merits from scrutiny became impossible.
[20] The evidence of Mr Greenfield is crucial in this matter. He was
an independent and unbiased witness who had no personal interest
in
the matter. His evidence was that he entertained no doubt that the
contested signature was of the applicant. A handwriting expert
instructed on behalf of the applicant came to the same conclusion. Mr
Greenfield’s evidence at page 97 of the transcript,
the typed
page is 36, includes the following:
‘
Ms
Ndlovu
Now
you have testified that your opinion was based on a
copy? ... Initially, yes. I
formed an opinion, but I had to qualify it because I hadn’t
seen the original document. Mr Chairman,
I ...[indistinct] a very
important point forward. The spontaneity of the writing is the
biggest individual characteristic if that
person writes spontaneously
normally. If the signature lacks the spontaneity of the genuine
signatures that is very indicative
that it wasn’t written by
that particular person. But the line detail of a copy is not clear, a
photocopy, it’s made
up of toner or whatever and you can’t
see detail. Hence my notation in my report of the limitation. However
later I was able
to see the original and under a microscope I could
see the fluency of the line of that signature. There was no
indication of hesitation
tremor that comes with say a person who is
trying to trace a signature where the line is a solid line and not a
fluency moving
line that varies in pressure....But having seen the
original I was quite happy to underline my opinion as to
authenticity
.’
[21] The second respondent then asked him about the circumstances
under which a person who signed a document could forget having
done
so. Caution need to be exercised in this respect as the witness is
not an expert on matters of brainwork. At page 102 of the
transcript
Mr Greenfield is recorded as having said:
‘
Then
there is a specific document and on a specific document there
are four signatures you know.
And what was the first, second and
third and fourth signature, we
don’t know. I don’t know. However if
the document required four
signatures and one of them is Mr Malek, I
don’t think he would have
forgotten. I mean my own view on this is
that he signed the thing. I
don’t think this is one of those glibly written
signatures on a document that
was unimportant, it’s important”
.
[22] There is no evidence of the applicant which had any significant
challenge of the expert witness, which incidentally was confirmed
by
an expert instructed at his instance. On the evidence before me, the
second respondent had to find that the applicant executed
the
disputed signature. In that respect, he committed no defect as
defined in section 145 of the Act.
[23] The final probe turns on the bona fides of the applicant in
denying his signature. There was only one version presented at
arbitration of when the applicant appended his signature on the
document. The applicant was, understandingly hamstrung by the defense
he relied on to propose any other occasion when he could have
executed that signature. While the nitpicking of discrepancies in
the
case of the third respondent may be justified, in my view, it will
not disturb the overwhelming probabilities in favour of
the third
respondent’s case. That nitpicking amounts to no more than
listing the grounds of appeal as opposed to those of
review.
[24] The approach I have adopted in this matter makes unnecessary
therefore that each and every so called ground of review should
be
individually dealt with. Suffice to say that none of the review
grounds is meritorious, including one on consistency of the
sanction,
which was clearly an afterthought. The applicant signed the contested
document with full knowledge and understanding
of what he was about.
He compromised his position to a promotion with the hope that he
would improve his position to the point
that he would be promoted.
Interestingly enough, there is a similar instance where he again
compromised his position in order to
qualify for a bonus which he
realised his peers had been given to his exclusion. His performance
was found wanting. To get the
bonus, he had to make certain
concessions. While it is not necessary to examine the circumstances
under which the applicant compromised
his position on promotion,
curiosity makes one wonder why, in the first place, he left the
laptop, as opposed to the desktop, behind
when the walls of his
office crumbled on him. He remembers locking the office and driving
away home. The normal action was to take
the laptop away with him, in
which instance there would be no allegations of the projects having
been deleted.
[25] In the circumstances, the following order will issue:
The review application in this matter is dismissed.
No costs order is made.
_______________
Cele J.
Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT: Adv K Allen
Instructed by Henwood Britter & Caney
FOR THE RESPONDENT: Adv. G I Hulley with Adv. T Manchu
Instructed by Maserumule Inc.
1
The
Labour Relations Act No 66 of 1995
.
2
[
2007]
12 BLLR 1097
(CC) at para 106 to 109.
3
See
paragraph 110 in the Sidumo decision.
4
See
Mothle v Mathole
1951 (1) SA 785
(T) and Jonathan v Haggie Rand Wire
Ltd and Another
1978 (2) SA 34
(N).
5
See
Jonathan case pages 38E to 38A.