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[2013] ZALCD 14
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Hadebe v La Farge Industries (Pty) Ltd and Others (D407/11) [2013] ZALCD 14 (31 May 2013)
23
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
DURBAN
JUDGMENT
Not Reportable
Case No: D407/11
In the matter between:
EWART HADEBE
........................................................................................
Applicant
and
LAFARGE INDUSTRIES
(PTY) LTD
.............................................
First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
.................................................................
Second
Respondent
G GERTANBACH
.........................................................................
Third
Respondent
Heard: 11 October 2012
Delivered: 31 May 2013
Summary: Review and
counter review applications – Commissioner alleged by both
parties to have misdirected himself in instances
where he found
against each party No misdirection found - distinction between
reviews and appeals to be observed.
_________________________________________________________________
JUDGMENT
CELE J
Introduction
[1] The arbitration
award dated 17 March 2011
issued by the third respondent as a Commissioner of the second
respondent is the subject of two review
applications. Both
applications are in terms of section 145 of the Act
1
.
The first application is by the applicant. He seeks to have the
arbitration award reviewed and set aside. The second is a counter
review application by the first respondent seeking an order that:
1.1. paragraphs 25, 29,
30 and 31 of the third respondent’s arbitration award be
reviewed and set aside;
1.2. that paragraph 25 of
the arbitration award be replaced with a finding that the applicant
was found guilty of the photocopying
charge and that he be dismissed
in respect of this charge;
1.3. that paragraphs 29,
30 and 31 of the Arbitration award be replaced with a finding that
the Commissioner exceeded his powers,
alternatively, that the first
respondent did not commit a procedural irregularity;
1.4. Alternatively,if the
Court finds that the Commissioner did not exceed his powers and that
there were procedural irregularities,
that these were not such as to
render the procedure as a whole unfair.
[2] There is opposition
to each application by the corresponding party.
The factual background
[3] The applicant was
employed by the first respondent hereafter referred to as the company
or the respondent on 1 September 2006
as its Account Manager at the
Richards Bay grinding plant until his dismissal on the 7 October
2010. He held a degree in chemical
engineering and a National Higher
Diploma in Business Management. His cost to company salary at the
time of the dismissal was R63261.29.
He was also entitled to a
certain share allocation valued at R470873.29 as at 19 April 2007. He
was head-hunted by the respondent
as part of its transformation
strategy and was its first Black Manager. The company had Ms B Sibiya
as its Dispatch Clerk, Ms T
Economou as an Administration Assistant
or Receptionist, the Human Resources (HR) Director was Ms Gwamanda
and the Financial Controller
was Mr. Buitendag.
[4] It was clear at work
that the employees were unhappy with the manner they were managed by
the applicant who was the most senior
personnel at the workplace. The
applicant was counselled by Ms Gwamanda and yet, despite the
counselling, the relationship did
not improve and the respondent
decided to engage the applicant in discussions, in an attempt to
conclude an amicable separation
agreement, and not to institute
formal disciplinary proceedings against him. Alternative employment
was sought for the applicant
internally. Whilst Ms Gwamanda was in
Paris, she received a conference telephone call from the applicant
and from Mr Mohammed who
advised her that the meeting with the
applicant had gone well and that the applicant had accepted the offer
of amicable separation,
but that he remained concerned about his
share options.
[5] On 30 July 2010, the
applicant reported for duty, coming in his motor vehicle and had to
pass through the gate serviced by security
guards, one of whom was Mr
Robert Mncwango. At about 14h15, the applicant exited the company
premises and was subjected to the
usual searching by Mr Mncwango.
[6] A report was then
made to the company that on 1 August 2010 Ms Sibiya had been told by
Mr Mncwango that he had observed the
applicant leaving the company
premises on 30 July 2010 with some sugar, coffee, Cremora powder milk
and some juice in his motor
vehicle. Later, Ms Gwamanda received
correspondence that the applicant was unhappy about the settlement
agreement. After further
consultations with the applicant and when he
did not accept the settlement proposals, the company decided to take
disciplinary
action against the applicant for poor performance. At
the meeting held on 7 August 2010, Mr. Buitendag advised her that
there was
a theft case against the applicant and she instructed him
to investigate the matter. Mr Buitendag had received an e-mail from
Ms
Economou wherein she alleged that the applicant was involved in
the theft of files, tea, coffee and juice belonging to the company.
[7] The applicant was
suspended from duty on 11 August 2010. There was also an allegation
that the applicant had made a lot of photocopies
possibly of
sensitive information of the company. According to Ms Gwamanda, the
applicant was arrogant and he refused to speak
to her about the
allegations and he also refused to return any documents of the
company involved in the copying. All he returned
was his procurement
card.
[8] The company decided
to charge the applicant with misconduct which it described as:
8.1. theft, alternatively
unauthorized possession of company property thereby causing a
breakdown in trust in their relationship
in that he was found in
possession of Cremora milk powder, coffee, sugar and juice, all of
which belong to the first respondent
while exiting the Company’s
premises on 30 July 2010;
8.2. theft, alternatively
unauthorized copying and removal of company documents, causing a
breakdown in the trust relationship as
between the applicant and
respondent in that;-
during the last three
weeks of July 2010, the Applicant allegedly systematically copied
and removed company documents from the
First Respondent’s
premises in Richards Bay, and;
when confronted by the
First Respondent on 11 August 2010, the Applicant refused to respond
to its reasonable request for an explanation.
[9] The chairperson of
the internal disciplinary hearing appointed was a senior counsel,
Advocate Snijder,
with the company
saying it wanted an external person to ensure fairness and that there
was no bias. The disciplinary inquiry was
postponed on 27 August 2010
because the applicant wanted legal presentation and it was reconvened
on 17 September 2010. The applicant
was denied legal representation
on the basis that the respondent needed to deal with disciplinary
issues internally and the respondent
said it could not set a
precedent
.
The chairperson found the
applicant guilty of the misconduct on the first charge and not guilty
on the second. He recommended the
dismissal of the applicant. Because
the company was of the opinion that Mr Snijder failed to understand
the copying issue
,
it
decided to amend Mr Snijder’s recommendation and on 7 October
2010,
a letter was written to the applicant
advising him that he was found guilty of the theft charge and on the
charge which related
to the copying of the documents.
[10] He lodged an
internal review against the conviction and the dismissal decision, in
terms of the company policy. The General
Manager of the company, Mr T
Legrand presided in the review proceedings. Ms Gwamanda was with Mr
Legrand when a letter was drafted
to the applicant on 22 November
2010 as a written notification advising him that his review
application was dismissed and that
the sanction of summary dismissal
was upheld. Ms Gwamanda was the author of the notice to attend the
disciplinary inquiry, the
suspension letter, the settlement agreement
letter and had amended the outcome of the disciplinary inquiry. The
applicant referred
an unfair dismissal dispute for conciliation and
later for arbitration. The third respondent was appointed to
arbitrate the dispute
and his findings were that the applicant’s
dismissal was substantively fair but procedurally unfair. The
respondent was ordered
to pay the applicant compensation equivalent
to one month of his salary in the amount of R63 261.29, within 14
days of having been
advised of the award.
Chief
findings of the third respondent
[11] The third respondent
made numerous findings in this matter which, to the extent relevant
in this application, were
inter alia
that:
Substantive fairness
There were two mutually
destructive versions on what occurred between the applicant and Mr
Mncwango on the day in question and
it was obligatory to consider
the two conflicting versions on a balance of probabilities. There
was no onus on the applicant
to prove anything other than to
present a version of events that could be reasonably, possibly
true. Section 188 of the Act
had to be noted in terms of which the
respondent bore the onus to prove on a balance of probabilities
that the applicant’s
dismissal was procedurally and
substantively fair.
In so far as the theft
charge was concerned, the applicant’s submission that he was
framed, and in particular by Ms Sibiya
and Mr Mncwango, had to be
dealt with because the applicant said that he had been responsible
for Ms Sibiya’s earlier
dismissal by the company and that she
wanted to get rid of him. He also understood the applicant to say
that this greater scheme
of collusion against him had permeated
through the entire workplace to the extent that those employees who
were employed at
the respondent’s Head Office and elsewhere
were part of the scheme to get rid of him.
11.3 It was not
impossible for a group of employees to mastermind such a grandiose
plan to get rid of a troublesome co-employee,
such as the applicant.
However, to find that it indeed took place, it was necessary to
reconstruct that alleged heinous plot which
was planned and executed
with military precision. The imaginary reconstruction would not have
been impossible, but had to be considered
against the respondent’s
version as well as against the evidence which the applicant gave in
respect of the theft charge.
[12] The respondent’s
case in respect of the theft charge was totally dependent on the
evidence of Mr Mncwango who was a reliable
witness who dealt with
evidence clinically and objectively. Although Mr Mncwango made a
mistake in respect of the correct weight
of the Ricory coffee, Mr
Mncwango was very clear in respect of all the other items he saw in
the applicant’s car and had
to be borne in mind that he viewed
the items from a distance through the car window.
[13] There was no reason
to doubt Mr Mncwango’s evidence that he searched the
applicant’s car in the morning when the
applicant entered the
premises. The security guard would have seen them, whether it had
been in the morning or the afternoon. There
was no evidence that Mr
Mncwango held any grudges against the applicant and his very short
period of employment at the respondent’s
premises as well as
the fact that he was stationed at the gate and not a fulltime
employee, suggested to the third respondent that
Mr Mncwango was
unaware of all the internal turmoil within the employment
environment. No negative conclusion could be drawn about
the note Mr
Mncwango made in his pocket book when he recorded the incident. Mr
Mncwango’s explanation that he recorded it
to protect himself
was logical and acceptable.
[14] The applicant’s
testimony was somewhat flawed in that the applicant at first
suggested that the security guard had found
nothing in his car but
then changed that version under cross examination to say if the
security guard had seen goods in his car,
it would have been those
goods which he had purchased at the supermarket. The applicant
furthermore suggested that the time, 19h39,
of purchase recorded on
his invoice was incorrect as a result of the possible late recording
of the sale. That suggestion had to
be rejected because the applicant
had admitted that he had misplaced the original invoice and returned
to the store to obtain a
copy for the purpose of the arbitration and
his submission was highly improbable.
[15] The only reasonable
inference that could be drawn was that the applicant purchased the
goods at 19h39 that evening and that
being so, those items could not
have been in his car earlier that afternoon at 14h15 when the
applicant left his workplace. In
the event of having to accept Mr
Mncwango’s evidence it had to be accepted
in toto
and
not on a piece-meal basis, which acceptance led to a finding that the
applicant had told Mr Mncwango that the items were given
to him by
the company.
[16] Ms Economou’s
evidence that the applicant told her that
she
owed him his rations for all the years that he had worked,
strengthened the respondent’s
case. The applicant’s version, to the effect that if there were
goods in his car, it must
have been the goods he purchased at the
supermarket, was an attempt to fabricate a dishonest defence
.
It was more probable than not that the
applicant removed the goods from the respondent’s premises and
that the respondent
therefore discharged the burden to prove that the
applicant was guilty of theft. The applicant’s version of the
events could
not be reasonably, possibly true,
and
moreover, his defence that he was framed was consequently rejected.
[17] On the charge of the
copying and removal of documents by the applicant, the respondent was
unable to discharge the burden which
rested upon it to prove that the
applicant unlawfully copied company documents and unlawfully refused
to return the documents.
Although the respondent’s concern that
the applicant might have acted with impropriety was understandable,
the fact remains
that the offence was not proved on a balance of
probabilities. Hence the finding that the Chairperson correctly
acquitted him on
that charge.
Procedural fairness
[18] The question whether
the use of an external chairperson was in contravention of the
respondent’s disciplinary code and
procedure had to be
considered with the employer’s disciplinary code in mind. Where
such code exists, the employer will normally
be held to the
self-imposed standards though these should not be slavishly followed
as they are guidelines rather than binding
rules. Where the failure
to comply leads to unfairness an employer’s decision not to
comply should not be upheld.
[19] In this matter, the
respondent elected to appoint an external chairperson to ensure
fairness and that there was no bias
.
There was nothing wrong
with that decision and the respondent rather needs to be commended,
not only because it wanted to ensure
that the applicant was afforded
a fair and unbiased hearing, as there was no person within the
organisation who had the experience
and knowledge to deal with the
matter, or who was totally oblivious of it and could deal with it in
a fair and unbiased manner.
The respondent’s deviation from its
code to appoint an external chairperson was justified and fair under
the circumstances.
[20] The second alleged
procedural irregularity relates to the respondent’s failure to
have conducted an investigation into
the applicant’s conduct
prior to proceeding with the formal disciplinary enquiry in terms of
section C1 of its code. The
suggestion was that there was a clear
deviation by the respondent when it failed to conduct an
investigation before commencing
with the formal disciplinary enquiry
against the applicant. Section C1 was ambiguous and badly written and
leads to confusion.
The investigation referred to in the first
sentence does not necessarily refer to an independent and formal
investigative process
to which an employee had to be party, before
formal disciplinary action could be proceeded with by the respondent.
The last sentence
of the said paragraph states that the employee
representative does not have the right to participate in the
investigations into
the alleged transgressions. There was no
deviation by the respondent from its code when it suspended the
applicant and proceeded
with disciplinary action against him without
having conducted an investigation.
[21] The third alleged
procedural irregularity relates to the Chairperson’s failure to
submit his findings within the prescribed
36 hours and whether such
failure rendered the entire hearing unfair. Although it is
unfortunate that the Chairperson filed his
recommendations after the
expiry of 36 hours, this error does not render the entire
disciplinary process unfair because the code
is but a guideline.
Moreover, there is no evidence to suggest that the applicant was
prejudiced in any manner whatsoever as a result
of the late filing of
the recommendations.
[22] The fourth alleged
procedural irregularity relates to the respondent’s failure to
conduct the applicant’s review
application in terms of the
code. The review application was unfair, particularly because of Ms
Gwamanda’s participation
in the process. By her own admission,
she was with Mr Legrand when the review was written. It was
reasonable to conclude that she
advised him. Mr Legrand was entitled
to seek advice as is any other decision maker. The fundamental
principle which applies in
such instances, to ensure that an unbiased
decision is rendered, is that, when a decision-maker seeks advice, he
must consider
that advice independently and apply his mind to the
facts before him and make his independent decision. In this instance
the probabilities
favour the applicant. Ms Gwamanda had a material
influence on Mr Legrand’s decision because of her involvement
in the entire
process. It was more probable that Ms Gwamanda’s
influence on Mr Legrand was such that she had a marked influence on
his
decision because of her assertiveness and the influence she
exerted on everybody who was involved in the disciplinary process.
[23] The fifth alleged
procedural irregularity relates to the respondent’s refusal to
allow the applicant legal representation.
The right to representation
at a disciplinary enquiry is one of the cornerstones of a fair
process and is an elementary element
of justice. The respondent’s
refusal to grant the applicant legal representation was unfair. The
applicant was a senior employee
and there was no senior or
experienced co-employee who could have represented him. The
respondent was hell bent on dismissing the
applicant. It was unfair
to refuse him legal representation and leave him without any
representation at all when an employer knew
that an employee was
charged with serious and dismissible offences and that it intended to
do everything within its power (hell
bent) to ensure the employee’s
dismissal. The employer elected to deviate from its code by
appointing an external Chairperson
and it flies in the face of Ms
Gwamanda’s evidence that she wanted to ensure fairness. Had
this submission been true, the
respondent should have had no
objection whatsoever to allow the applicant legal representation. Ms
Gwamanda’s reasons for
the refusal namely, that it would create
a precedent and it would lead to a situation where all employees
would have to be granted
the right to have legal representation at
disciplinary enquiries had no merits as each matter needs to be dealt
with on its own
merits.
[24] The sixth alleged
procedural irregularity relates to Ms Gwamanda’s decision to
reject the Chairperson’s recommendation
and unilaterally amend
it, because the Chairperson allegedly did not understand the
respondent’s position in regard to the
copying of documents.
The r
espondent should at least have advised the
applicant of its decision to amend the Chairperson’s
recommendation in line with
the principle of
social
justice,
which should be introduced within the realm of Labour
Law.
Within the context of this
arbitration it means that those senior managers who acted on behalf
of the respondent were required to
move beyond the objective
interpretation and application of so-called fair procedures and apply
their minds to the ethics of
social justice
and fairness.
Notwithstanding the respondent’s attempts to have resolved the
problems relating to the applicant, initially
through alternative
means and finally through formal disciplinary action, it still sought
its own interests and acted unfairly
and unethically when it
unilaterally amended the external chairperson’s recommendations
and did not even have the gumption
to advise the applicant of its
decision. The respondent’s decision to unilaterally reject and
amend the Chairperson’s
recommendations without advising the
applicant, was not only unfair, it went beyond the normal procedural
irregularities and made
a farce of the respondent’s suggestion
that they wanted to ensure fairness and that there was no bias
.
It
was also devoid of all the fundamentals of conducting a hearing in an
ethically fair manner.
T
he question of theft
in relation to the value of the goods
[25]
A dismissal was not
an expression of moral outrage; much less was it an act of vengeance.
It was, or should be, a sensible operational
response to risk
management in the particular enterprise. The applicant’s
actions constituted theft, were premeditated and
planned, no viable
relationship remained, he held a senior position of trust, he had a
key to the store room and easy access to
the goods and the dismissal
had everything to do with trust and the respondent’s
operational needs, and not the value of
the goods that were removed
by the applicant.
Was dismissal an
appropriate sanction to impose on the applicant
[26] Within the
applicant’s employment environment and given his position and
responsibilities, the seriousness of the offence
must be considered
in conjunction with the breach of the trust relationship between the
parties. It was one of the fundamentals
of the employment
relationship that the employer should be able to place trust in the
employee. A breach of this trust in the form
of conduct involving
dishonesty was one that went to the heart of the employment
relationship and was destructive of it. The dismissal
was an
appropriate sanction under the circumstances.
Was the applicant
entitled to any compensation for having been procedurally unfairly
dismissed
[27] On the one hand, the
nature of the offence committed by the applicant and the manner in
which he set about it, and the fact
that he obviously showed no
remorse, did not warrant any award of compensation at all. On the
other hand, the respondent acted
in an a grossly unfair manner when
it decided to amend the Chairperson’s recommendations to suit
it own needs as recorded
above. Hence it would be appropriate to
award the applicant compensation equal to one month’s salary
amounting to R63261.29.
Main review
application
Grounds for review
[28] There are ten
grounds for review outlined by the applicant in the main review
application. The first three, the eighth and
the ninth grounds relate
to substantive fairness of the dismissal while the remaining grounds
pertain to procedural fairness. It
is expedient to deal with them in
that grouping.
Substantive fairness
[29] The submissions are
that the third respondent:
Failed to accept that
on a balance of probabilities, the applicant’s version was
more probable in the circumstances in
that he
failed
to apply his mind to the material facts placed before him and
failed to justify, alternatively, rationally justify why
the
applicant’s version was not more probable, in light of the
evidence presented by the applicant as compared to the
witnesses
for the respondent, more especially as in paragraph 22 of the
arbitration award, he concludes in the last sentence
thereof that
there was no onus on the applicant to prove anything other than to
present a version of events that could be reasonably,
possibly
true.
The third respondent
misconducted himself and failed to apply his mind to the material
facts placed before him in relation to
the evidence of Ms Economou
and the cross examination of her. Ms Economou conceded in her
evidence that her stock taking schedules
were incorrect, and that
there were at least 3 keys to the stock room. This important factor
was overlooked by the third respondent
in the analysis of the
matter.
[30] The third respondent
misconducted himself and failed to apply his mind to the material
facts placed before him to justify,
alternatively rationally justify
why, despite recording his displeasure at Ms Gwamanda’s role in
influencing the CEO in relation
to the review of the findings of the
disciplinary enquiry and in influencing the external chairperson to
reject the applicant’s
request for legal representation; in
deciding to reject the Chairperson’s recommendation and
unilaterally amending it, he
still finds against the applicant,
despite having a reasonably, possibly true version from the
applicant.
[31] The third respondent
placed too much emphasis on the theft charge and clearly misconducted
himself in finding the applicant
guilty of it. The applicant was not
found guilty by the police nor was a criminal report made by the
first respondent. The third
respondent failed to apply his mind to
the evidence before him in that he could have found on a balance of
probabilities, the applicant’s
version was more probable and
that there was a conspiracy by the employees of the first respondent
to ensure the applicant’s
dismissal.
[32] The third respondent
erred by not scrutinising the material facts presented before him and
as a result failed to justify, alternatively
rationally justify why
he concluded that the applicant’s dismissal was substantively
fair.
Procedural fairness
[33] During the course of
the
a
pplicant’s dismissal, the
f
irst
r
espondent deviated from its own Code without
explanation or justification. Much of the conduct
displayed
by both parties has to be guided by the principals, terms and
conditions as set out in the disciplinary code. The
t
hird
r
espondent was,
accordingly,
obliged to take into account each of the various terms
and conditions outlined in the disciplinary code in coming to a
finding.
The
t
hird
r
espondent
misconducted himself and failed to apply his mind to the material
facts placed before him when he concluded
that
there
was no person within the organisation who had the experience and
knowledge to deal with the matter, or who was totally oblivious
of it
and could deal with it in a fair and unbiased manner. With
submission, there was no evidence led before the
t
hird
r
espondent at the arbitration hearing for him to
come to such an irrational, unjustified conclusion
.
[34] The
t
hird
r
espondent did not apply his mind to the fact
that the
f
irst
r
espondent’s
disciplinary policies and codes make provision to an investigation to
be conducted prior to proceeding with a
formal disciplinary enquiry
against an employee. In so doing, the cumulative effect of the third
respondent’s misdirection
of judgment is itself a failure of
justice on the
a
pplicant.
[35] The third
respondent’s failure to apply his mind when concluding that the
a
pplicant did not suffer prejudice in the delay
of receiving the chairperson’s decision. It is the
a
pplicant’s
submission that the
t
hird
r
espondent
had grossly misdirected himself in reaching the aforesaid conclusion.
[36] Despite the third
respondent finding in favour of the applicant on the fourth, fifth
and sixth procedural irregularities, he
still concluded that the
dismissal was fair. The third respondent failed to conclude that the
applicant would have suffered great
prejudice as a result of the
procedural unfairness and thus making the dismissal unfair in its
entirety. The attitude and mindset
of the third respondent droned in
against his analysis and conclusion of the evidence in respect of the
procedural irregularities
conducted by the respondent. In failing to
do so, the third respondent showed clear bias in favour of the
respondent.
[37] Despite the
arbitration proceedings concluding on 25 February 2011, the
t
hird
r
espondent failed to transmit the award timeously
to the parties. The award was received by both the parties on 28
March 2011, 14
days after the hearing and well
after the prescribed period.
T
he failure by the
t
hird
r
espondent to adhere to
the p
e
remptory provisions of section 138 of the
Act renders his decision reviewable.
Grounds to oppose the
review application
[38] The respondent made
a number of submissions to oppose the granting of the review
application on the basis sought by the applicant.
Some of the
submissions were that:
The decision of the
third respondent fell within the required range of reasonableness
based on the probabilities arising from
evidence placed before the
Commissioner for various reasons including, that the evidence
showed that it was probable that the
applicant stole the items in
question. He had mentioned to a member of staff that he believed he
was entitled to the items
stolen. It was clear he was not entitled
to those items. He had a key to the store room which he denied
having. He was seen
in the store room while the person responsible
for the area was absent. He was able to remove the items without
being detected
by the security cameras. A stock taking revealed the
items to be missing. A security guard had seen the applicant
leaving the
premises with the items in question and recorded what
he had seen in his notebook. In answer to the allegation, the
applicant
tendered three contradictory versions regarding the items
found in his car.
The applicant’s
defence that he was set up and framed and that this was all part of
an elaborate plot to get rid of him
was improbable and was
correctly rejected. If he had been framed, then the security guard
would have reported the matter directly
to his supervisor on 30
July 2011. The issue would not have arisen accidentally in the
course of his conversation with Ms Sibiya
on 1 August 2010. Mr
Mncwango would have been more accurate in his description of the
goods he found in the car. It is common
cause that he described the
goods he found in the applicant’s vehicle as: 2 x 2kg
Ricoffy, 1 x 2kg Cremora, 2 x 2.5kg
sugar and a 2 litre red juice.
Mr Mncwango was not employed by the respondent and had only been
seconded to the plant and there
is no evidence that he had issues
with the applicant.
[39] The applicant also
raised the defence that the items identified in the stock take did
not exactly correlate with the items
found in his vehicle. However,
the purpose of this evidence was not to show an exact correlation
between the missing stock and
the stock found in the applicant’s
vehicle, but to show that stock, in the nature of the items
ordinarily kept by the respondent,
was found on the applicant’s
vehicle, and a number of such items were found to be missing from the
storeroom. It was not
contended that the applicant stole all of the
items found to be missing from the storeroom, but that he had
opportunity and access.
The fact that more stock was missing does not
detract from the fact that there was a reasonable correlation between
the items found
in the vehicle, the items found missing from the
store room, and the items held in stock and distributed to plant and
shift workers.
It was submitted that this defence did not alter the
balance of probabilities on this issue, and it remains probable that
the items
in question were removed by the applicant.
[40] Regarding the
appropriate sanction, the third respondent concluded that dismissal
was appropriate and this finding also accords
with the facts. The
company code prescribed the penalty of dismissal for theft.
Furthermore, the respondent had dismissed other
employees for
stealing a few bags of cement.
The counter review
application
[41] The submissions made
by the respondent were basically that:
At paragraph 25 of the
Arbitration award, the third respondent found that the Company was
unable to prove on a balance of probabilities
that the applicant
unlawfully copied company documents and unlawfully refused to
return the documents. The company submitted
that in coming to that
conclusion, the third respondent committed a gross irregularity,
alternatively misconducted himself
in that he failed to apply his
mind to the evidence placed before him, and arrived at a conclusion
that was not reasonable
relative to such evidence. The company
further submitted that the third respondent failed to properly
reconcile the contradictory
versions on the copying charge, failed
to meaningfully assess the credibility of the witnesses on this
point, and failed to
assess the probabilities arising out of their
irreconcilable versions. This constitutes a reviewable
irregularity.
Failure to apply his
mind
41.2 The third respondent
expended only 7 lines in his award regarding the copying charge. In
those 7 lines, he does not reconcile
or draw attention to the
parties’ differing versions, does not make factual findings and
does not comment on the credibility
of the witnesses in respect of
their differing versions. He failed to provide reasons or
substantiate why he believed the company
had not proved the
photocopying charge on a balance of probabilities. This constitutes a
reviewable irregularity as a commissioner
is required to reconcile
contradictory versions, to state which issues he took into
consideration in making a decision and to deal
with inconsistencies,
contradictory versions and improbable explanations.
Findings are not
reasonable relative to the evidence presented
[42] Furthermore, the
findings of the Commissioner on this point are not within a range of
reasonableness relative to the evidence
presented. It is apparent
from the evidence that Mr Hadebe probably copied documents equivalent
to 6 new lever arch files, approximately
3000 pages He did the
copying himself whereas previously he had used his secretary to do
all copying. The documents being copied
appeared to be contracts and
emails. The applicant tendered various versions at different times
regarding this issue all of which
gives rise to a reasonable
inference of duplicity and that he could not be trusted.
[43] Mr Hadebe’s
first response was silence and a refusal to offer any explanation,
and the only reasonable inference that
can be drawn from this refusal
to co-operate on 11 August 2010, is that something sinister was
probably afoot. It is probable that
if there was an innocent
explanation for his copying, he would have tendered it at the time
but he deliberately refused to do so.
Furthermore, had his conduct
been innocent it is probable that he would have shown the company the
documents he had copied and
would have allowed the company to inspect
them, but he refused to do so and this undermines the trust
relationship. Mr Hadebe’s
second version tendered during the
pre arbitration meeting was that he denied making copies. Mr Hadebe’s
third version was
that he admitted making copies but they related to
his performance. If this was the case he would have said so when
asked for an
explanation on 11 August 2010 and he would have pointed
out the documents to the Company
.
[44] Mr Hadebe’s
fourth version was that the copies were to back up his computer
because his laptop had once previously been
stolen
.
Again if
this was the case it would have been stated earlier and would have
been raised during the disciplinary enquiry. Mr Hadebe’s
fifth
version was that the copies were to brief his subordinates. However,
one of his subordinates to whom he delegated his functions
was Mr
Sanele Ndebele who testified at the CCMA, but mentioned nothing about
documents being issued to him. Furthermore, this version
was not put
to Mr Ndebele and emerges for the first time during Mr. Hadebe’s
evidence at the CCMA. It is probable that if
this had been the case,
the version would have been raised at the disciplinary enquiry and
put to Mr. Ndebele who would have been
asked to corroborate this
version.
[45] Version six was that
he had to protect himself against a possible enquiry into the
websites he had been viewing on the net.
This version emerges for the
first time during cross examination and was not raised in his
evidence in chief or during the disciplinary
or put to any witnesses,
and is hence improbable. Version seven was that the documents were
his files. However, Tannith testified
that she ordinarily did his
photocopying and when this was put to him in cross examination he
mentioned the “sensitivity”
of the documents.
Consequently, by implication Mr Hadebe admitted that the documents
were confidential as otherwise Tannith would
have copied them.
[46] Version eight was
that he did not take the documents home but then admits taking them
home. Mr Hadebe initially denied removing
any files and stated
explicitly that he never removed any document. Despite this, he
admitted taking documents home and contended
that he returned them in
a bag on or about 12 August 2010, and he stated explicitly that he
returned the following day with a bag.
He returned the procurement
policy and other documents that were in his possession. This version
was improbable as the first time
Mr Hadebe raises it was under cross
examination. He did not put it to any witness and did not raise it in
his evidence in chief
or at the disciplinary enquiry, despite the
fact that the removal of documents was a material component of the
charges against
him.
[47] Version nine was
that the files were with his subordinates, Mr Hadebe then contended
under cross examination that the reason
he had been copying the files
was to give them to subordinates. Despite this. he then contended
that all the files were in his
office. Again this version is
improbable as if he had copied the files in order to give them to
Sanele and Tshepo as he alleges.
It has to be asked why all files
were in his office and not given to them and why was this version not
put to Sanele.
[48] Despite all of these
issues, the third respondent made no credibility finding in this
regard and did not draw attention to
and made no effort to reconcile
the different versions. Consequently, the only inference that can
reasonably be drawn is that,
with respect, the third respondent
failed to properly apply his mind to the facts placed before him on
this issue and this renders
the matter reviewable.
[49] The company submits
that this issue should not be sent back to the second respondent for
rehearing, as the evidence necessary
to make a determination on this
issue is before the Court. The company respectfully submits that the
Court is consequently as well
placed as the CCMA to make a
determination on this issue. The company further submits that the
Court should find that Mr Hadebe
was guilty of the photocopying
charge. The Company further submits that this Honourable Court should
find that the trust relationship
has been irreparably destroyed and
the Court should find that dismissal is the appropriate penalty in
respect of this offence.
Internal Review
[50] .At paragraph 29 of
the award, the third respondent found that the internal review
(appeal) was not conducted in accordance
with the company’s
disciplinary code. Paragraph 4.1.1.4 of the pre-arbitration minute
provides that the third respondent
is required to ascertain whether
the respondent failed to conduct the applicant’s review
application of his dismissal in
terms of its disciplinary code and
policy, and if so whether such failure constitutes a sufficient basis
for finding the procedure
as a whole unfair. Consequently the third
respondent’s terms of reference on this issue are confined to
whether the company
complied with its code and the third respondent
is not entitled to have regard to other issues. The company’s
disciplinary
code provides at paragraph 6:
‘
Review
Procedure
50.1 An employee and the employer
shall have the right to have the outcome of a hearing reviewed.
50.2 A review application must be
lodged with a third party who will be a senior manager, within 5
(five) days of the disciplinary
hearing having taken place.
50.3 The review constitutes a review
of the proceedings and the finding of the Disciplinary Hearing. No
additional evidence shall
be presented. The Review Chairman will be
provided with all relevant documentation including the Code’.
[51] It is clear from the
evidence presented at the arbitration that the company granted the
review, it was lodged timeously, no
additional evidence was led and
the Chairman of the review was provided with all relevant
documentation. Consequently, it is evident
that the provisions of the
disciplinary code were complied with and the third respondent’s
enquiry should have ended there.
Despite this, the third respondent
considered issues regarding Ms Gwamanda’s assistance that go
beyond compliance with the
code, and all findings which deal with
issues other than whether the code was complied with, are ultra
vires. Parties are bound
by the pre-trial minute.
Legal Representation
[52] At paragraph 30 of
the arbitration award, the third respondent finds that the company’s
refusal to allow Mr Hadebe legal
representation during the
disciplinary enquiry was procedurally unfair. However, the third
respondent exceeded his powers in determining
this issue as the
pre-arbitration minute which determined the terms of reference of the
arbitrator did entitle him to consider
the issue of legal
representation. Even if the third respondent had not exceeded his
powers, then it is evident that he did not
apply his mind to the law
and issues which need to be considered before making a determination
regarding legal representation and
in so doing committed a reviewable
irregularity. The third respondent’s failure to apply the
correct legal principles renders
the award reviewable. There is no
evidence that the third respondent considered:
The provisions of
Schedule 8 of the LRA;
The fact that the
company was not legally represented.
The respective
prejudice to the parties and the cost, inconvenience and delay
associated with allowing legal representation.
The degree of factual
and legal complexity. Had he applied his mind to this issue, he
would have concluded that the issue
of simple theft and
photocopying charges are not complex.
The ability of the
employee to represent himself, considering that Mr Hadebe is
highly educated and there is no evidence
he was unable to present
his case in the absence of legal representation.
The third respondent
decided that Mr Hadebe should have been allowed legal
representation solely because he was unable to
secure the
services of a company representative.
It would create a
very unsavoury precedent in our law if all that was required by
an employee to secure legal representation
was a simple averment
that he has been unable to find a person internally.
The Company submits
that the third respondent failed to properly apply his mind on
this issue and arrived at a conclusion
that is not reasonable
relative to the law and facts.
[53] Consequently, the
Company respectfully submits that paragraph 30 of the arbitration
award should be reviewed and set aside.
Amendment of the
outcome of the disciplinary enquiry
[54] At paragraph 31 of
the arbitration award, the third respondent concluded that the
company had committed a procedural irregularity
in partially
modifying the outcome of the disciplinary enquiry. It is submitted
that this issue is also
ultra vires
and the third respondent
exceeded his powers in making this finding. The terms of reference of
the third respondent are set out
in the pre-arbitration minute, and
no-where was the third respondent empowered to consider this issue.
Furthermore, the extent
of the amendment and the reasons therefore
were not traversed or considered by the third respondent in the
arbitration award. He
concludes that the circumstances are not
exceptional but he provides no reason for why he regards the
circumstances as not being
exceptional. He merely makes the comment
without corroboration or reference to the issues raised above, and
hence he has clearly
failed to apply his mind to the issues. Hence
the decision of the third respondent contained in paragraph 31 should
be set aside
on this basis.
[55] In opposing the
counter review application, the applicant submitted that the
respondent was unable to prove on a balance of
probabilities that the
applicant unlawfully removed documents and unlawfully refused to
return any documents. He said that the
deponent to the respondent’s
founding affidavit made spurious allegations that she had witnessed
the unlawful photocopying
and further saw the nature of the documents
that were copied. That allegation was said to have fallen on the face
because the respondent
failed to lead evidence to the proof thereof.
Neither did it provide any exhibits to the documents unlawfully
copied by the applicant,
so the submission went. In respect of the
other grounds of review, the applicant basically reiterated the
reasons given in the
award by the third respondent.
Analysis
[56] In a nutshell, the
submission of both parties put together amounts to that the third
respondent in making the arbitration award
erred in that he came to
conclusions which were not rationally connected to the facts,
evidence and material placed before him
at the arbitration,
misrepresented the facts, evidence and material placed before him,
failed to apply his mind properly to the
facts, evidence and
material, seriously and grossly did not conduct himself in a proper
manner and was clearly biased in favour
of the respondent. The
submissions call to mind the provisions of section 145 of the Act
which, to the extent relevant read:
‘
Any party to
a dispute who alleges a defect in any arbitration proceedings under
the auspices of the Commission may apply to the
Labour Court for an
order setting aside the arbitration award-.
(2) A defect referred to in subsection
(1) means –
(a) that the commissioner-
(i) committed misconduct in relation
to the duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity in
the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner’s
powers; or
that an award has been improperly
obtained.
[57] In addition to the
review grounds outlined in section 145 of the Act,
in
review applications, lies a further consideration whether the
decision reached by commissioner is one that a reasonable decision
maker could reach.
2
[58] Commenting on the
reasonableness in
Sidumo
decision ( supra), the
Court in
Edcon
Limited v B Pillemer NO and Others
3
said that:
‘
What will
constitute a reasonable decision will depend on the circumstances of
each case, much as what will constitute a fair procedure
will depend
on the circumstances of each case. Factors relevant to determining
whether a decision is reasonable or not will include
the nature of
the decision, the identity and expertise of the decision maker, the
range of factors relevant to the decision, the
reasons given for the
decision, the nature of the competing interests involved and the
impact of the decision on the lives and
wellbeing of those affected.
Although the review functions of the court now have a substantive as
well as a procedural ingredient,
the distinction between the appeals
and reviews continues to be significant. The court should take care
not to usurp the functions
of administrative agencies. Its task is to
ensure that the decisions taken by administrative agencies fall
within the bounds of
reasonableness as required by the Constitution’…
[59] With these legal
principles in mind, the decision of the third respondent will be
considered. In his view, there was sufficiency
of evidence to prove
the guilt of the applicant on the charge of theft. It stands out
clearly in the award that the third respondent
placed much reliance
on the evidence of Mr Mncwango to find the applicant guilty on the
first charge. At paragraph 24, the third
respondent,
inter alia
,
said:
‘
At first
glance it appears as if the Respondent’s case in respect of the
theft charge is totally dependent on the evidence
of Mncwango. I
found him to be a reliable witness who dealt with his evidence
clinically and objectively. Although he made a mistake
in respect of
the correct weight of the Ricory coffee, he was very clear in respect
of all the other items he saw in the Applicant’s
car and it has
to be borne in mind that he viewed the items from a distance through
the car window. I have no reason to doubt his
evidence that he
searched the Applicant’s car in the morning when the Applicant
entered the premises. As stated above, the
items were displayed on
the table before us and if the items were in the car in the morning,
I confidently find that the security
guard would have seen them,
whether it had been in the morning or the afternoon. There is no
evidence that he held any grudges
against the Applicant and his very
short period of employment at the Respondent’s premises as well
as the fact that he was
stationed at the gate and not a fulltime
employee, suggests that he was unaware of all the internal turmoil
within the employment
environment. I also cannot draw any negative
conclusion (as Mr. Naidoo suggested) about the note Mncwango made in
his pocket book
when he recorded the incident. His explanation that
he recorded it to protect himself is logical and acceptable. The
Applicant’s
testimony was somewhat flawed in that he at first
suggested that the security guard had found nothing in his car, he
then changed
this version under cross examination and testified that
if the security guard had seen goods in his car, it must have been
those
goods which he had purchased at the supermarket. He furthermore
suggested that the time (19h39) of purchase recorded on his invoice
was incorrect as a result of the possible late recording of the sale.
I reject this alibi because the Applicant admitted that he
had
misplaced the original invoice and returned to the store to obtain a
copy for the purpose of this arbitration and his submission
is also
highly improbable. The only reasonable inference that I can make in
this regard is that the Applicant had indeed purchased
the goods at
19h39 that evening and that being correct, those items could not have
been in his car earlier that afternoon at 14h15
when he left his
workplace.’
[60] Apart from the
generalised allegation in review ground one, the applicant did not
attack the findings of the third respondent
with respect to the
assessment of the evidence of Mr Mncwango. Yet this evidence was of
so strong and highly persuasive value that
the probabilities favoured
its acceptance, when seen against that of the applicant. Any such
attack should have been in the pleadings
and not in supplementary
heads of argument as such was nothing but an afterthought. As none of
the five grounds of review on substantive
fairness specifically
sought to challenge the third respondent’s findings, no defect
has been shown by the applicant to have
been committed by the third
respondent. On the contrary, the award shows that the third
respondent properly applied his mind to
the relevant issues and
reached a decision a reasonable decision maker could have reached in
the circumstances.
[61] The applicant was
clearly on a wild goose chase in this respect. It is not surprising
that he made submission such as that
the third respondent placed too
much emphasis on the theft charge and clearly misconducted himself in
finding the applicant guilty
of it and that the applicant was not
found guilty by the police nor was a criminal report made by the
first respondent. The third
respondent had to apply his mind to the
theft charge. Police never find the accused or suspects guilty as
this is a function of
the courts. Failure of the employer to lodge a
criminal charge has never been either a ground for review or a
consideration whether
the award is reviewable or not.
[62] The evidence of the
other witnesses of the respondent had the effect of merely adding on,
to what Mr Mncwango had said. True
indeed, Ms Sibiya probably had an
exe to grind with the applicant, who it seems, was pivotal in her
prior dismissal and she probably
underplayed that part. Indeed, more
employees had access to the grocery stock at the workplace of the
respondent and more such
stock went missing at the time. Yet the
evidence of Mr Mncwango stood as an edifice, forcing the applicant to
present various contradictory
versions.
[63] In my view,
therefore, all five grounds of review traversed by the applicant on
substantive fairness must fail.
[64]
On
procedural fairness, it remained common cause that the applicant was
the most senior employee at the Richard’s Bay workplace.
4
If this were not true,
the applicant failed to show who he reported to at that workplace.
Nor has the applicant shown successfully
how the respondent deviated,
as alleged, from its policy by appointing an outside person to chair
the disciplinary hearing.
Not
much need be said about the alleged failure to conduct investigation
as the reasoning of the third respondent stands pertinently
clear in
paragraph 27 of the award. Whether one agrees or disagrees with the
third respondent’s clear application of his
mind on the issue,
it is irrelevant. The same holds for the delay in submission of the
findings by the chairperson within the prescribed
36 hours.
5
In my view, the other
grounds amount to no more than appeal grounds and therefore need no
further consideration. All five grounds
on procedural fairness must
accordingly fail.
The counter review
application.
[65] The first ground
related to whether there was sufficient evidence by the respondent to
prove the second charge. The respondent
bore the onus to prove the
fairness of the dismissal relative to this charge as the dismissal
was common cause.
6
The third respond found
that the respondent failed to prove this charge. The submission is
that in coming to that conclusion the
third respondent committed a
gross irregularity, alternatively misconducted himself in that he
failed to apply his mind to the
evidence placed before him, and
arrived at a conclusion that was not reasonable relative to such
evidence. The company further
submitted that the third respondent
failed to properly reconcile the contradictory versions on the
copying charge, failed to meaningfully
assess the credibility of the
witnesses on this point, and failed to assess the probabilities
arising out of their irreconcilable
versions. This constitutes a
reviewable irregularity.
[66] To say the least,
the evidence of the respondent for the second charge was very vague
for lack of particularity. The applicant
was still on duty at the
relevant times of copying documents. From the evidence, he was not
prohibited from making photocopies.
The giving of instructions to a
junior staff did not mean he was not allowed to do it himself. No
evidence was produced of what
documents if any, could never be
lawfully copied. No evidence of what copies he made was produced.
Effectively, the respondent
shifted the burden of proof and placed it
on the applicant to prove himself innocent. The third respondent saw
this and properly
cut the inquiry short. This ground has no merits
and therefore stands to fail.
[67] The next ground
related to Ms Gwamanda’s role in the review proceedings. The
third respondent found that the internal
review (appeal) was not
conducted in accordance with the company’s disciplinary code.
Paragraph 4.1.1.4 of the pre-arbitration
minute provided that the
third respondent was required to ascertain whether the respondent
failed to conduct the applicant’s
review application of his
dismissal in terms of its disciplinary code and policy, and if so,
whether such failure constituted a
sufficient basis for finding the
procedure as a whole unfair. The submission was that the third
respondent’s terms of reference
on this issue were confined to
whether the company complied with its code and that the third
respondent was not entitled to have
regard to other issues. The
respondent averred that it was clear from the evidence that the
company granted the review, it was
lodged timeously, no additional
evidence was led and the Chairman of the review was provided with all
relevant documentation. Consequently
it was evident, so the argument
went, that the provisions of the disciplinary code were complied with
and the third respondent’s
enquiry should have ended there.
[68] If the three factors
listed by the respondent were the only ones for the consideration of
the review process by the respondent,
it would make a mockery of the
review process. The respondent seeks to reduce its review process to
a form devoid of substance
and this cannot be. According to this
submission,
it
would be enough for the review process if the employee has submitted
papers with the review application in time and a reviewing
official
merely reads the papers and then puts them away, contending that the
matter has been reviewed. In my view, it was within
the mandate given
to the third respondent to consider the substance of the review
process. That is what he just did. Accordingly,
this
ground stands to fail.
[69] The next ground
relates to a finding of the third respondent that the applicant was
entitled to legal representation during
the internal disciplinary
hearing and that the company’s refusal to allow him legal
representation was procedurally unfair.
The submission was that the
third respondent exceeded his powers in determining this issue as the
pre-arbitration minute which
determined the terms of reference of the
arbitrator did entitle him to consider the issue of legal
representation. The respondent
said that even if the third respondent
had not exceeded his powers, then it was evident that he did not
apply his mind to the law
and issues which needed to be considered
before making a determination regarding legal representation and in
so doing committed
a reviewable irregularity.
[70] There is no
statutory provision for legal representation during the internal
disciplinary hearing. Schedule 8 to the Act provides
for
representation of an employee by a trade union or by another
employee. Where an employee represents another practice has it
that
such employee should be senior to the one being represented. In this
case,
the
applicant was the most senior to his colleagues. Whether it is fair
for an employee to be legally represented at the internal
disciplinary hearing is a matter to be decided on the facts of each
matter. It is ideal is to keep the proceeds at this stage as
simple
as possible, taking into account various factors.
7
The respondent has
correctly identified those factors for consideration.
[71] The third respondent
found that it was unfair to refuse him legal representation and leave
him without any representation at
all when an employer knew that an
employee was charged with serious and dismissible offences and that
it intended to do everything
within its power (hell bent) to ensure
the employee’s dismissal. He said that the employer elected to
deviate from its code
by appointing an external Chairperson and it
flies in the face of Ms Gwamanda’s evidence that she wanted to
ensure fairness.
While it could not be determined at the disciplinary
hearing how complex this matter could be, the reality is that it has
become
very bulky, due to numerous issues raised by both parties for
consideration. The issue was raised by the applicant at arbitration
and the third respondent had to respond to it. In so doing,
he did not exceed his
powers. While the third respondent did not identify each factor for
the consideration of fairness to legal
representation, he appeared to
have been alive of them and outlined the pertinent issues
8
.
[72] At paragraph 31 of
the arbitration award, the third respondent concluded that the
company committed a procedural irregularity
in partially modifying
the outcome of the disciplinary enquiry. The submission was that this
issue was
ultra vires
and the third respondent exceeded his
powers as set out in the pre-arbitration minute, as no-where was he
empowered to consider
it. The extent of the amendment and the reasons
therefore were said not to have been traversed or considered by the
third respondent
in the award. He was said to have concluded that the
circumstances were not exceptional, without providing reasons for his
finding
but he merely made the comment without corroboration or
reference to the issues raised, and hence failed to apply his mind to
the
issues.
[73] The respondent had
to prove the fairness of dismissal premised on it having had to amend
the finding of the chairperson acquitting
the applicant of the second
charge and replacing it with a guilty verdict. The third respondent
had therefore to deal with the
issue. That the third respondent
merely said that he found no exceptional circumstances without
corroboration or reference to the
issues raised and hence failed to
apply his mind to such issues, remained an incomplete criticism,
until it was shown what exceptional
circumstances were proved to
exist, for him to have considered. No such exceptional circumstances
were ever shown to exist. In
respect of this ground, the respondent
did what it had done best in these proceedings, to shift the burden
resting on it to others,
this time to the third respondent. This
ground of review had no merits.
[74] In the
circumstances, Court will accordingly issue the following order:
74.1 The main review
application is dismissed;
74.2 The counter review
application is dismissed;
74.2 No costs order is
made.
________
Cele J
Judge of the Labour Court
of South Africa
Appearances:
For the applicant: Mr J P
Broster
Instructed by: Naidoo and
Company Inc. Durban.
For the respondent: A L
Cook.
Instructed by: Solomon
Holmes Attorneys, Johann
.
1
The
Labour Relations Act Number 66 of 1995.
2
See
Sidumo v Rustenburg Platinum Mines
(2007) 28 ILJ 2405 (CC) at
para 110.
3
(2008)
29 ILJ 614 (LAC) at para.22.
4
See
also submissions by applicant on legal representation.
5
See
paragraph 28 of the award.
6
See
section 192 (2) of the Act.
7
Such
as
the respective prejudice to the parties, the cost,
inconvenience and delay associated with allowing legal
representation, the
degree of factual and legal complexity, the
ability of the employee to represent himself, etc.
8
As
permitted by section 138 (1) of the Act.