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[2013] ZALCD 32
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South African Revenue Service v Commission for Conciliation, Mediation And Arbitration and Others (JR1522/11) [2013] ZALCD 32; (2014) 35 ILJ 1070 (LC) (12 September 2013)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case Number: JR
1522/11
In
the matter between:
SOUTH
AFRICAN REVENUE
SERVICE Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER
J LE F
PIENAAR Second
Respondent
WINNIE
MAHLAKOANE Fourth
Respondent
Heard:
30 August 2013
Delivered:
12 September 2013
Summary:
Review of award – double jeopardy - the two acts of the alleged
misconduct are clearly distinguishable
from each other,
notwithstanding any similarities in their facts and in their role
players. The second respondent misdirected himself
when he conflated
the two acts of misconduct into one.
JUDGMENT
CELE,
J
Introduction
[1]
The present application is one in terms of section 145 of the Labour
Relations Act
[1]
(the
Act) for the review and setting aside or correction of the
arbitration award dated 25 May 2011 issued by the second respondent.
The applicant seeks to have a finding made that the dismissal of the
third respondent was fair. In the alternative it seeks to
have the
matter remitted to the first respondent for a
de
novo
arbitration hearing before a commissioner other than the second
respondent. The third respondent in whose favour the assailed award
was issued opposed this application.
Factual
background
[2]
In the year 2000 the third respondent was
unemployed. She was granted a child support grant in respect of her
two minor children,
in terms of the now repealed Social Assistance
Act, 59 of 1992 (“
SAA
”).
She resided with her husband and the father of her minor children, Mr
Setshedi,
[3]
On 1 February 2006 the applicant employed the third respondent.
Accordingly, her entitlement to child support grants lapsed.
She
nevertheless continued to receive the grants, in breach of the SAA.
When this came to light, the applicant brought the third
respondent
before a disciplinary hearing during 2008 on the charge of fraud
alternatively breaching the applicant’s disciplinary
code in
receiving child support grants in contravention of the SAA.
[4]
In that 2008 disciplinary hearing, the third respondent contended
that she had informed the agency responsible for distributing
SAA
grants, South African Social Security Agency (“
SASSA
”),
that she no longer qualified for the grants. To this end she tendered
two letters from SASSA dated 2 October 2006, in
respect of each of
her children, on face value of which SASSA confirmed that the third
respondent no longer qualified for the grants.
[5]
The chairperson of the 2008 internal disciplinary hearing, found the
third respondent not guilty of fraud, since she did not
make any
misrepresentation. He still found her guilty of receiving SAA grants,
which constitutes an offence in terms of the applicant’s
disciplinary code. Ultimately the chairperson held that
dismissal was not warranted and he recommended the imposition of
a
final written warning, which recommendation the applicant accepted.
[6]
During 2010, Mr Setshedi who was then the ex-husband to the third
respondent, informed the applicant that he had assisted the
third
respondent to forge the SASSA letters, as tendered by the third
respondent during the 2008 disciplinary hearing. The third
respondent
was charged by the applicant with five acts of disciplinary
misconduct relating,
inter alia
, to fraud and forgery in that
she had forged the SASSA letters and presented them into evidence at
the 2008 disciplinary hearing.
Following a disciplinary hearing the
third respondent was dismissed of these charges on 15 September 2010.
She referred an unfair
dismissal dispute for conciliation and
thereafter for arbitration. The second respondent found the dismissal
to have been substantively
unfair and ordered the applicant to
re-instate her. The applicant initiated the present review
application.
Chief
findings of the second respondent and grounds for review
[7]
On
a conspectus of the award it is apparent that the commissioner’s
overall finding of double jeopardy is premised on the
following
findings:
1.
The chairperson of the first disciplinary
hearing made a “pertinent finding” that the SASSA letters
were genuine and
that they had not been fraudulently obtained by the
third respondent, pursuant to a hearing where the applicant was
afforded the
opportunity to adduce evidence about the authenticity of
the letters.
2.
Implicit in the aforesaid findings is a
finding that the charges in the both disciplinary enquiries related
to the same offence.
3.
The applicant’s disciplinary code
precluded the holding of a second hearing since it does not
specifically provide for such
eventuality.
4.
Mr Setshedi, who provided the applicant
with the information that resulted in the second disciplinary
hearing, was not reliable
since he had animosity toward the third
respondent.
GROUNDS
OF REVIEW
[8]
The applicant submitted that the commissioner’s conduct in this
instance constituted misconduct, a gross irregularity
and an excess
of his powers and that the commissioner came to a conclusion that a
reasonable decision maker could not reach. In
particular, the
applicant submitted that the award was irregular as a result of the
commissioner’s decision making process
that was wanting to the
extent that the failed to properly appreciate the legal and factual
nature of the application of the legal
principles relating to double
jeopardy and he failed to follow the binding precedents in that
regard. The applicant contended that
the commissioner’s finding
of double jeopardy, and his reasons for that finding, had no support
on the facts or in law.
In that regard the applicant submitted
that:
1.
The commissioner erred insofar as he held
that the charges that formed the subject to the first hearing were
the same as in respect
of the second hearing. On the basis of the
common cause evidence before the commissioner, as set forth above, it
is clear that
the subject of the first hearing was the applicant’s
conduct in receiving child support grants after she became employed
by the applicant. This was not the basis of the second hearing, which
concerned the applicant’s conduct in tendering forged
evidence;
i.e. the SASSA letters; at the first hearing.
2.
The double jeopardy rule only comes into
consideration in instances where an employee is recharged for the
same conduct or offence
that formed the subject of a previous hearing
– not in instances such as the present where the second hearing
concerns different
conduct.
3.
There is no indication on the record, in
particular on the basis of the transcription or the outcome of the
first (2008) disciplinary
hearing, that the authenticity of the SASSA
letters was in dispute at the first disciplinary hearing. As is
confirmed by the commissioner’s
finding in par.40 of the award
the possibility that the letters had been forged only came to the
applicant’s knowledge some
years later. That combined with the
fact that the SASSA letters did not form the basis of the charges in
the first hearing, shows
that it is most unlikely that the applicant
would have challenged the authenticity of the SASSA letters at the
first disciplinary
hearing. Accordingly, the commissioner’s
finding that the applicant should have challenged the authenticity of
the letters
at the first hearing is not a reasonable one on the facts
at hand.
4.
Regardless, on the basis of the written
outcome of the first hearing, in particular par.11 thereof as relied
upon by the commissioner,
there is no indication of any finding, let
alone a “pertinent finding”, by the chairperson of the
first disciplinary
hearing that the SASSA letters were genuine.
5.
As is confirmed by the commissioner’s
finding in para 40 of the award, if Mr Setshedi had not approached
the applicant during
2010 the second disciplinary hearing would
probably not have taken place. In the absence of evidence to
the contrary it is
therefore apparent that the applicant only
reasonably became aware of the issues surrounding the authenticity of
the SASSA letters
during 2010. Accordingly the time delay between the
first and second enquiries did not in the circumstances preclude the
applicant
to convene the second enquiry.
6.
As is further confirmed in the award, the
applicant’s disciplinary code did not make provision for the
holding of a second
disciplinary enquiry. T
he commissioner
then concludes that the absence of such provision in the applicant’s
disciplinary code constituted a “stumbling
block” for the
holding of a second disciplinary enquiry.
7.
The applicant’s disciplinary code did
however not contain any such express or implied prohibition.
Accordingly, since
the holding of a second disciplinary enquiry was
not
ultra vires
the applicant’s disciplinary code and the disciplinary code was
therefore not a “stumbling block” for the holding
of a
second enquiry the commissioner misconstrued the case law he relied
on.
8.
The commissioner’s oblique finding that the information given
to the applicant
by Mr Setshedi may not have been reliable is a
further factor that he takes into account in concluding that the
second hearing
constituted double jeopardy. In this instance the
commissioner seems to suggest that a second enquiry will only be
competent in
instances where an employer is satisfied on a balance of
probabilities, in advance of the second hearing, of the veracity of
the
allegations/information that form the basis of the charges. There
is no legal basis in support of such conclusion.
9.
In the final analysis the allegations that formed the subject of the
second hearing
was neither canvassed during the first enquiry nor was
any finding made in respect thereof. The said allegations only came
to the
applicant’s reasonable knowledge after conclusion of the
first enquiry and then formed the basis of different charges. The
holding of a second disciplinary hearing is not prohibited under the
applicant’s disciplinary code. Accordingly the holding
of a
second hearing was fair in the circumstances and did not constitute
double jeopardy.
[9]
It was the third respondent’s argument that the award granted
by the second respondent was both reasonable and well considered.
The
following are grounds submitted in support of the argument above:
1.
The first letters dated 02 October 2006,
and tendered as evidence during the first disciplinary hearing, were
accepted as exhibits
without the applicant exercising its rights to
challenge their authenticity and or submitting evidence to disprove
their contents.
In this regard, nothing prevented the applicant from
leading evidence of the witnesses called in the second disciplinary
hearing.
The applicant therefore failed to put the said evidence in
dispute when it should as it would have been fair to do so. On this
aspect it is submitted that had the applicant dealt with these at
that stage justice would have been achieved as applicant ought
to
query same without being assisted.
2.
It was further clear that the production of
the October 2006 letters and the admission thereof into evidence
during the first disciplinary
hearing, indeed influenced the outcome
of the 2008 disciplinary hearing, thereby warranting a lesser
sanction to a dismissal. This
piece of evidence played a significant
role in the determination of an appropriate sanction.
3.
The applicant argument that the third
respondent was disciplined on the basis of different charges, will
not hold, on the grounds
that the new charges were designed and
formulated on the basis of documents that had already been presented
in a previous disciplinary
hearing and which documents, the applicant
had failed to disprove. It is not logical to argue that the third
respondent had committed
another offence when charged subsequently in
2010.
4.
The circumstances above, if accepted, as
proposed by the applicant would leave the applicant with two
materially conflicting records
in that: the first disciplinary
hearing accepted the evidence of the 2006 letters and then proceeded
to subsequently dismiss same
as forged. In the second disciplinary
hearing in 2010. It is noteworthy that this was done under a new
charge and may therefore
not be construed as rectification of the
previous record.
5.
Further it is noteworthy that the reason
for the institution of the second disciplinary hearing, the
circumstances that were prevalent
as between the third respondent and
the applicant’s witness, the respondent’s estranged
spouse, also taking into account
the lapse of time prior to
institution of same, the second charge was thus malicious and
unfounded and should be treated with all
caution and the rational
thereof was clearly apparent.
6.
Further, when one takes into account the
effluxion of time and the fact that the witness, Mr. Setshedi had
confessed to forging
documents and implicating the applicant with a
clear objective of causing her to be dismissed the more the motive
becomes clearer
and injustice kicks in. This is very critical in this
review process and it is submitted that on this basis alone the
review application
stands to be dismissed.
7.
Furthermore, it is submitted and agreed
with the commissioner’s view that information by Mr Setshedi
may not have been reliable.
Upon careful ordinary scrutiny and on
authenticity, the 2006 letters appears more legitimate than the 2007
letters which the applicant
based their case upon. The argument by
the applicant that the second hearing was about forged evidence, that
is, SASSA letters
and the first being on receiving grants only and
this going into the merits as suggested, which argument is denied, it
is submitted
by third respondent that this will further be prejudice
when the issue of authenticity of these documents are
res
judicata
by the previous finding
properly adjudicating on the matter..
8.
In the final analysis on the forgery issue
there remains no evidence at all that the third respondent did in
fact forge SASSA documents
and any allegations made in that regard
should be treated with caution same deserves thus leading not to
accept same as truthful
and assistive to obtaining justice of any
offender charged.
9.
Further when one weighs both hearings there
seems to be more to the witness Mr Setshedi than the third respondent
particularly regarding
forging of documents. The evidence given by Mr
Setshedi had a motive clear enough not to allow same to continue to
prejudice third
respondents life.
Evaluation
[10]
Section 145 of the Act on the basis of
which this application brought and to the extent relevant here states
that:
‘
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
(b)
that an award has been improperly
obtained.’
[11]
In
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others,
[2]
this
Court held per van Niekerk J that:
‘…
.
section 145 requires that the outcome of CCMA arbitration proceedings
(as represented by the commissioner’s decision) must
fall
within a band of reasonableness, but this does not preclude this
Court from scrutinising the process in terms of which the
decision
was made. If a commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant,
or the
commissioner commits some other misconduct or a gross irregularity
during the proceedings under review and a party is likely
to be
prejudiced as a consequence, the commissioner’s decision is
liable to be set aside regardless of the result of the
proceedings or
whether on the basis of the record of the proceedings, that result is
nonetheless capable of justification.’
[3]
[12]
The applicant’s contention that the
commissioner’s finding of double jeopardy, and his reasons for
that finding, had
no support on the facts or in law needs to be
considered first. The allegations in support of the first misconduct
of 2008 pertained
to a failure of the third respondent to inform
SASSA that she had found employment which disqualified her to
continue to receive
the child support grant as a result of which
SASSA continued to pay the grant into her banking account. It was in
defence of those
allegations that she procured and produced the two
letters allegedly obtained from SASSA. The misconduct was
consequently constituted:
12.1
by a failure to report being disqualified
to continue to receive the grant –
Commisio
per omissiones;
12.2
by keeping and using the grant proceeds;
12.3
in the period 2006 until the payment in
terms of the grant was stopped and
12.4
against SASSA, in circumstances which
violated the policy of the applicant.
[13]
The allegations of the second act of misconduct pertained to:
13.1
the making of false declaration by word and
conduct to the commissioner;
13.2
an arbitration hearing held in 2008 and
13.3
procuring an arbitration award in 2008 and
in her favour through deceitful means.
[14]
In this simplified description, the two acts of the alleged
misconduct were clearly distinguishable from each other,
notwithstanding
any similarities in their facts and the role players.
The second respondent misdirected himself when he conflated the two
acts
of misconduct into one. In any event an employee may be charged
for a misconduct committed during a disciplinary hearing as the
employer employee relationship subsists even during the disciplinary
hearing. I am accordingly in agreement with the
applicant’s
contention that the commissioner’s finding of double jeopardy,
and his reasons for that finding, had no
support on the facts or in
law.
[15]
Section 145(2) (b) of the Act illuminates the issue more in this
matter as it states that a defect in an award as referred
to in
subsection 1 means that the award has been improperly obtained. In
Moloi
v Euijen NO and Another,
[4]
this Court per Maserumule AJ held that:
‘
Section
145 (2) (b) must be read in the context of the whole section. The
grounds of review set out in the section distinguish between
misconduct by the commissioner (s 145(2) (a) (i) and the improper
obtaining of an award as a separate ground of review (s 145(2)
(b).
In my view, the latter subsection contemplates a situation where the
one party to the arbitration, through fraud or other
improper means,
obtains an award in his or her favour. This can either be in the form
of a bribe or by misleading and false or
fraudulent representations
which lead to an award being granted in that party’s favour. It
is different, in my opinion, from
a charge that the commissioner
misconducted himself, although it is quite possible that the
commissioner`s misconduct may give
rise to the improper obtaining of
an award.’
[16]
The applicant was therefore entitled to subject the third respondent
to a second internal disciplinary hearing to deal with
new and
different accusations it had just received from her ex-husband.
The
issue of the applicant’s disciplinary code precluding the
holding of a second hearing since it did not specifically provide
for
such eventuality, is therefore no longer a moot point. The facts of
this matter show that the second charge was triggered by
a subsequent
report received by the applicant. Therefore, even if it was held that
the second enquiry exposed the third respondent
to a double jeopardy,
its holding would be fair in that it would accord both parties a
chance to ventilate the new issues that
had arisen.
[17]
The evidence on the first arbitration hearing is clear, namely that
documents handed in were taken to be what they purported
to be. No
one challenged the authenticity of the two letters handed in by the
third respondent. The applicant had no basis to doubt
the
authenticity of the letters until Mr Setshedi came forward with his
allegations. As soon as he made the disclosure, the applicant
acted
on it.
Accordingly, the commissioner’s
finding that the applicant should have challenged the authenticity of
the letters at the first
hearing is not a reasonable one.
[18]
The time span between the two hearings was
not a design of the applicant as it did not know of the allegations
by Mr Setshedi. Any
prejudice suffered by the third respondent due to
the time lapse of about two years, while possibly being a factor,
relates to
the fairness of a sanction, in the event the third
respondent should be found guilty of the misconduct charged. From the
perspective
of the applicant, the second charge was neither malicious
nor unfounded. Seen from the behaviour of Mr Setshedi though, his
evidence
should be treated with all caution and the rational thereof
was clearly apparent. He meant to do his estranged wife the most
horrible
harm.
[19]
The next probe turns on whether the applicant’s evidence on the
alleged misconduct of 2010 was sufficient to justify
the third
respondent being found guilty. In opposing this application the third
respondent has contended that information by Mr
Setshedi might not
have been reliable. Further that upon careful ordinary scrutiny and
on authenticity, the 2006 letters appeared
more legitimate than the
2007 letters which the applicant based their case upon. And also
that, in the final analysis on the forgery
issue there remains no
evidence at all that the third respondent did in fact forge SASSA
documents.
[20]
In paragraph 41 of the award the second respondent made various
findings including that:
‘
i.
The officers from SASSA were adamant that the two contested letters
could
not have emanated from SASSA, but it emerged under cross
examination by Mr Manyike that SASSA had been flooded with social
grant
applications, and that it had many teething and administrative
problems;
ii.
This means that the evidence given by the applicant, supported by her
witness, Ms Mtsweni, although both may be criticised in various
respects, that they had gone to SASSA where the applicant had
obtained
the two contested letters, may be true;
iii.
The evidence of Ms van der Spuy that the
applicant would not have been charged criminally if she had produced
the two letters dated
2006-10-02, which she did not, is probably the
strongest evidence against the applicant’s version that the two
letters were
authentic and not fabricated.’
[21]
The second respondent found that the officers from SASSA were adamant
that the two contested letters could not have emanated
from SASSA. He
then neutralises this finding by concluding that it emerged under
cross examination by Mr Manyike that SASSA had
been flooded with
social grant applications, and that it had many teething and
administrative problems. It is difficult to understand
what the
latter conclusion had to do with the former finding. No link has been
shown to exist between a flood of applications received,
teething and
administrative problems and the two letters. The commissioner’s
reasoning is at odds with the very evidence
led by the applicant and
found to have been strongly or adamantly tendered. The commissioner
correctly finds that the third respondent
and her witness’s
evidence had a number of discrepancies. He found that Ms van der Spuy
presented the strongest evidence
on the two contested letters
compared to that of the third respondent. How the commissioner ended
with a finding in favour of the
third respondent in this regard is a
clear manifestation of his failure to apply his mind appropriately to
the proven facts.
[22]
A further consideration which militates against the version of the
third respondent being probable is the second paragraph
the two
letters. It remained common cause that in 2006 the grant was not
stopped but continued to be paid into the banking account
of the
third respondent. Yet this paragraph states that the grant was
stopped. It is common cause that the grant was stopped in
2007. This
is when the authentic letters are said by Mr Setshedi to have been
issued.
[23]
I, accordingly, conclude that the probabilities of this matter
favoured the version presented by the applicant. The second
respondent failed to apply his mind to the proved evidential material
and therefore committed a gross irregularity as he ought
to have
found that the guilt of the third respondent was proved on the
accepted evidence. The misconduct was of a serious nature
as it
involved the forgery, uttering and dishonesty, with the concomitant
bring about of disrepute to the name of the applicant,
as a
government institution. The result is that this Court is bound to
review and set the award aside.
[24]
The Court then issues the following order:
1.
The arbitration award dated 25 May 2011,
issued by the second respondent in this matter is reviewed and set
aside.
2.
In its place, it is found that the
dismissal of the third respondent by the applicant was substantively
fair.
3.
No costs order is made.
______________
Cele J
Judge of the Labour
Court of South Africa
Appearances:
For
the Applicant:
Mr. Riaz Itzkin
Of
Edward Nathan Sonnenburgs Inc.
For
the Respondent:
Adv.R Letsipa
Briefed
by T. T Hlapolosa Inc.
[1]
Act No 66 of 1995.
[2]
[2009]
11 BLLR 1128
(LC) .
[3]
Id
at para 17.
[4]
(
1997)
18 ILJ 1372 (LC) at 1379A-C, See also
Graff-Reinet
Municipality v Jansen
1917 CPD 604
at 606 and
Bester
v Easigas (Pty) Ltd and Another
1993 (1) SA 30
(C)at 38 A-C.