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[2013] ZALCD 27
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Gaga v Ethekwini Municipality and Others (D 397/10) [2013] ZALCD 27 (30 September 2013)
Reportable
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH
AFRICA, DURBAN
JUDGMENT
Case No: D397/10
In the matter between:
KHULULEKILE ANDREW GAGA
...................................................................
Applicant
and
ETHEKWINI MUNICIPALITY
..............................................................
First
Respondent
COMMISSIONER, BENITA WHITCHER
.......................................
Second
Respondent
THE SOUTH AFRICAN LOCAL
GOVERNMENT BARGAINING COUNCIL
........................................
Third
Respondent
Heard: 30 April 2013
Delivered: 30 September 2013
Summary: Review application –
a gross irregularity as contemplated by s145(2)
(a)
(ii), is
committed when the arbitrator has misconceived the nature of the
inquiry or arrived at an unreasonable result - a result
will only be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator
– the
applicant failed to demonstrate the commission of any gross
irregularity by the second respondent – review dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
CELE,J
Introduction
[1] In this application it is intended
to review and set aside an arbitration award dated 02 March 2010
issued by the second respondent
under the auspices of the third
respondent. The application before me is one in terms of section 158
(1) (g) of the Act
1
.
The applicant simultaneously seeks condonation for the late filing of
the review application. The application was opposed by the
first
respondent, the Municipality as an erstwhile employer of the
applicant and in whose favour the arbitration award in this
matter
was issued.
Factual Background
[2] The applicant was an employee of
the first respondent, employed as an artisan plumber, with two
general workers assigned to
assist him in carrying out his duties.
Also assigned to him was an official light delivery vehicle with its
trailer, and working
equipment or machinery. The applicant was also
responsible for the supervision of the general workers assisting him
on site.
[3] On 16 October 2008 in the
afternoon the applicant drove back from the site he had been working
at. On his arrival at the depot
he did not drive straight into where
he would ordinarily park the work’s van. He instead parked the
van alongside his private
motor vehicle in a public parking outside
of the depot gate. There were two employees with him who worked as
general workers. He
then offloaded a breaker, a heavy power tool,
from the van and put it into the boot of his motor vehicle and he
closed the boot.
The breaker was normally transported in a trailer
and it would be locked therein for safe keeping. It was worth about
R52,000.00
[4] The then Regional Engineer for
water operations, Mr Nandlal was in the vicinity at the time and
because he became suspicious
of the activities of the applicant, he
called a security guard with whom he approached the applicant, who
when initially confronted
said that he had put papers in the boot. Mr
Nandlal had formulated an opinion that whatever was put in the boot
by the applicant
must have been pretty heavy because the car sagged
in when the boot was loaded. The boot of the applicant’s
private car was
opened and a breaker was found inside it. A cellular
telephone was used to capture photographs of the breaker in the boot
and to
capture the scenery around. The motor vehicle of the applicant
was parked at an angle from the security hut and was therefore not
very easily visible from that hut. The applicant explained that he
wanted to take the breaker for repairs at Springfield. Mr Nandlal
instructed the applicant to take the breaker inside the depot for
testing if it was in a working mode. He said that he waited with
a
plumber to test the breaker but the applicant did not bring it in at
that time. Mr Nandlal observed that when the breaker was
finally
brought in it had no plug. Otherwise it evinced no signs of any
apparent defects.
[5] The first respondent had a working
policy that an incident report form had to be completed to report any
tool that had become
defective. The applicant had not yet completed
the incident report when he loaded the breaker into his motor
vehicle. He had however
given Mr Allan, a supervisor, a missed call,
hoping that Mr Allan would call him back, at which instance,
according to him, he
would have reported the defective breaker. He
did not resort to the use of his two-way radio to report the defect
as Mr Allen did
not have a radio in his work-car. Nor did he see it
fit to call the control room for people there to call Mr Allen for
him. He
believed that sending a miss call was one of the permissible
options open to him to use. As he arrived at the front parking
outside
the depot he saw that motor vehicles used by his seniors were
not parked on the yard. He concluded then that the seniors had left
the depot and so he could not go to them to report the broken
breaker.
[6] The matter was reported to the
South African Police Services, the SAPS, who on 20 October 2008
arrested the applicant for a
criminal case emanating from this
incident. On the following day he was released on bail and on 22
October 2008 he resumed his
regular work pattern for which he was
supplied with another breaker to work with. Also on 22 October he
completed such a report,
putting the date of the incident as 16
October 2008. The criminal charge was later withdrawn for lack of
evidence. The first respondent
also charged him with two counts of
misconduct, described as:
‘
1.
Failure to conduct himself with honesty and integrity by removing
without authority an electric breaker belonging to the Employer;
2.
Failure to report, follow all lawful job instruction given by
personnel having authority to do so, by failing to submit an incident
report indicating that the electric breaker was faulty.’
[7] The applicant was found guilty of
the first charge and he was dismissed by the first respondent on 30
March 2009 following that
disciplinary hearing. This was some five
months after the commission of the alleged misconduct. By then he had
been employed by
the first respondent for a period of about nine
years, with a clean disciplinary record. The applicant took the
matter to conciliation
by the third respondent, where the issue in
dispute was whether the dismissal was substantially fair.
Conciliation failed to resolve
the dispute and he referred it to
arbitration. The second respondent found that applicant’s
dismissal was fair and dismissed
his claim. The applicant initiated
the present application.
Chief findings of the second
respondent
[8] The second respondent found, inter
alia, that:
‘
It
is important to note that the charge against the employee was that he
failed to conduct himself with honestly and integrity by
removing
without authority an electric breaker, serial number CSH27 belonging
to the respondent ‘.Accordingly, the respondent
was not obliged
to prove attempted theft or even the actual intended dishonest
purpose on the part of the employee; merely that
the employee removed
the electric breaker in dishonest circumstances. In the context of
this, it is my finding that the following
salient facts were proved
by the respondent:
It
was common cause that the employee attempted to remove the breaker.
There
were no justification at all for the employee to take the breaker in
his private vehicle and at the time he attempted to
do so. He was
only due to return to work on the Monday night and so the respondent
would have had a number of days available
to it to repair or
exchange the breaker for the employee. The employee was well aware
that there were procedures to be followed
in the case of damaged and
defective equipment and he did not attempt to follow any these
procedures. He was also aware that
the procedures precluded him from
taking the breaker in his personal vehicle to Springfield.
The
employee lied about the contents of his boot when confronted by
Nundlall (sic). If his intentions had been honest, why did
he
attempt to hide the fact that he had just loaded the breaker into
his boot by claiming he had only loaded paper into his boot.
Moreover, he continued to lie about his actions. His claims that he
had called Allen to inform him about his intentions just
before he
got to the depot in the afternoon and that he checked to see if
Allen was in the depot by looking over the wall of
the car park into
the depot, were shown to be highly improbable by the respondent.
It
was more probable than not that the breaker was not innocently
damaged. Nxumalo testimony that they did not use the machine
that
day and that it was not defective the last time they used it was not
challenged.
In
the light of all these surrounding circumstances, taken collectively
and cumulatively, I have to accept the inference sought
by the
respondent, namely that the employee was attempting to remove the
breaker for dishonest reasons. As I stated, the respondent
was not
obliged to prove attempted theft. Accordingly, the employee’s
contention that it was highly improbable that he was
attempting to
steal the breaker because he loaded it in full view of his assistants
and there were easier alternative ways for
him to steal it does not
assist him. I also stated that the respondent was not obliged to
prove a specific dishonest purpose on
the part of the employee.
However, as an aside, the most logical conclusion that arises from
the surrounding circumstances in this
case is that the employee was
not attempting to steal the breaker but to remove it temporarily for
other dishonest purposes (probably
to use it for personal purposes or
to outsource it temporarily) and return it on the Monday. That is why
he blatantly removed it
in full view of his assistants he intended to
bring it back.
The
next inquiry is whether it was fair to dismiss the employee and the
key question here is whether the trust relationship has
been
irretrievably broken. …the question whether the dismissal was
fair must be judged in the context in which the misconduct
occurred
and the impact this had on the employment relationship. ….all
relevant factors must be considered and weighed up.
Case law has held
that these factors include the nature of the misconduct, the context
in which it was committed, and the nature
of the employee’s
job: whether he occupied a position of trust and was required to work
independently and unsupervised, his
service and the parties’
assessment of the relationship. …not all dishonesty related
offences automatically attract
dismissal. Each case must be
determined on their own merits, including the nature and extent of
the dishonesty, the value involved,
whether the employee showed
remorse or continued to lie and whether the employer can objectively
trust him again considering these
factors.
Nundlall
testified that if the employee returned to work they would have an
operational relationship because he is the area engineer
and oversees
the operational running of the depot. He said if the employee was
found guilty he would not be able to trust him.
Especial if I find
that the employee had in fact lied when first confronted and had
continued his lies. He said “Why didn’t
he come clean
when I first asked him about what’s in his boot”, in his
view the employee’s long service would
not make a difference to
his feelings because ‘with long service he should know better’.
Allen testified that he had
only known the employee for a year (the
employee had worked in another respondent service unit before this)
and he would not be
able to trust him again considering he had broken
the trust within the year. The employee contended that the respondent
cannot
claim that the trust relationship has been destroyed because
he was permitted to work as usual until his dismissal and he has 9
year service. The employee further contended that the dismissal was
not justified because another departmental employee was found
guilty
of dishonesty but only given a final written warning. The other
employee was found guilty of performing a private job for
a metro
client and charging the client R300.00.
Clearly,
the nature and extent of the dishonesty in the other employee’s
case is not comparable to, and is therefore distinguishable
from, the
nature and extent of the employee’s dishonesty in this case.
The fact that the employee continued to work does
not cancel the fact
that his operational managers, that is the people he has to work with
daily and who are in charge of him, feel
they are in a situation
where they will have to continually scrutinize all his future
averments and actions closely. In any event,
the employee was found
to have lied and continued to lie in this process and showed no
remorse for his actions. Accordingly, the
fact that the employee
continued to work for a while before his services were terminated
does not establish that the trust relationship
was not destroyed. The
nature of the employee’s job was such that he works
unsupervised and thus a lot of trust is placed
in him. He himself
showed that the nature of his work lent itself to dishonest
opportunities (his description of the alternative
scheme that was
available to him).
In
light of all these circumstances I find that the trust relationship
has destroyed the employee’s service was not sufficient
to
outweigh or rehabilitate this. If the employee had come clean,
admitted his real intention, shown remorse and not put the respondent
through this process, maybe the outcome would have been different and
an alternative sanction may have been more appropriate. But
he did
not bring me or the respondent into his confidence; and I was not
able to assist him, despite the very competent efforts
on the part of
his representative.’
Grounds for review
[9] It was the applicant’s
submission that the second respondent’s award was irrational
and one which a reasonable decision
maker could not reach, inter
alia, for the following reasons:
She failed to draw the necessary
adverse inference from the contradictory evidence that was tendered
by the employer’s main
witness, Mr. Nandlal with regards to
whether the breaker was tested or not. The evidence that was placed
before second respondent
indicated that Mr. Nandlal had in the
criminal case told the Court that he tested the machine and found it
to be in working order.
When he gave evidence, both in the internal
disciplinary hearing and during the arbitration hearing his version
changed to that
he could not test the breaker to establish if it was
working or not because it had no plug. Had the second respondent
considered
this material contradiction she would have had no option
but to find that Mr. Nandlal was an untrustworthy witness and that
his
version should have been rejected.
The second respondent further failed
to take into account that evidence of the photographs indicated that
the breaker had no plug
and consequently applicant’s version
that it was faulty was true.
The second respondent drew
unreasonable inferences regarding the purpose for which applicant
removed the breaker. She suggested
that the purpose of removing the
breaker was to use it for personal purposes or to outsource it
temporarily and return it on
Monday. No evidence was led to suggest
that a faulty breaker could be used for personal purposes or could
be outsourced at all.
Even worse, second respondent in her award
seems to admit that the breaker was removed in full view of
applicant’s assistants
and yet the employer’s main
witness contended that applicant had hidden from the other fellow
employees what he was doing
in the boot of his vehicle. It is
therefore an irregularity that second respondent would in one
breathe find that applicant removed
the breaker for dishonest needs
whilst on another finding that the breaker was removed in full view
of applicant’s fellow
employees.
It is the applicant’s
contention that the breaker was removed in order to be sent for
repairs and that he had no intentions
of dishonestly dealing with
the machine in any other way.
The second respondent dismally failed
to deal with the inconsistency aspect that was raised by the
applicant. The nature of applicant’s
case was that two of his
fellow employees were charged with a similar offence but received
final written warnings and salary
suspensions instead of dismissal.
The First Respondent did not dispute
by leading of evidence or by argument the fact that a similar
offence in its employ is not
met with a sanction of dismissal.
The condonation application
[10] The review application was filed
some 14 days out of time. The explanation for the delay is that the
applicant relied on his
trade union to initiate the review
application after the union had represented him at the arbitration
hearing. When he realised
that the union did not file the review
application he instructed his current attorneys and the application
was filed with no further
delay. The matter of the applicant is
somewhat arguable. No litigant stands to suffer any prejudice as a
result of the review application
filed late. As a matter of fact the
condonation application is not opposed by the first respondent. The
interests of justice are
not averse to the application being granted.
Condonation for the late filing of the review application is granted.
Opposition to the review
application
[11] Considering the grounds of the
review application, the first respondent submitted that this
application was ill founded, unsubstantiated,
without merit, and that
therefore the applicant was not entitled to any of the orders sought
in the notice of motion. It was said
that the second respondent dealt
fully with the evidence presented by the parties and the issues
raised in argument. There was
overwhelming evidence of dishonesty in
the manner in which the applicant conducted himself on the 16 and 22
of October 2008. The
submission said that the second respondent
adopted a proper and fair arbitration procedure. The arbitrator was
said to have correctly
pointed out that a trust relationship between
the applicant and the second respondent had been destroyed and that
the applicant’s
long service was not sufficient to outweigh the
incident. The position held by the applicant was said to demand
nothing less that
honesty, and absolute transparency as the applicant
was entrusted with the first respondent’s valuable property and
responsible
to supervise junior staff. The first respondent contended
that there was no evidence led in arbitration proceedings to support
the allegation that the first respondent was inconsistent in applying
dismissal as a sanction. Even if there was evidence led in
that
regard the claim of inconsistency would have failed.
Analysis
[12] The award being assailed was
issued by the third respondent which is a bargaining council. The
review application is accordingly
one in terms of section 158 (1) (g)
of the Act which reads:
‘
The
Labour court may, subject to section 145, review the performance
or
purported performance of any function provide for in this Act on any
grounds that are permissible in law.’
[13] Section 145 of the Act then lists
the grounds of review subject to which this Court may review the
performance or purported
performance of any function provided for in
this Act and to the extent relevant it reads:
‘
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.’
[14] In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
2
the Constitutional Court set a
standard for review by holding, inter alia, that section 145 of the
Act was suffused by the standard
of reasonableness. That standard lay
in asking whether the decision reached by the commissioner was one
that a reasonable decision
maker could not reach. In
Herholdt
v Nedbank Ltd
3
,
the Supreme Court of Appeal held, with
respect to what constitute a gross irregularity in the conduct of the
arbitration proceedings,
that:
‘
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)
(a)
of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity as contemplated by s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be
unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material
errors of fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient
for an award to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable
.’
[15] In
Fidelity
Cash Management Services v CCMAand Others
4
the LAC had an occasion to resound the
following warning to review Courts:
‘
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA commissioner,
the
Court feels that it would have arrived at a different decision or
finding to that reached by the commissioner. When that happens,
the
Court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in terms of
the Act
primarily given to the commissioner and that the system would never
work if the Court would interfere with every decision
or arbitration
award of the CCMA simply because it, that is the Court, would have
dealt with the matter differently…’
[16]
In
Ellerine Holdings Ltd v CCMA and Others
,
5
the Labour Appeal Court had occasion to expand on the
meaning of ‘gross irregularity’ as expounded in the
Sidumo
test in the
following terms:
‘
When
all of the evidence is taken into account, when there is no
irregularity of a material kind in that evidence was ignored, or
improperly rejected, or where there was a full opportunity for an
examination of all aspects of the case, then there is no gross
irregularity’.
[17] Then in
Betel
v Astral Operations Ltd,
6
the Court commenting on an appropriate
approach to review applications also said that:
‘
[T]he
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be
correct by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected
.’
[18] In these proceedings it has to be
determined whether the second respondent failed to have regard to
material facts of this
matter as that would constitute a gross
irregularity in the conduct of the arbitration proceedings as
contemplated in section 145
(2) (a) (ii) of the Act. For a defect in
the conduct of the proceedings to amount to a gross irregularity, the
second respondent
must have misconceived the nature of the inquiry or
arrived at an unreasonable result. Also, should this Court, in
assessing the
reasonableness or otherwise of the assailed award, feel
that it would have arrived at a different decision or finding to that
reached
by the second respondent, the Court will bear in mind that
the task of determining the fairness or otherwise of dismissal is
primarily
given to the second respondent and that the system would
never work if the Court were to interfere with every decision or
arbitration
award of the commissioners simply because the Court,
would have dealt with the matter differently.
[19] In respect of the first and
second review grounds the applicant said that if the second
respondent had considered material
contradiction in the evidence of
Mr Nandlal, she would have had no option but to find that Mr Nandlal
was an untrustworthy witness
and that his version should have been
rejected. He said further that the second respondent failed to take
into account that evidence
of the photographs indicating that the
breaker had no plug and consequently applicant’s version that
it was faulty was true.
The applicant however, failed to demonstrate
the relevance of such material contradictions when such evidence is
seen against that
his admissions together with evidence of the first
respondent that:
Upon arrival at the depot the
applicant went to park the work-van at a staff parking bay instead of
driving into the depot
He off-loaded the breaker from the
trailer where it would be lawfully carried and he stored it into the
boot of his car;
The breaker was very heavy and the
first respondent had its general workers who could attend to the
transportation, if needs, be
of the breaker;
There was an operational agreement of
the plumbers regulating the reporting, repair and replacement of
defective breakers;
In his own evidence the applicant saws
that all senior personnel who could authorise him to take the breaker
for repairs were all
gone. He could not therefore do it lawfully;
He had not used the breaker for the
last three days. He would not use it on the next day as he would be
off-duty and there was a
weekend after that;
There were instances of electricians
coming to the depot or even on site to effect repairs to tools. By
the time he came back to
work, the breaker could have been repaired
or replaced with no hustle, and
When confronted by Mr Nandlal he
allegedly gave a false explanation of what was loaded into the boot
of his vehicle. He was quoted
as having said that he had loaded
papers in the boot.
[20] When all the
evidence was seen together and not in peace-meal fashion the second
respondent could not
find that Mr Nandlal was an untrustworthy
witness and that his version should have been rejected. To the
contrary, the second respondent
was faced with probabilities
overwhelmingly favouring the acceptance of the evidence of the first
respondent. When considering
the alleged failure to take into account
that evidence of the photographs indicating that the breaker had no
plug and consequently
applicant’s version that it was faulty
was true, it had to be considered as well that the applicant was the
last person to
have used the breaker. He was also its custodian as he
had to lock it in the trailer at the end of the day. He had then to
explain
the circumstances leading to the disappearance of the plug
and not just to mention it as
a fact accompli
. He should have
known then when the plug went missing and why he never reported it
even before 16 October 2008. In my view, these
two grounds of review
have no merits.
[21]
For the
third ground of review, the second respondent is said to have drawn
unreasonable inferences regarding the purpose for which
applicant
removed the breaker. She suggested that the purpose of removing the
breaker was to use it for personal purposes or to
outsource it
temporarily and return it on Monday. It was said that no evidence was
led to suggest that a faulty breaker could be
used for personal
purposes or could be outsourced at all. It is necessary to refer to
the exact words of the second respondent
who said that:
‘
However,
as
an aside, the most logical conclusion that arises from the
surrounding circumstances
(my underlining) in this case is that the employee was not attempting
to steal the breaker but to remove it temporarily for other
dishonest
purposes (probably to use it for personal purposes or to outsource it
temporarily) and return it on the Monday. That
is why he blatantly
removed it in full view of his assistants he intended to bring it
back.’
[22] The finding on probabilities here
was an aside issue as clearly stated in the award. The possible
reason for the removal of
the other than for repairs had to be
explored to see if such removal was perpetuated with ‘honesty
and integrity’ as
was alleged in the charge sheet. An enquiry
into the honesty and integrity of a person somehow involves a
determination of what
goes on in the mind of that person. It is the
outward manifestation of what one does which gives an indication of
what might be
in the mind of a person at a given time. The second
respondent was faced with such an enquiry. As to whether the breaker
was removed
in full view of applicant’s assistants or that the
applicant had hidden from the other fellow employees what he was
doing
in the boot of his vehicle, is not an essential issue as the
applicant was not charged for theft of the breaker. The second
respondent
has thus committed no reviewable irregularity, in my view.
[23] The fourth submission by the
applicant was that the breaker was removed in order to be sent for
repairs and that he had no
intentions of dishonestly dealing with the
machine in any other way. In her award, the second respondent listed
alphabetically
four of what she called salient facts as having been
proved by the first respondent. She held that in the light of all
those surrounding
circumstances, taken collectively and cumulatively,
she had to accept the inference sought by the first respondent,
namely that
the applicant was attempting to remove the breaker for
dishonest reasons. She then concluded that the employee’s
contention
that it was highly improbable that he was attempting to
steal the breaker because he loaded it in full view of his assistants
and
there were easier alternative ways for him to steal it did not
assist him. The applicant has not demonstrated why it is that, in
his
view, a reasonable decision maker could never have arrived at a
similar conclusion. The submission by the applicant in this
regard
belongs to the appeal and not the review process. Accordingly it must
fail as a ground for review.
[24] The final submissions by the
applicant are that the second respondent dismally failed to deal with
the inconsistency aspect
that was raised by the applicant, it being
the nature of applicant’s case that two of his fellow employees
were charged with
a similar offence but received final written
warnings and salary suspensions instead of dismissal. He contended
that the first
respondent did not dispute by leading of evidence or
by argument the fact that a similar offence in its employ is not met
with
a sanction of dismissal. Having outlined the versions of the
parties on the applicability of the parity principle the second
respondent
said that:
‘
Clearly,
the nature and extent of the dishonesty in the other employee’s
case is not comparable to, and is therefore distinguishable
from, the
nature and extent of the employee’s dishonesty in this case.
The fact that the employee continued to work does
not cancel the fact
that his operational managers, that is the people he has to work with
daily and who are in charge of him, feel
they are in a situation
where they will have to continually scrutinize all his future
averments and actions closely. In any event,
the employee was found
to have lied and continued to lie in this process and showed no
remorse for his actions. Accordingly, the
fact that the employee
continued to work for a while before his services were terminated
does not establish that the trust relationship
was not destroyed. The
nature of the employee’s job was such that he works
unsupervised and thus a lot of trust is placed
in him. He himself
showed that the nature of his work lent itself to dishonest
opportunities (his description of the alternative
scheme that was
available to him).
In
light of all these circumstances, I find that the trust relationship
has destroyed the employee’s service was not sufficient
to
outweigh or rehabilitate this. If the employee had come clean,
admitted his real intention, shown remorse and not put the respondent
through this process, maybe the outcome would have been different and
an alternative sanction may have been more appropriate. But
he did
not bring me or the respondent into his confidence; and I was not
able to assist him, despite the very competent efforts
on the part of
his representative.’
[25] It is manifestly clear from the
award that the second respondent did not dismally fail to deal with
the inconsistency aspect
that was raised by the applicant. On the
contrary, the applicant dismally failed to demonstrate how a
reasonable decision maker
could have arrived at a conclusion
different to that reached by the second respondent, all evidence led
considered. The applicant
made a bold but unsubstantiated allegation
against the second respondent. This ground will suffer the same fate
as others.
[26] Accordingly, the second
respondent has not been proved to have failed to have regard to
material facts of this matter. The
second respondent has not been
shown to have committed a gross irregularity as contemplated by s145
(2)
(a)
(ii), as she has not been shown to have misconceived the
nature of the inquiry or arrived at an unreasonable result. The
result
she reached is not unreasonable because it is not one that a
reasonable arbitrator could not reach on all the material that was
before her. Therefore 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 of South
Africa.
Appearances:
For the applicant: Mr S Mhlanga of
Mhlanga Incorporated, Durban
For the first respondent: Ms S Jikela
Instructed by: Hughes-Madondo
Incorporated, Durban.
1
The
Labour Relations Act No 66 of 1995
2
[2007]
12 BLLR 1097
(CC) and (2007) 28 ILJ 2405 (CC
)
at para 106 to 109.
3
(701/2012)
[2013]ZASCA 97 (5 September 2013).at para.25.
4
[2008]
3 BLLR 197
(LAC) at para 98, and also (2008) 29 ILJ 964 (LAC).
5
2008)
29 ILJ 2899 (LAC) at 2906E-F.
6
[2011]
2 BLLR 129
(LAC) at para 18.