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[2014] ZALCJHB 113
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South African Post Office v Moleme and Others (JR1632/05) [2014] ZALCJHB 113 (6 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case No: JR1632/05
In the matter between:
-
SOUTH AFRICAN POST
OFFICE
Applicant
and
ABNER ANGEL MOLEME
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
COMMISSIONER ANGELA
SOLOMONS Third
Respondent
Date of hearing:
31 January 2014
Date of judgment:
6 March 2014
Summary: Review
application. Employee charged with fraud. Employer failing to prove
intention to defraud by the employee. The employee
making an
incorrect entry in the end of day report.
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This
is an application in terms of which the applicant seeks an order
reviewing and setting aside an arbitration award made by the
second
respondent (the Commissioner) under case number NW1383/05 on 18 May
2005 and for the same to be sent back to the first respondent
to be
determined by a different Commissioner.
Background facts
[2]
The
third respondent who prior to his dismissal was employed as a teller
at the applicant’s Kanana Post office in Orkney was
dismissed
for misconduct related to fraud. He was initially charged with
charges of misconduct which read as follows:
‘
Details
of alleged charges
Charge 01
Fraud- In that the
respondent, Mr A.A Moleme, on the 20
th
of March at the
Kanana Postpoint, indicated to the SA Post Office Ltd, that he paid
out R420.00 for Uthingo winning tickets, whilst
the end of day report
of the GVT system indicated a total payment of only R210.00. This
action by the respondent resulted in the
loss of R210.00 to the SA
Post Office LTD. As he did not reflect a surplus of R210.00 in his
balance for the 20
th
March 2004.
Charge 02
Negligence
:
In
that the respondent, Mr A.A Moleme, on the 02
nd
of March
2004 at the Kanana Postpoint, indicated to the SA Post Office LTD,
that he paid out R263.00 for Uthingo winning tickets,
whilst the end
of day report of the GVT system indicated a total payment of only
R163.00 to which he manually added R100.00 for
a lotto ticket already
validated by another outlet. This action by the respondent resulted
in the loss of R100.00 to the SA Post
Office.
[3]
The
employee was found guilty and dismissed. The notice of dismissal
reads as follows:
‘
Please
be advised that your services with the South African Post Office have
been terminated with immediate effect for the following
reason(s):
Fraud in that you on the
20
th
of March 2004 at Kanana Postpoint indicated to SAPO
that you paid out R428-00 for winning tickets, whist the end of day
report
of the GVT system indicated a total payment of only R210-00.
(Loss to be recovered from pension)’
[4]
The
employee being unhappy with the outcome of the disciplinary hearing
referred the matter to the CCMA for conciliation and thereafter
to
arbitration.
The grounds of review
[5]
The
applicant contends that the Commissioner committed reviewable
irregularity for the following reasons:
‘
20.1.
She
evidently overlooked overwhelming evidence tendered on behalf of the
applicant, which showed on the balance of probabilities,
that fraud
was committed. Instead she chose to believe the respondent who failed
dismally to lead any compelling or credible evidence
in defence.
20.2.
The arbitrator’s conclusion that what the respondent did merely
amounted to ‘human error’
was not justified in the light
of the evidentiary material placed at her disposal by the applicant.
20.3
She unjustifiably interfered with the applicant sanction of dismissal
in the circumstances where the
sanction was warranted given the
seriousness of the offence and the fact that the respondent was aware
of the rule.
The arbitration award
[6]
The
Commissioner in finding the dismissal to be substantively unfair
reasoned as follows:
‘
In
light of the evidence before me, I find that the respondent has
failed to prove on a balance of probabilities that the applicant
had
committed an offence of fraud. It is clear that the applicant had not
misrepresented any fact’; he made an error in not
capturing the
activity on the respondent’s End of Day Report. The respondent
also failed to prove that the applicant has
committed an offence of
fraud because if the respondent has suffered financial loss, it
cannot be regarded as fraud as the loss
was caused by a human error
by the applicant’.
Evaluation
[7]
The
test to apply in considering whether to interfere with the
Commissioner's arbitration award is that of the reasonable decision
maker as set out in the case of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
and confirmed by other authorities. The test is based on the enquiry
into whether the decision which is the subject of the review
is one
which a reasonable decision maker could not reach.
[8]
In
the present instance the essential question is whether the decision
reached by the Commissioner that the dismissal of the employee
was
substantively unfair is one which a reasonable decision maker could
not reach. The essential question is whether the finding
that the
applicant has failed to discharge his duties of showing on the
balance of probabilities that the employee had committed
the offence
of fraud is reasonable. This has to be evaluated on the basis of the
evidence and the facts which were before the Commissioner
during the
arbitration proceedings.
[9]
It
has already been indicated that the employee was charged with the
misconduct concerning the allegation of fraud which is an act
of
serious dishonesty. The applicant’s policy defines fraud in the
following terms:
‘
Any
wilful and unlawful misrepresentation by any employee in whatever
form that will have the effect of damaging/harming or potentially
damaging the company’.
[10]
In
terms of
section 192
of the
Labour Relations Act of 1995
the onus of
proof that the dismissal of an employee was both procedurally and
substantively fair rests on the employer being the
applicant in the
present instance. The onus is discharged on the balance of
probabilities.
[11]
In
order to succeed in proving that the employee was guilty as charged,
the applicant had to adduce evidence showing that on the
balance of
probabilities the employee in making the entry that he paid R 420,00
for the Uthingo winning ticket whilst the GVT machine
showed that the
total paid was R210,00, did so with the intention of misrepresenting
the true state of affairs in relation to the
payment. The applicant
had further to show that consequent to the misrepresentation it was
prejudiced by the conduct
[12]
In
my view, taking into account the facts and the evidence which was
properly before the Commissioner, I do not agree with the contention
that the outcome of the arbitration award was unreasonable.
[13]
The
key testimony which the applicant relied on in seeking to show that
the dismissal of the employee was for a fair reason was
that of Mr
Minaar. The essence of his testimony is that the employee presented
to the applicant that he, paid out R420-00. According
to him, the
employee had no right to do that. He testified further that the
employee was supposed to have reflected the surplus
of R210-00 in
accounting record. His failure, according to Mr Minaar to record the
correct figure as R210-00 resulted in the applicant
suffering the
loss in that amount.
[14]
In
my view, at best the testimony of Mr Minaar indicates conduct related
more to negligence on the part of the employee than intentional
misrepresentation. The employee did not deny that the incorrect entry
of R420-00 instead of R210-00 was made. He could probably
be
criticised for not promptly informing the applicant about the
variance in his accounting entry but that in my view is far from
tilting the probabilities towards intentional misrepresentation.
[15]
The
above discussion leads me to the conclusion that there is no basis
for interfering with the Commissioner's arbitration award.
Put in
another way, the outcome of the arbitration proceedings is not
unreasonable and therefore the arbitration award is not susceptible
to review.
Order
[16]
In
the premises, the applicant's review application is dismissed with no
order as to costs.
________
Molahlehi J
J
udge
of the Labour Court of South Africa
APPEARANCES:
For the Applicant:
Advocate N Mbelle
Instructed
by:
Madlopa Attorneys.
For
the Respondent:
In person
[1]
[2007]
12 BLLR 1097
(CC).