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[2014] ZALCJHB 211
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Shoke v Commission For Conciliation, Mediation And Arbitration and Others (JR2686/12) [2014] ZALCJHB 211 (20 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: JR2686/12
In
the matter between:
RAYMOND
SHOKE
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER
ROB
MACGREGOR
Second
Respondent
SAA
(PTY)
LTD Third
Respondent
Heard:
14 January 2014
Delivered:
20 May 2014
Summary:
Review application of award made by Second Respondent. Award
not reviewable. Evidence indicating that there
had been
significant dishonesty on the part of the Applicant and his
explanation of his conduct improbable. No sustainable
grounds
of review advanced. Application dismissed.
JUDGMENT
SNIDER
AJ
[1]
This is an application brought by the Applicant (“the
Employee”) to review and correct or set aside an award (“the
award”) made by the Second Respondent (“the
Commissioner”)
[1]
in
favour of the Third Respondent (“SAA”), dismissing the
employee’s unfair dismissal claim and effectively finding
that
the employee’s dismissal was substantively and procedurally
fair. The employee seeks that the matter be referred back
to the
First Respondent alternatively that this Court substitutes the
decision of the Commissioner. The employee further seeks
costs of the
application from SAA.
[2]
Briefly, the background to this matter is that –
2.1
the employee was employed by SAA as a team
leader on 10 June 1999 and was dismissed on 9 November 2012;
2.2
the employee was employed in the ticket
sales department of SAA. On 20 May 2011 three individuals approached
a counter staffed by
one Thuli Motaung (“Thuli”) who was
a junior to the employee and a ticket sales agent. The individuals
concerned wanted
to change a booking and were assisted by Thuli in
doing so;
2.3
one Phumi Khumalo (“Phumi”)
arrived at work at approximately 06h59 on 20 May 2011 and joined
Thuli. Thuli was the manager
on duty at the time;
2.4
at approximately 07h18, one of the
gentlemen who earlier approached Thuli returned to make payment in
respect of the ticket changes
which payment was, on SAA’s
version, in the amount of approximately R5,370; and
2.5
notwithstanding, that cash was handed to
Thuli, the upgrade was processed under a “no-charge”
category. In the normal
course Thuli, or the Employee for that
matter, should have taken the money to the cash box which is located
a few meters from her
counter. However, in this instance Thuli kept
the money on top of her counter, with Phumi and the employee being in
a position
to see this.
[3]
Save for the dispute about the amount handed over to Thuli, which the
Employee alleges was R2,500 and not R5,370, the facts
set out above
are common cause.
[2]
[4]
It is also common cause that the money and accompanying documents
were put, by the employee, “safely”, into Thuli’s
bag, which was nearby.
[3]
[5]
The employee was duly charged with ‘gross misrepresentation,
gross dishonesty, non-compliance with established / known
procedures,
fraud and corruption, breach of code of ethics and conduct of SAA,
conducting private business or personal matter not
related to the
company on the premises and or during working hours and prejudicing
the administration, discipline or efficiency
of the business of SAA
or a business unit or department within the company’.
[6]
He was duly found guilty at a disciplinary enquiry (which he failed
to attend) and was dismissed.
[7]
I am of the view that I could in fact conclude this judgment on the
substantive aspect of the dismissal at this point. This
admission on
the part of the employee; to have taken the money and put it in
Thuli’s bag,
[4]
is so
starkly damaging to his case, and indicates such blatant dishonesty,
that I cannot imagine another Commissioner, having heard
the evidence
set out above at the arbitration, not being able to reasonably come
to the conclusion that the Commissioner came to,
that is that the
employee’s dismissal was substantively fair.
[8]
This analysis is in clear consonance with the decisions in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[5]
Herholdt
v Nedbank Limited (Congress of South African Trading Unions as Amicus
Curiae)
[6]
and,
most recently
,
Goldfields Mining (Pty) Ltd (Kloof Gold Mine v Commission for
Conciliation, Mediation and Arbitration and Others
).
[7]
To cite from the decision of his Lordship Judge President Waglay in
Goldfields
(supra
)
[8]
-
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in
Sidumo
was at pains to state that arbitration awards made under the Labour
Relations Act
[9]
(“the
LRA”) continued to be determined in terms of section 145 of the
LRA but that the constitutional standard of reasonableness
is
“suffused” in the application of section 145 of the LRA.
This implies that the application for review sought on
the grounds of
misconduct, gross irregularity in the conduct of the arbitration
proceedings, and / or excess of powers will not
lead automatically to
setting aside of the award if any of the above grounds are found to
be present. In other words, in the case
such as the present, where a
gross irregularity in the proceedings is alleged, the enquiry is not
confined to whether the arbitrator
misconceived the nature of the
proceedings, but extends to whether the result was unreasonable, or
put another way, whether the
decision that the arbitrator arrived at
is one that falls in a band of decisions to which reasonable
decisions maker could come
on the available material’.
[9]
It is so clearly entirely improper for cash received in a business
transaction to be placed in an employee’s handbag,
and then
removed from the place of work, that it is inconceivable to suggest
that the conclusion which the Commissioner came to
in this regard was
unreasonable.
[10]
The employee’s explanation
[10]
that he ‘withheld cash as it was short and he was waiting for
the agent to come and pay the balance’ is simply fanciful.
[11]
In fact, the employee’s misconduct went further than attempting
to misappropriate the cash received in respect of the
upgrade, in
addition, a receipt document, called an MCO, was fraudulently
produced by him, after the investigation of this incident
commenced,
in an attempt to legitimise the transaction
ex post facto.
[12]
Nevertheless, I will continue to consider the remainder of the issues
raised by the employee and will also expand, to some
extent, on the
central issue of the misconduct of the employee on 20 May 2011as
referred to above.
[13]
There is a recurring complaint of the employee in the review
application that he was refused a postponement when his
representative
became unavailable to represent him at the arbitration
and this, on his version, renders the award reviewable.
[14]
It appears from the transcript that there was indeed significant
debate about the question of a postponement.
[15]
The employee, however, expressed his willingness to continue with the
matter without a representative on more than one occasion
[11]
and it is also clear from the record as a whole that he was able to
do so and equally clear that the Commissioner evaluated his
ability
to do so and came to the same conclusion.
[16]
Although the Commissioner did refuse the postponement,
[12]
he did give the employee an opportunity, albeit a short one, to find
another representative and also confirmed at great length
that the
employee was in a position to continue with the matter. Ultimately
when given the choice of going to the union’s
(SATAWU’s)
offices, which appear to have been in the same building as the First
Respondent, to find a representative, the
employee rather elected to
carry on with the proceedings unrepresented.
[13]
The Commissioner adopted a firm but reasonable stance. It is trite
that he had discretion in respect of granting the postponement,
and
there is nothing to suggest that he exercised it unreasonably or
injudiciously.
[17]
Accordingly, I reject this as a ground of review.
[18]
It is also not a legitimate ground of review that the employee was
not given an opportunity to go through SAA’s bundle
of
documents at the arbitration. In fact he had the bundle for a period
of at least two weeks between the two sittings of the
arbitration.
[14]
[19]
Similarly it is not a ground of review that the employee was not
given sufficient notice of his disciplinary enquiry and that
the
Commissioner did not consider this. The Commissioner deals with the
issue.
[15]
The Employee
complained of short notice of the disciplinary hearing (less than
seven days when the disciplinary code provided for
seven days) but in
fact there was a long time period, well in excess of the seven days,
which elapsed between the initial notice
and the final notice. The
enquiry was postponed several times. The Commissioner takes the view,
reasonably in my opinion, that
the provisions of SAA’s policy
must be viewed in context and that under the circumstances the
employee had more than enough
notice. Clearly the employee had a more
than reasonable opportunity to prepare for the disciplinary enquiry
which ultimately he
did not attend. Extensive evidence was lead in
this regard.
[16]
[20]
The failure of the Commissioner to recuse himself when asked to does
not constitute a legitimate ground of review in this matter.
All that
appears to have occurred was that there was a degree of conflict
between the Commissioner on the one hand and the employee
and his
representative on the other. If conflict of this nature were to be a
legitimate ground of review, then it would open the
flood-gates to a
host of spurious review applications.
[21]
There is no sense in the award of any bias on the part of the
Commissioner, which is a necessary precursor for a recusal
application
of this nature. His findings are consonant with the
evidence and material which was before him and are reasonable and
properly
considered.
[22]
The employee raises, as a ground of review, the finding of the
Commissioner that the employee did not challenge the video evidence.
While there is some debate while the video is actually being shown,
particularly in relation to the counting of the money, the
employee
in fact, did not cross examine the relevant witness in relation to
the video. The most important aspect of the video and
the events
related to it, the placing of the money in Thuli’s handbag by
the employee is, in any event, common cause. I do
not see any basis
on which this could constitute a ground of review.
[23]
In all the circumstances the conclusions to which the Commissioner
came to were reasonable and another Commissioner with the
same facts
and evidentiary material before him could reasonably have come to
those same conclusions. The conclusions are well within
the band of
reasonableness referred to in the authorities set out above.
[24]
Given the conduct of the employee which, to my mind, was flagrantly
dishonest, I regard his pursuance of the arbitration proceedings
and
these review proceedings as bordering on the frivolous and vexatious.
In light of this, I am sorely tempted to make a costs
order against
him. However, I am mindful of the fact that he is an individual who,
although it was through his doing, lost his
employment and would have
great difficultly in paying SAA’s costs.
[25]
Accordingly, I make the following order -
1.
The application is dismissed.
2.
I make no order as to costs.
___________________________
Snider, A J
Acting
Judge of the Labour Court
APPEARANCES
For
the Applicant:
No appearance
For
the Respondents:
Advocate Sumayya Tilly
Instructed
by:
POSWA Inc.
[1]
A copy of the arbitration award appears on page 16 of the paginated
papers.
[2]
At page 51 of the answering affidavit and page 155 and 156 of the
replying affidavit
[3]
At para 14, page 156, replying affidavit
[4]
At page 277 to 278 of the transcript.
[5]
2008 (2) SA 24
(CC); 2007 28
ILJ
2405 (CC).
[6]
2013 (6) SA 224
(SCA); (2013) 34
ILJ
2795 (SCA),
[7]
(2014) 35
ILJ
943
(LAC)
[8]
Ibid at para14.
[9]
Act 66 of 1995 as amended.
[10]
At page 34 paragraph 6.
[11]
At page 169 of the transcript lines 12 to 14 and page 175 of the
transcript lines 3 to 10
[12]
At page 177 of the transcript
[13]
Transcript page 178 lines 10 - 25
[14]
At page 165 to 180 of the record.
[15]
At page 22 onto 23 paragraph 12 of the award.
[16]
Transcript pages 34, 36, 38, 135, 144, 148, 258 – 267 and 303
– 305 of the record.