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[2014] ZALCJHB 187
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Mokgalabone v Commission For Conciliation, Mediation And Arbitration and Others (JR1839/2012) [2014] ZALCJHB 187 (26 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR1839/2012
In
the matter between:
MOKGALABONE,
IRENE
DITEBOGO Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
RAFFEE,
MOHAMED, N
.O
COMMISSIONER Second
Respondent
STANDARD
BANK OF SOUTH AFRICA
LIMITED Third
Respondent
Heard:
6 March 2014
Delivered:
26 May 2014
Summary:
An award which falls within bounds of reasonableness is not
susceptible to review.
Review
in terms of section 145 of the LRA: Dismissal for misconduct
JUDGMENT
LALLIE
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent (“the commissioner”)
in which he
found the applicant’s dismissal substantively and procedurally
fair. The applicant delayed in prosecuting her
review application
prompting the third respondent to file an application for the
dismissal of her review application owing to the
excessive and undue
delay in its prosecution.
Dismissal
application
[2]
The review and dismissal applications were argued simultaneously. I
will firstly determine the dismissal application. Pursuant
to her
dismissal, the applicant referred an unfair dismissal dispute to the
first respondent. The commissioner issued the arbitration
award on 12
June 2012 and the applicant filed her review application within the
six weeks period prescribed in section 145 of the
Labour Relations
Act 66 of 1995 (the LRA). The first respondent dispatched the record
to the Registrar on 26 September 2012. The
applicant filed the record
of the arbitration proceedings on 20 May 2013. The third respondent
filed an application in terms of
Rule 11 for the dismissal of the
review application on 7 May 2013.
[3]
From 15 November 2012, the third respondent addressed letters to the
applicant enquiring about the review application. It made
enquiries
about the applicant’s failure to file the record, put pressure
for the record to be file and threatened to file
this dismissal
application. The third respondent’s efforts culminated in the
filing of this application on 8 May 2013. The
applicant failed to
answer to some letters and took too long to answer others. She also
made empty promises to deliver the record.
The applicant attributed
the delay to her impecuniosity. She explained that she was unable to
pay the costs of the transcription
of the record as she had no source
of income after her dismissal. She further submitted that the firm
which transcribed the record
was responsible for part of the delay.
[4]
In
Meitjies
v New Tyre Manufacturers Bargaining Council and Others
[1]
it
was held as follows:
‘
It
is trite that the court has a discretion to bar an applicant who
fails to provide reasonable and satisfactory explanation for
the
delay in timeous prosecution of his or her review application. The
approach to be adopted when dealing with the issue of unreasonable
delay has received attention in a number of both Labour Court and
Labour Appeal Court cases. The courts in considering whether
to
uphold an application for the dismissal of a review on the ground of
want of prosecution take into account the following:
(a)
Is the delay in the prosecution of the
matter excessive?
(b)
Is there a reasonable explanation for the
delay?
(c)
What prejudice will the other party suffer
if the dismissal is not granted?
(d)
Are there prospects of success in the main
case?’
[5]
The delay in the filing of the record is excessive in that the
applicant took about seven months to file it. Although the
applicant’s
attorneys could have handled the queries about the
delay in the filing of the record better, the applicant cannot be
denied of
the right to be heard because of her inability to raise an
amount in excess of R4000 to pay for the transcription of the record
at a time she was unemployed. The delay by a company responsible for
transcribing the record cannot be visited on the applicant.
I,
therefore, conclude that the applicant proffered a reasonable
explanation for the delay.
[6]
The prejudice that the applicant will suffer in the event of this
application being granted is that she will lose her right
to be
heard. This court does not take the decision to deprive a litigant of
the right to be heard easily. The decision to non-suit
a litigant
affects rights enshrined in the Constitution. The test whether the
applicant has prospects of success is whether she
could be successful
in the main application. A consideration of the review application
shows that if the applicant can prove the
averments made in her
review application, she could be successful.
[7]
The prejudice the third respondent stands to suffer is not much.
There is no danger of the unavailability of witness or memories
having faded as the review application is based on the record before
court. At the time this application was set down for hearing,
the
review application was also ripe for hearing as a result the
applications were heard simultaneously. The prejudice which was
caused by the delay can be compensated by an appropriate costs order.
For these reasons, the application to dismiss the review
application
is dismissed. The third respondent did not act unreasonably in
bringing this application, it will therefore not be
appropriate to
grant a costs order against it.
The
review
[8]
The facts of this matter are mainly common cause. They are that the
applicant was employed by the third respondent in the position
of
Standard Executors and Trustees. On 1 October 2009, she became the
Business Banking Risk Manager reporting to Mr Cullen (Cullen).
From
November 2010, she reported to Mr Thompson (Thompson). Amongst the
applicant’s responsibilities as a Business Risk Manager
was the
provision of risk management support to Mr Govender (Govender), the
Director of Procurement and Logistics.
[9]
The third respondent required its employees to declare their business
interests and those of their family members quarterly
in order to
avoid a conflict of interests, in a declaration of interest (“DOI”)
standard from which was counter signed
by their line managers. In
June 2011, the applicant took a two weeks’ compationate leave.
On her return, on 28 June 2011,
she countersigned three DOI forms
prepared by Govender for the last quarter of 2010 and the first two
quarters of 2011. The DOI’s
were signed by Govender on 29
October 2010, 11 February 2011 and 27 April 2011 respectively.
Pursuant to an investigation which
involved Govender’s
suspicious conduct, the applicant was charged with “alleged
dishonestly in that [she] misrepresented
declaration of interest for
Meshem Govender by co-signing the documents in July 2011”. She
was found guilty and dismissed.
Her efforts to have her dismissal at
the first respondent declared unfair were unsuccessful. She lauched
this application to have
the decision of the second respondent (“the
commissioner”) reviewed and set aside.
Grounds
for review
[10]
The applicant submitted that the commissioner failed to consider
properly or at all the totality of the circumstances of her
case.
Such circumstances include the third respondent’s evidence,
substantive fairness of the dismissal and the charge which
had been
preferred against the applicant. The failure, according to the
applicant, led the commissioner to find that the applicant
was
dishonest and misrepresented Governder’s declaration of
interest. The applicant further submitted that the award was
rendered
reviewable by the commissioner’s finding that the third
respondent did not act inconsistently.
The
test for review
[11]
The test for review is settled, it is whether the decision reached by
the commissioner is one a reasonable decision maker could
not
reach
.
[2]
The
correct approach in reviewing an arbitration award is to consider the
arbitration in its totality.
[3]
The
award
[12]
In the reasons for his decision, the commissioner took into account
that the applicant was legally qualified. She would therefore
understand the consequences of signing a date which purports not to
be the date on documents. She had signed on three occasions,
three
documents not on the date reflected on them. He considered
disingenuous the applicant’s version that the forms were
defective in that there was no date inserted for her at the time of
signature. Although she was influenced to sign the DOIs by
her trust
in Govender, the medication she had taken, the confusion she had as
she had just returned from a funeral, Govender being
in a hurry, Jorg
unwilling to sign the documents, Johan had been retrenched and the
documents could not be found. Signing the DOIs
did not bode well with
the applicant. She could not explain why she did not report the
incident on the fraud hot line, at the human
resources department or
to her line manager. She instead disclosed the incident to a
colleague on the basis that if anything was
to happen to her, he
should know. The commissioner also took into cognisance the need for
high integrity in the banking industry
and that the applicant’s
conduct compromised her integrity. He rejected the applicant’s
version that the third respondent
acted inconsistently in the manner
it treated her subsequent to the discovery of Govender’s
fraudulent activities. He found
that there was insufficient evidence
to conclude that the applicant’s dismissal was procedurally
unfair.
[13]
It was urged on behalf of the applicant that the commissioner made a
decision a reasonable decision maker could not reach on
the evidence
before him, firstly, because in reaching his decision he conducted an
incorrect enquiry. The proper enquiry was whether
the applicant was
guilty of dishonesty when signing the documents and not whether she
was wrong in signing documents that she should
not have signed. The
commissioner was wrong, so went the argument, in finding that the
applicant should have known better. The
weakness of this argument is
that it overlooks the test for review and that the error, if it was
made, did not render the award
reviewable.
[14]
A proper reading of the award reflects that when analysing the
evidence and arguments, and giving reasons for finding the
applicant’s dismissal substantively fair, the commissioner
stated,
inter alia
, that the applicant’s conduct
compromised her integrity. Integrity connotes honesty.
[15]
In an attempt to prove the unreasonableness of the award, the
applicant argued that her version, that there were no dates on
the
DOIs when she signed them, was not gainsaid. The commissioner
rejected her version as disingenuous and gave reasons for his
finding
which include the applicant’s failure to lodge an official
report of the incident.
[16]
The applicant’s argument that on the third respondent’s
own version, the DOIs became valueless when signed by the
applicant
is of no moment because it does not sanitize applicant’s
dishonest conduct. The record is replete with evidence
supporting the
commissioner’s finding that the applicant’s conduct
compromised her integrity. She informed Mr Pretorius
(“Pretorius”)
over the telephone and in person when he was investigating
allegations of misconduct against Govender
that the DOI forms in
question were signed quarterly on the dates reflected on them. She
maintained her untruthful version even
in a meeting with Pretorius on
19 July 2011. She only told the truth when cornered by Pretorius. She
conceded that she misrepresented
the true facts by back dating the
DOIs.
[17]
The applicant denied having committed fraud. The submissions on the
applicant’s innocence in connection with fraud are
irrelevant
as she was not dismissed for committing fraud. None of the findings
reached by the commissioner are based on fraud.
[18]
The applicant did not prove valid grounds to have the award reviewed
and set aside. The award therefore falls within bounds
of
reasonableness, in that the commissioner dealt with the principal
issue before him, analysed the evidence and reached a reasonable
conclusion.
[19]
The third respondent sought a costs order against the applicant.
Requirements of both the law and fairness justify a costs
order
against the applicant for her conduct of proceeding with this matter
when it was at all times clear that she had no valid
grounds to mount
her attack on the arbitration award.
[20]
In the premises, the following order is made:
20
.1 The application for review is dismissed with
costs.
________________
Lallie, J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate R.S. Willis and Advocate M. Naidoo
Instructed
by Mashiane Moodley & Monama Inc
For
the Third Respondent: Mr D.
Cithi of Mervyn Taback Inc
[1]
(2012)
33 ILJ 1725 (LC) at para 30.
[2]
See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110.
[3]
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).