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[2014] ZALCCT 35
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G4S Secure Solutions (SA) (Pty) Ltd v Commissioner Ruggiero NO and Others (C389/2011) [2014] ZALCCT 35 (10 July 2014)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE LABOUR COURT OF SOUTH AFRICA,
IN CAPE TOWN
JUDGMENT
CASE
NO: c 389/2011
In the
matter between:
G4S
SECURE SOLUTIONS (SA)
(PTY)LTD
.........................................................................
Applicant
and
COMMISSIONER
ANTHONY RUGGIERO
(N.O.)
.................................................
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
.........................................................................
Second
respondent
THANDABANTU
NTLOKO
........................................................................................
Third
respondent
Heard:
16 April 2013
Delivered:
10 July 2014
Summary
:
(Review).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
The third respondent in this matter, Mr T
Ntloko(‘Ntloko’) was dismissed on 4 November 2010 after
being found guilty
of misrepresenting his criminal record when he
applied for employment by the applicant in 1996 and for promotion in
July 2010 to
the position of a controller. He was also found guilty
of being in breach of the Private Security Industry Regulatory
Authority
Act, 56 of 2001 (‘PSIRA’) which disqualified
him from being employed in the security sector if convicted of a
criminal
offence.
[2]
Ntloko had criminal convictions for rape
and assault with intent to cause grievous bodily harm imposed in 1981
and 1991 respectively.
Ntloko had claimed that he was unaware of
either of these convictions when he applied for employment and when
he applied for promotion.
The basis for his belief was that he had
not served jail time for either of the incidence and had been
punished at the time they
arose. In the first case committed when he
was a minor he received six lashes and in respect of the second
incident paid a fine
of R250. He was never advised by the
authorities that he had a criminal record as a result of these
events. He also
claimed to have been under the impression that all
criminal records acquired before 1994 were “scrapped”.
[3]
From the record of the arbitration
proceedings, it appears that when Ntloko applied for employment with
the applicant he stated
that he had not been convicted of a criminal
offence on his application form and did not mention his criminal
record in his curriculum
vitae. He also testified that he had
received the lashing for the first offence in a rural community
forum, and when he paid a
fine in respect of the second offence did
not appear in court. Further, his evidence was that if he had been
aware he had a criminal
record he would have disclosed this when he
applied for employment in 1996.
[4]
Ntloko referred to his dismissal to the
CCMA, claiming that it was substantively unfair. The arbitrator
accepted that Ntloko was
not aware of his criminal record and
therefore was not guilty of misrepresentation when he failed to
disclose it by indicating
that he had no criminal record when he
applied for the job. The arbitrator also found that since PSIRA only
came into effect in
November 2001 and, given that the provision
relating to the prohibition on employment of a person with a criminal
conviction only
applied to someone found guilty of an offence 10
years immediately prior to the application to be registered with the
regulatory
authority, Ntloko was not in breach of those regulations
because the date of his last conviction was August 1991, which was
more
than 10 years prior to the commencement date of that Act.
[5]
The arbitrator also found that even though
criminal records had not been centralised in 1996 it was incumbent on
the applicant to
verify if an employee had been truthful in their
declaration about their criminal record, however onerous that task
might have
been.
[6]
Having effectively found Ntloko not guilty
of the misconduct for which he was dismissed, the arbitrator somewhat
confusingly dealt
with the relief on the basis that he was deciding
whether dismissal would be an appropriate sanction in the
circumstances, before
concluding that Ntloko’s dismissal was
substantively unfair. The arbitrator then concluded that there was no
reason not to
reinstate Ntloko retrospectively to the date of his
dismissal.
[7]
The award was handed down on 8 March 2011
and received by the applicants on 23 March 2011. Consequently it
should have filed its
review application by form a 2011, but was five
weeks late in doing so. On 28 March 2011, which was the date Ntloko
was due to
recommence employment the applicant issued a letter
stating that it intended to launch a review application and that he
should
not tender his services until further notice. The HR manager
responsible for dealing with the matter at the CCMA had referred the
matter to the local manager for consideration, who in turn required
head office authorisation before instituting proceedings. The
HR
manager resigned at the end of March and the correspondence on the
matter was only uncovered late in May by the local manager
responsible. The applicant’s attorneys of record were
instructed to launch proceedings on 6 June 2011. In consequence, the
applicant sought condonation for the late filing of the review
application.
[8]
Similarly, Ntloko’s answering
affidavit was only filed on eight may 2012 some four months after the
applicant filed its supplementary
affidavit on 17 January 2012.
Ntloko also sought condonation for this delay. The reason for the
delay was principally explained
in terms of the relocation of the
Cape Town Justice Centre office which commenced on the date Ntloko
was due to consult with the
legal aid attorney assigned to this
matter. Owing to the latter’s workload and the office
relocation the consultation, which
should have taken place on 28
February 2012, only took place on 18 April 2012.
The
condonation applications
[9]
I believe that the delay in the filing of
the review application is not explained fully, but was not excessive
and in view of the
prospects of success considered below, the
applicant was justified at least in part in bringing the review
application in respect
of the arbitrator’s finding that Ntloko
was not guilty. Accordingly, it is appropriate to condone the
applicant’s lateness
when considering all the factors together.
[10]
In respect of Ntloko’s delay in
filing an answering affidavit, the delay is more extensive, but he
was largely reliant on
free legal services provided by the Cape Town
Justice Centre which was in some organisational disarray at the time.
In so far as
the delay might have delayed the hearing of this matter,
an appropriate adjustment can be made in dealing with the
retrospectivity
of the order in this matter. As Ntloko’s
opposition was not frivolous and the delay was largely beyond his
control, and bearing
in mind the prospects of success below, the late
filing of his answering affidavit should also be condoned.
Grounds of
review
[11]
There are three principal grounds of review
on which the applicant relies. First and foremost, it contends that
the arbitrator could
not have reasonably concluded that Ntloko was
unaware he had been convicted of criminal offences and therefore did
not knowingly
misrepresent the status of his criminal record.
Secondly, the applicant contends that the arbitrator acted
ultra
vires
in ordering Ntloko’s
reinstatement because the applicant had at all material times
indicated that he sought compensation
and not reinstatement and only
mentioned that possibility in closing argument. Thirdly, the
applicant contended that the arbitrator
misconstrued the nature of
the enquiry by failing to appreciate that it was fair and reasonable
for it to require an applicant
for employment to disclose a criminal
conviction, but instead placed the onus of establishing this fact on
the employer. A fourth
ground of review, related to the question of
relief is that in any event the arbitrator failed to consider the
fact that:
11.1
in his disciplinary enquiry Ntloko had
presented a written statement in which he had recorded he did not
believe he had a criminal
record because he had not been ‘in
jail’, but stated that he had appeared in court in respect of
the second conviction
for assault, and;
11.2
following the applicant’s dismissal
the applicant was obliged to apply for his de-registration as a
security service provider
in terms of s 23(1)(f) of the Private
Security Industry Regulation Act , 2001 and that in order for him to
re-register he would
have to have shown he was ‘a fit and
proper person to render as security service’ in terms of
section 23.
[12]
It would appear that although the
arbitrator’s attention was drawn to the statement made by the
applicant at the time of the
preliminary investigation by the
employer in October 2010, the arbitrator failed to have regard to the
fact that in that statement
the applicant admits that he went to
court in respect of the assault charge and that his brother obtained
a lawyer to defend him
and that a fine was imposed on him. This
contrasts strongly with his version at the arbitration that he never
appeared in court
in respect of the second conviction. In respect of
both incidents for which he was charged and convicted, a sentence was
imposed.
I agree with the applicant that it is difficult to
understand how the arbitrator could reasonably have concluded that
Ntloko was
unaware of the status of his criminal record and could
have denied having any criminal conviction. Consequently, I must
agree that
the arbitrator’s finding that Ntloko did not
knowingly failed to disclose his criminal conviction when he was
employed and
when he applied for promotion is one that cannot be
reasonably justified on the evidence before him, and must be set
aside.
[13]
In the circumstances, the arbitrator’s
finding must be replaced with a finding that the applicant was indeed
guilty of not
disclosing his criminal conviction on both occasions.
This naturally requires the court to reconsider the appropriate
sanction
and relief if any flowing from the substitution of the
finding on Ntloko’s guilt.
[14]
It is clear from section 23 (1) (d) of the
PSIRA Regulation Act, that if the applicant had been convicted of
either of the offences
for which he was found guilty after November
1991 he would not have qualified for registration as a security
service provider,
and could not have been lawfully employed as such
by the applicant. The arbitrator was correct in finding that Ntloko
had not acted
in breach of that regulation because his last
conviction predated the 10 year period prior to the commencement of
the PSIRA.
[15]
In this regard, it is important to note
that at the arbitration hearing the applicant’s witness had
confirmed that Ntloko
was a good employee with a clean record and
that she had never had any problems with his performance hence his
application for
promotion. The main difficulty expressed by the
applicant’ s witness at the arbitration was that if they
retained Ntloko
in employment the applicant might face the prospect
of deregistration and a fine effort was discovered that it was
employing a
security officer with a criminal record. The witness is
further recorded in the arbitrator’s notes (which constitute
the
only record of the oral evidence) as having testified that he was
sure that if Ntloko-had his criminal record expunged the applicant
would reconsider employing him.
[16]
Thus, on the available evidence trust
issues arising from the misrepresentation do not appear to have been
the applicant’s
principal concern despite the fact that Ntloko
was guilty of dishonesty. On the evidence of its own witness it was
the possible
breach of PSIRA that was the primary consideration. It
seems reasonable to conclude in the circumstances, and that the
applicant
probably would not have dismissed Ntloko if it had not
believed it would be employing him contrary to the provisions of
PSIRA,
but instead would have imposed a lesser sanction. Had the
applicant’s witness testified that in the light of the
misrepresentation,
the applicant would have dismissed Ntloko
irrespective of its belief it would be in breach of PSIRA on account
of its inability
to trust him anymore, a different conclusion might
have been warranted, but such a conclusion cannot be justified on the
applicant’s
own evidence at the arbitration.
[17]
In view of this evidence, it seems that a
more appropriate sanction would have been a final written warning for
dishonesty, even
if the arbitrator’s conclusion that the
dismissal was substantively fair should stand. Accordingly, the
relief awarded by
the arbitrator in consequence of the unfair
dismissal must be substituted, because the basis for finding the
dismissal unfair rests
on a different footing from that of the
arbitrator who found it unfair based on a finding of not guilty.
Order
[18]
In view of the analysis above,
18.1
The applicant’s late filing of the
review application and the third respondent’s late filing of
his answering affidavit
are condoned.
18.2
The first respondent’s finding that
the third respondentwas not guilty of misrepresenting his criminal
record when applying
for employment in 1996 and when applying for
promotion in 2010 is reviewed and set aside and substituted with a
finding that he
was guilty of such misconduct.
18.3
The relief awarded by the first respondent
in paragraph 35 of his award is substituted with the following (using
the citation of
the parties as they appear in the award):
18.3.1
The respondent, G4S Secure Solutions SA
(Pty) Ltd is ordered to reinstate the applicant, Thandabantu Ntloko
with retrospective effect
to 1 August 2011 on the same terms and
conditions applicable prior to his dismissal and to pay the applicant
his arrear remuneration
calculated at the rate of remuneration he
received at the time of his dismissal, for the period 1 August 2011
to the date of his
return to work within 14 days of his return to
work in terms of this order.
18.3.2
The applicant must report for work within
14 days of this judgment.
18.4
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
W Hutchinson instructed by Moodie & Robertson Attorneys
FIRST RESPONDENT: N Masizana of the Legal Aid Board