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[2015] ZALCJHB 3
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Jofile v South African Local Government Bargaining Council And Others (JR1578/12) [2015] ZALCJHB 3 (8 January 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no:
JR1578/12
DATE: 08 JANUARY
2015
Not Reportable
In the matter
between:
THEMBISILE
J
JOFILE
.........................................................................................
Applicant
And
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL AND
OTHERS
...............................................
First
Respondents
ADV
TIMOTHY BOYCE Second Respondent
MERAFONG
CITY LOCAL MUNICIPALITY
.......................................
Third
Respondent
Heard:
13 June 2014
Delivered:
08 January 2015
Summary:
Review application. The conclusion reached by the arbitrator that the
dismissal was fair is unreasonable and therefore
the review
application stands to succeed.
JUDGMENT
MOLAHLEHI, J
[1]
This is an application to review and set
aside the arbitration award issued by the second respondent (the
arbitrator) under case
number GPD061112 dated 20 February 2012 in
terms of which the dismissal of the applicant was found to have been
for a fair reason
and accordingly her unfair dismissal claim was
dismissed.
[2]
The applicant had also applied for
condonation for the late filing of review application. The
condonation was granted at the hearing
of the matter and the reasons
for that are in the
ex tempore
ruling.
Background facts
[3]
The applicant was prior to her dismissal
employed by the respondent as the chief licensing officer with her
immediate supervisor
being Ms. Combrinck. She was charged and
dismissed for misconduct relating to dishonesty. The charge proffered
against her reads
as follows:
“
Gross
dishonesty regarding the unlawful and intentional stealing of an
amount of R18, 635 on 26 July 2010.”
[4]
The incident that led to the above charge
against the applicant arose when Ms. Combrinck noticed that the
amount had not been banked
with the security company, SBV.
[5]
During August 2010, the applicant received the
call from Ms Van Tromp saying that the money in the amount of R18,
635 is not reflected
in the bank statement of the municipality.
[6]
According to Ms. Combrink, she was informed by
the applicant that the money had been banked after it had been placed
in the plastic
money bag and thereafter placed into another bag with
the serial number 1012001656972. The applicant further signed a
memorandum
which reads as follows:
‘
I
THEMBISILE JOYCE DECLARE THAT ON 26
TH
OF JULY RECEIVED THE
MONEY TO THE VELUA OF R18635 FROM THE ACTING SUPERVISOR MS JM
LETSOELA. I TOOK NECESSARY DOCUMENTS (DEPOSIT
BOOK & THE RD754
PRINTST OUTS) AND BANKED THE MONEY WITH THE MONEY WITH A PLASTIC BAG
BAR CODED 10220016569760. AT THE LATER
STAGE I WAS INFORMED THAT THE
MONEY WAS NOT BANK. AS FOR HOW THIS INCIDENT OCCURRED I DO NOT KNOW
BECAUSE I BELIEVE THAT I DID
ALL THE NECESSARY PROCEDURES AS A
SUPERVISOR AND I AM REALY PAUZZELED THAT THE MONEY WENT MISSING IN
THAT MANNER....’
[7]
Subsequent to discovering that the money had
not been banked, it was arranged with the security company to watch
the video footage
relating to the banking of the money. It is
apparent from the observation of the video footage that there was no
tempering with
the bags in which the money had been placed and also
that there was no money in the bag.
The
ground for review
[8]
The applicant raised several grounds of review
in challenging the manner in which the arbitration proceedings were
conducted including
the outcome thereof. The thrust of the challenge
is, however, that the outcome of the arbitration award is
unreasonable and that
the arbitrator committed gross irregularity in
the manner in which he conducted the proceedings. In summary, the
complaint of the
applicant is that:
a.
She was denied a fair hearing because
she was refused a postponement.
b.
The arbitrator was found discussing the
matter with one of the officials of the third respondent before the
commencement of the
proceedings.
c.
The arbitrator was biased against the
applicant and exceeded his powers.
[9]
As concerning the outcome of the arbitration
award, the applicant contends that the arbitration award is
unreasonable because the
arbitrator failed to apply his mind to the
facts before him and thus the arbitration award is unreasonable. The
arbitrator is also
criticised for failing to apply his mind to the
issue of inconsistent application of discipline by the respondent and
also failing
to apply his mind to the circumstances and the
explanation as to how the plea of guilty was incorrectly entered
during the disciplinary
hearing. In respect to the plea of guilty,
the applicant contends that the arbitrator failed to apply his mind
to the fact that
the applicant’s representative did not have
the authority to enter that plea.
The
case of the third respondent
[10]
The case of the third respondent during the
arbitration proceedings was based on the testimony of a single
witness, Ms Combrink,
the immediate supervisor of the applicant. The
version that she presented during the arbitration proceedings was
based mainly on
hearsay evidence as she was not present when the two
key incidents that formed the basis for the charges against the
applicant
occurred.
[11]
Ms Combrinck testified that on 13 August 2010,
the applicant whilst in her presence received a call from Ms Van
Tromp who informed
her (the applicant) that the bank statement does
not reflect the amount of R18 635.00, which was collected on 23 July
2010. The
applicant then proceeded to her office to check the bank
deposit slip. She then according to Ms Combrinck, confirmed that she
did
receive the money from the cashier which was thereafter banked.
[12]
She further testified that on 23 July 2010, Ms
Letsoela, who at the time was the cashier, was acting as supervisor
because the applicant
was acting manager. It would appear that on
that day, 23 July 2010, the applicant was supposed to have gone back
to her position
as a supervisor but did not and it would further
appear she was not on duty because she had to go and see a doctor.
The applicant
had informed Ms Combrinck that she would resume her
duties as a supervisor on 26 July 2010.
[13]
In relation to the receipt of the amount in
question, Ms Combrinck testified that it was received by Ms Letsoela
because the applicant
was not there on that day. She further
testified that during cross examination that she did not verify
whether amount in question
was correct because she was not present at
work in the afternoon when the money was counted. According to her,
the person who verified
the amount of money collected for that day
was Ms Letsoela. And when put to her that the money was lost in the
safe and not in
the hands of the applicant, Ms Combrinck stated:
“
Okay,
I will say I was not there, Ms Jofile make an affidavit and
state
that she did receive that amount of money and the documents on 26
th
,
so how can it be lost from 23
rd
to 26
th
? I am
not sure.”
[14]
Ms. Combrink conceded under cross-examination
that the signature of the person who handed the money to the security
company was
Ms Theunisen. She also confirmed that she was not present
on 26 July 2010 when the whole transaction of banking the money took
place. She further testified that on 23 July 2010 to the Ms Letsoela
was the supervisor on duty and was responsible for receiving
the
money. Ms Letsoela had to sign back that responsibility to the
applicant.
[15]
She also stated that after Ms Letsoela had
signed for the money received, the applicant took the responsibility
of sending the money
for banking to the security company. She also
stated that between the 23 July and 26 July 2010, the two supervisors
who had the
keys to the safe were
Ms Letsoela and Ms
Theunissen.
The
case for the Applicant
[16]
The applicant states that she was surprised at
the hearing when her union representative submitted a plea of guilty
on her behalf.
According to her, when she enquired as to why a plea
of guilty, she was told by the representative to keep quiet and that
he would
speak to her later. She raised the issue of the plea of
guilty with her representative and not with the chairperson in the
hearing.
The applicant contends that she never gave the union
representative the authority to plead guilty on her behalf. And when
asked
by the arbitrator why did she not tell the chairperson of the
disciplinary hearing that that is not her plea, she explained:
“
I
did not know what are my rights of saying anything in the court room,
nobody has explained in the first place that if you are
in the court
room you have the right to do this, if you are not agreeing with this
you must do, I thought I must just keep quiet
because I was
represented by the union. I did not know that I have the right to say
anything because it was never addressed to
me when I got inside the
court room.”
[17]
The applicant says that she approached the
chairperson of the disciplinary inquiry, apparently after the
hearing, to explain to
him that she did not give her representative
the authority to plead guilty. The chairperson refused to speak to
her. She then approached
the municipal manager who advised her to
file an appeal.
[18]
In relation to the missing money, the applicant
testified that when she came back after being away on 26 July 2010,
the hand over
was already done. Ms Letsoela was acting in her
position as supervisor and, therefore, she was responsible for her
daily duties
which included banking. According to her, Letsoela
showed her the money bag already sealed with documentation that
showed that
the money was to be banked. The bag was then placed in
the safe.
The arbitration
award
[19]
The arbitrator in arriving at the
conclusion that the applicant was responsible for the missing money
rejected the version of the
applicant and accepted that of the third
respondent. He rejected the version of the applicant that her
representative did not have
the authority to enter the plea of guilty
on her behalf. He found that the applicant failed to provide an
explanation as to why
her representative entered the plea of guilty
if she did not give him the authority to do so.
[20]
In relation to the missing money, the
arbitrator found that the question of whether the applicant was
liable for the theft depended
on whether Ms Letsoela had given the
money to her (the applicant). He found in this respect that Ms
Letsoela did give the money
to the applicant who in turn banked it.
He also found that that version was supported by the applicant’s
memorandum wherein
she stated that she had banked the money. The
arbitrator found the version of the applicant to be fanciful and a
fabrication.
Did
applicant's representative have the authority to enter a plea of
guilty?
[21]
It is generally accepted that the instruction
given to the representative to sue or defend a claim does not include
authority to
settle or compromise a claim or defense without the
consent of the client. The authority to settle or compromise a claim
may, however,
be implied from the conduct of the client.
[22]
The
approach to adopt when dealing with the issue of whether a
representative has the authority to compromise or settle the client's
claim received attention in
MEC
for Economic Affairs, Environmental and Tourism: Eastern Cape v
Kruizenga
.
[1]
In that case, the Supreme Court of Appeal dealt with the issue in the
following terms:
‘
[7]
It is settled law that a client’s instruction to an attorney to
sue or to defend a claim does not generally include the
authority to
settle or compromise a claim or defence without the client’s
approval. The rule has been applied to a judgment
consented to by an
attorney without his client’s authority
and
also when the attorney did so in the mistaken belief that his client
had authorised him to do so. This principle accords with
the rule in
the law of agency that where an agent exceeds the express or implied
authority in transacting, the principal is not
bound by the
transaction.
[2]
’
[23]
The SCA further stated that:
‘
[11]
To summarise it would appear that our courts have dealt with
questions relating to the actual authority of an attorney to transact
on a client’s behalf in the following manner: Attorneys
generally do not have implied authority to settle or compromise a
claim without the consent of the client. However, the instruction to
an attorney to sue or defend a claim may include the implied
authority to do so provided the attorney acts in good faith. And the
courts have said that they will set aside a settlement or
compromise
that does not have the client’s authority where, objectively
viewed, it appears that the agreement is unjust and
not in the
client’s best interests. The office of the State Attorney, by
virtue of its statutory authority as a representative
of the
government, has a broader discretion to bind the government to an
agreement than that ordinarily possessed by private practitioners,
though it is not clear just how broad the ambit of this authority
is.’
[3]
[24]
In the present case, the following have not
been disputed :
a.
That the applicant, questioned her
representative about entering a plea of guilty on her behalf.
b.
The representative told the applicant to
wait when she questioned why he was entering the plea of guilty and
that he would speak
to her later about it.
c.
The applicant stood up, cried and left
the hearing as soon as her representative told her to wait after she
queried the entry of
the plea of guilty.
d.
The applicant approached the chairperson
of the disciplinary hearing and raised with him the issue of the plea
of guilty but received
no response.
e.
The applicant further approached the
municipal manager regarding the plea of guilty. She was advised to
file an appeal.
[25]
It is apparent from the record that the version
of the applicant was not challenged regarding how the plea of guilty
was entered.
The chairperson of the disciplinary hearing or any other
person who could have shared clarity on this issue was not called to
testify
on behalf of the first respondent.
[26]
It
is trite in our law that failure to produce a witness who is
available and able to testify and give relevant evidence, may lead
to
an adverse inference being drawn.
[4]
In the absence of an explanation as to why the chairperson of the
disciplinary hearing was not called to testify about what happened
regarding the plea of guilty, the only inference to draw is that he
may have confirmed the version of the applicant in this regard.
[27]
In the present instance, the arbitrator ought
to have considered the explanation tendered by the applicant as to
the circumstances
that led to the entry of the plea of guilty. In
this respect, had the arbitrator applied his mind to the evidence of
the applicant,
he would have found that the explanation as to how the
plea of guilty was entered and why it should be disregarded. The
version
of the applicant was not challenged neither was the key
witness, being the chairperson of the disciplinary inquiry called to
clarify
what happened when the representative entered the plea of
guilty. The third respondent tendered no explanation as to why the
chairperson
of the disciplinary hearing was not called as a witness.
Did
the third respondent apply discipline inconsistently?
[28]
It
is generally accepted that the dictates of fairness requires an
employer to apply discipline consistently in the workplace and
thus
employees who commit the same or similar offense should be treated in
the same manner and equally. In dealing with this issue
the Court in
Comed
Health CC v National Bargaining Council for the Chemical Industry and
Others
[5]
held:
‘
It
is trite that the employee who seeks to rely on the parity principle
as an aspect of challenging the fairness of his or her dismissal
has
the duty to put sufficient information before the employer to afford
it (the employer) the opportunity to respond effectively
to the
allegation that it applied discipline in an inconsistent manner. One
of the essential pieces of information which the employee
who alleges
inconsistency has to put forward concerns the details of the
employees who he or she alleges have received preferential
treatment
in relation to the discipline that the employer may have meted out.’
[29]
In the present instance, the applicant had
placed before the arbitrator sufficient details as to the other
employee who was alleged
to have been involved in the same alleged
misconduct but unlike her, was not dismissed. In failing to consider
the complaint of
the applicant regarding the inconstant application
of discipline by the third respondent, the arbitrator misconceived
his task
as an arbitrator. Accordingly, in my view, the
Commissioner’s arbitration award stands to be review for this
reason alone.
The
nature of the evidence
[30]
In my
view, the arbitration award further stands to be review for the
reason that the arbitrator failed to apply the proper test
in
evaluating the evidence which was placed before him. It is as a
result of this that the Commissioner’s arbitration award
fails
the standard of reasonableness as set out by the Constitutional Court
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[6]
[31]
It is apparent from the reading of the record
that the case of the third respondent as was presented during the
arbitration proceedings
was based on circumstantial evidence; there
being no direct evidence that the applicant took the money that went
missing.
[32]
The
approach to follow when dealing
with
circumstantial evidence was considered and summarised by this Court
in
National
Union of Metalworkers of SA and Another v KIA Motors and Others
[7]
,
as
follows:
“
(a)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, then the inference cannot be drawn.
(b)
The true facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do not
exclude other reasonable inferences, then there must be doubt whether
the inference sought to be drawn is correct.”
[33]
It
is trite that in civil cases, the
onus
is discharged if the inference advanced is the most readily apparent
and acceptable inference from a number of possible inferences.
It has
also been held that a mere conjuncture or speculation cannot sustain
a case based on circumstantial evidence.
[8]
The case based on circumstantial evidence can only be sustained on
the basis of presentation of objective facts that support the
existence of a particular facts.
Conclusion
[34]
In my view, had the arbitrator applied his
mind to the explanation tendered by the applicant regarding the entry
plea of guilty,
he would have found that the applicant’s
representative did not have the authority to act as he did. The
version of the applicant
is that she tried to engage with her
representative when he made the entry of the plea was not disputed in
cross examination neither
was the chairperson of the disciplinary
hearing called to testify at the arbitration proceedings regarding
the same. In my view,
the chairperson of the disciplinary hearing was
best placed to explain what happened at the beginning of the hearing
when the plea
of guilty was entered.
[35]
In brief, the version of the applicant that
her representative did not have authority to enter the plea of guilty
was not challenged
neither was there evidence that the authority
could be implied. It is thus my view that the representative had no
authority to
enter the plea of guilty on behalf of the applicant.
[36]
As concerning the issue of the alleged
inconsistent application of discipline, I am of the view, that the
arbitrator misconceived
the task that he was expected to perform. His
view was that there was no need to lead evidence with regard to the
issue of inconsistency
and that it could be dealt in argument.
[37]
I have already indicated that the arbitrator
failed to apply his mind to the issue of the authority of the
applicant’s representative
to enter a plea of guilty. Had he
properly applied his mind to this issue, he would have firstly
appreciated that when the applicant
admitted to receiving the money
it was on the basis of an assumption that the money was in the bag
which had been pointed to her
by Ms Letsoela. In the circumstances
where there seems to have been a high level of trust between the
staff as indicated in the
testimony of Ms Combrinck, the assumption
made seems reasonable and acceptable.
[38]
Once it is accepted that the applicant’s
representative did not have the authority to enter a plea of guilty
and the assumption
made by the applicant that there was money in the
bag, then what remains is a case based on circumstantial evidence.
The issue
for determination once evidence was presented would have
been whether the third respondent had discharged its onus of proving
that
the applicant was on the basis of the circumstantial evidence
guilty of the theft of the missing money.
[39]
The third respondent called Ms Combrinck as the
only witness to testify about the missing money. She was, however,
not present on
the 23 July and when the money was counted and also on
26 July when the money was supposedly banked. The person who could
have
assisted in clarifying what happened on the days in question is
Ms Letsoela. She was never called despite an indication earlier
in
the proceedings by the third respondent’s representative that
she would be called. The third respondent has not tendered
any reason
as to why she was not called despite the earlier indication by the
representative of the third respondent that she would
be.
[40]
In respect of the memorandum by the applicant
and her statement that she received the money and it was banked, I am
of the view
that she tendered a reasonable and satisfactory
explanation as to why she was denying the responsibility of the
missing money after
making such statements.
[41]
In light of the above, there can be no doubt
that the applicant has made out a case for the review of the
arbitration award issued
by the commissioner. There is no reason in
the circumstances of this case why the costs should not follow the
results.
Order
[42]
In the circumstances, the following order is
made:
1.
The arbitration award made by the Second
Respondent under case number GPD061112 dated 20 February 2012, is
reviewed and set aside.
2.
The arbitration award is substituted with
an award to the effect that:
i.
The dismissal of the Applicant was
substantively unfair.
ii.
The third respondent is ordered to
reinstate the Applicant retrospectively with back pay and without
loss of any benefit that may
have accrued since her dismissal.
3.
The Third Respondent is to pay the costs
of the Applicant.
E
MOLAHLEHI
Judge
of the Labour Court, Johannesburg
[1]
2010 (4) SA 122 (SCA).
[2]
Ibid
at
para 7.
[3]
Ibid
at
para 11.
[4]
See
Primedia
Outdoor, Division of Primedia (Pty) Ltd v Phala NO and Others
(JR 157/2011) (2012) ZALCJHB 94 (31 August 2012) at para 22.
[5]
(2012) 33
ILJ
623 (LC) at para 10.
[6]
[2007] 12 BLLR 1097 (CC).
[7]
(2007) 28
ILJ
2283(LC) at para 21.
[8]
NUMSA
v Kia Motors
(2007)
28 ILJ (LC).