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[2015] ZALCJHB 457
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Abrahams v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others; Freedom Park v Abrahams and Others (JR268/13; JR516/13) [2015] ZALCJHB 457 (19 February 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Not Reportable
Case Number: JR 268/13
JR516/13
In
the matters between:
M.R.
ABRAHAMS
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
First
Respondent
AND
ARBITRATION (“CCMA”)
KHOMOTJO
MATJI N.O.
Second
Respondent
FREEDOM
PARK
Third
Respondent
and
FREEDOM
PARK
Applicant
and
M.R.
ABRAHAMS
First
Respondent
KHOMOTJO
MATJI N.O.
Second
Respondent
CCMA
Third
Respondent
Heard:
07 January 2015
Delivered
:
19 February 2015
Summary
–
Section
188A dismissal for failure to disclose an interest in a tender.
Evidence not establishing a disclosable interest.
Review
–
Section
188A dismissal. Employee found not guilty by Commissioner on charges
of authorising wasteful expenditure. Employee clearly
had to consider
all factors, including fact that employer caused some services not to
be rendered. Expenditure in such circumstances
authorised and not
wasteful. Commissioner’s award not reviewable on this basis.
JUDGMENT
BEATON AJ
[1]
As can be gleaned from the heading this
judgment is given in respect of two distinct, but interrelated review
applications involving
the same parties. Freedom Park (to which I
shall refer as “the employer”) is a cultural institution
as contemplated
in
section 3(1)
of the
Cultural Institutions Act,
1998
. From 1 January 2006 until 24 December 2012 it employed Mr M.R.
Abrahams (to whom I shall refer as “the employee”) as
its
Departmental Head: Heritage and Knowledge. On 24 December 2012 the
employee was dismissed, effectively by Commissioner Khomotjo
Matji
(to whom I shall refer as “the Commissioner”) of the
CCMA, following a pre-dismissal arbitration procedure as
contemplated
in section 188A of the Labour Relations Act, 1995 (“the Act”).
In his award of 24 December 2012 the Commissioner
directed, in terms
of section 188A(9) of the Act that the employee should be summarily
dismissed. This direction followed a finding
that the employee was
guilty of 1 of 4 charges of misconduct alleged by the employer. In
his award, at paragraph 162 the Commissioner
formulated the charge of
which the employee was guilty as follows:
“
...contravention
of section 4.3.2.12 of Freedom Park’s Disciplinary Code and
Procedure in that he failed to disclose his indirect
interest in
Under Pressure Agency arising from his relationship with Giselle
Baillie;”
The
Commissioner found the employee not guilty of the other charges which
had been brought by Freedom Park.
[2]
It bears mention, at this stage, that, as
at the date of his dismissal, the employee was employed on a fixed
term contract (which
followed a previous fixed term contract) which
was to expire on 31 March 2013. He earned a monthly salary of
R68 827,08 at
the date of his dismissal.
[3]
Aggrieved by the decision of the
Commissioner the employee launched a review application in respect
thereof during February 2013.
That is the first application in the
heading above. The relief sought in that application was that the
award of 24 December 2012
be reviewed and set aside and that there be
substituted for the award of the Commissioner one to the effect that
the employee was
not guilty of any of the charges brought against him
by his employer. The second leg of the relief sought was accompanied
by two
alternatives – one that the award be substituted with a
penalty less severe than dismissal and the second that the matter
be
remitted to the CCMA for a fresh hearing before another Commissioner.
Faced with this application the employer, during March
2013, brought
a review application in respect of the Commissioner’s finding
that the employee was not guilty of the 2
nd
to 4
th
charges which he had faced during the pre-dismissal arbitration
process. That application was conditional upon the employee’s
review application succeeding. Since it was launched outside the 6
week period contemplated in section 145 of the Act, it was
accompanied by an application for condonation. I granted that
application at the commencement of proceedings on 7 January 2015 and
simultaneously gave reasons for such order, which I do not intend to
repeat here.
[4]
The first matter to consider is thus the
employee’s review application, as a lack of success on his part
in this application
renders a decision on the employer’s
application unnecessary. Various grounds, including a contention that
the delay between
the Commission of the offence (2009 – early
2010) and the institution of the disciplinary hearing (May 2012)
rendered the
disciplinary process irregular and thus susceptible to
being reviewed, were advanced in the founding affidavit of the
employee.
During argument Mr Grundlingh, appearing for the employee,
confined himself to one ground, being that the Commissioner never
identified
the nature of the relationship between the employee and
Under Pressure Agency that the employee should have, but did not,
disclose.
Narrowly coupled to this contention was one that the
evidence did not disclose a relationship between the employee and
either Under
Pressure Agency or Gizelle Baillie that the employee was
obliged to disclose.
[5]
Before evaluating the merits of these
submissions some facts and the applicable regulatory provisions need
to be set out. It was
common cause during the arbitration hearing
that:
(a)
Under Pressure Agency was the trading name
of Giselle Baillie CC, whose sole member was Giselle Baillie;
(b)
An employee of the employer other than the
employee (Mr E F Buthelezi) secured quotes from 3 service providers
whose names were
provided by the employee as well as another entity
These quotes were for the provision of Object curator services.
(Dagmark Agency).
Dagmark’s quote was the lowest but not
accepted on the employee’s advice as the quote expressly stated
that other charges
might also be levied;
(c)
The employee had, prior to his commencing
employment with the employer, been involved in a joint venture with
Under Pressure Agency
and
had developed a friendship with Giselle Baillie. That friendship
endured after his employment by the employer and was expressly
found
by the Commissioner not be a romantic liaison. This finding was
accepted by the employer. The employee described Ms Baillie
as a
“good friend” during his evidence before the
Commissioner.
The
charge on which the employee was dismissed reads as follows in the
notice of 21 August 2012 by the employer to him, advising
of the
referral of a pre-dismissal arbitration to the CCMA:
“
You
are charged with contravention of section 4.3.2.12 of Freedom Park’s
Disciplinary Code and Procedure read with sections
10.3 and 17.30 of
Freedom Park’s Supply Chain Management Policy as well as
section 2.2 and 2.3.3 of Freedom Park’s
Policy on Declaration
of Direct or Indirect Interest and Gifts in that you knowingly
omitted to disclose your indirect interest
in the company Giselle
Baillie CC trading as Underpressure Agency which arose by virtue of
your friendship and/or relationship
with a member of the company, one
Giselle Baillie during the course of procuring the provider for the
Object Curator project”.
The
applicable regulatory measures are thus:
(e) Section
4.3.2.12 of the Employer’s Disciplinary Code and Procedure.
That sub-section, to be found
at p1059 of the record, refers to:
“
Providing
false information in or knowingly omitting relevant information from
an application for employment or when undergoing
a medical
examination or in the cause (sic) of ones (sic) work”.
(b)
Section 10.3 of the employer’s Supply Chain Management Policy
provides that:
“
If
a SCM (Supply Chain Management) practitioner or other role player, or
close family member, partner or associate of such practitioner
or
other role player, has any private or business interest in any
contract to be awarded, that practitioner or other role player
must:
·
Disclose
that interest;
·
Withdraw
from participating in any manner whatsoever in the process relating
to the contract”.
(c)
Section 17.30 of the same document requires an employee involved in
the procurement
process to declare that he/she complies with the
Prevention and Combating of Corrupt Activities Act. This aspect of
the charge
played no part in the Commissioner’s reasoning in
finding against the employee on the first charge and need not be
considered
further.
(d)
Section 2.2 of the Employer’s Policy on Declaration of Direct
or Indirect Interest
and Gifts, reads as follows:
“
Council
members and officials of Freedom Park shall declare, by way of a
notice in writing, direct or indirect business interests
that he/she
or a family member may have in any contract/tender or proposed
contract/tender which has been or is to be entered into
by the
Freedom Park or who so becomes interested in any such contract/tender
after it has been entered into”.
The
provisions of section 2.3.3 of that policy merely assert that
non-compliance with the policy renders the council member or official
concerned
“
...guilty
of an offence”.
Whether it
is a disciplinary or criminal “offence” is not stated but
the section is irrelevant to a consideration of
the question with
which I am seized.
[6]
As indicated above the Commissioner did not
identify the interest in Giselle Baillie CC held by the employee that
should have been
disclosed. When asked during argument of the review
applications what that interest was Mr Van der Westhuizen, who
appeared for
the employer, submitted that it was the friendship
between the employee and Giselle Baillie, the individual who was the
sole member
of Giselle Baillie CC, to which reference has been made
above. Indeed, on the available evidence he could not have submitted
otherwise.
[7]
In my view that friendship could not
constitute the type of interest which is the target of the regulatory
measures set out above.
Section 10.3 of the Supply Chain Management
Policy describes the natural persons and their relationship to the
official or employee
concerned, which triggers the duty of
disclosure. Those persons do not include a “friend”. Mr
van der Westhuizen submitted
further that the employee had a “private
interest” in the contract being procured because of his
friendship with Giselle
Baillie. In my view such a construction
strains the natural meaning of the words concerned. It is the
interest of the described
persons in the contract, not the entity
concluding the contract, that requires disclosure.
[8]
Extending the provisions in question to a
friendship relationship also creates uncertainty. What degree of
friendship is required
to trigger the disclosure duty? When faced
with this question Mr Van der Westhuizen provided no answer but
referred to the employee’s
evidence that Giselle Baillie was
his “good friend”.
[9]
The provisions of the Policy on Declaration
of Direct or Indirect Interest and Gits are even narrower, applying
only to Council
members, officials and (their) family members.
Clearly Ms Baillie was not a family member of the employee.
[10]
Accordingly I am of the view that the
Commissioner’s conclusion that the employee had an interest
that required disclosure
was not one that a Commissioner could
reasonably have reached on the evidential material (the provisions of
the policies quoted
above and the evidence that the employee and
Giselle Baillie were good friends) before him. Accordingly the
finding that the employee
was guilty of the first count of misconduct
with which he was charged, and the concomitant penalty of summary
dismissal, fall to
be reviewed and set aside.
[11]
During argument I enquired of Mr Van der
Westhuizen if his client agreed to an order for the payment of the
employee’s outstanding
salary in respect of the period
24/12/2012 – 31/03/2013 if the employee’s review
succeeded and the employer’s
review application did not result
in an order dismissing the employee. He undertook to revert to me and
has done so, indicating
that he was unable to secure such agreement.
The ensuing order is thus not necessarily the final chapter of this
litigious saga.
[12]
I shall consider the question of the costs
of the employee’s review application after addressing the
employer’s review
application.
[13]
I find it convenient first to deal with the
Commissioner’s approach to Count 4 and thereafter the way in
which he dealt with
counts 2 and 3. In order to do justice to the
employer’s attack on the way in which the Commissioner dealt
with Court 4 it
is necessary to quote that charge in full. It reads
as follows:
“
You
are charged with gross dishonesty in that you deliberately
manipulated or compromised the integrity of the tender process by
using your position of authority to influence the decision of the
supply chain officer against going on a public tender and/or
recommending acceptance of the proposal with the highest quote for
object curator and/or omitting to disclose your direct or indirect
interest in Under Pressure Agency that the tender is awarded”.
[14]
The Commissioner, in finding the employee
guilty of the first charge held, at paragraph 131 of his award that:
“
The
withholding of information or making of a false statement or
misrepresentation is deceitful conduct and constitutes dishonesty”.
That
statement is clearly correct but needs to be qualified by the
assertion that a non-disclosure is only deceitful when there
is a
duty on the person concerned to make the disclosure.
(See:
Laltoparsat v Webber Wentzel Bowens 92004) 25 ILJ 371 (CCMA) at 374B.
Although that matter was concerned with
an alleged non-disclosure in a CV by an Applicant for employment, the
same principle applies
to this matter.
[15]
The Commissioner, in paragraph 154 of his
award, held that to find the employee guilty on this charge, in
addition to the first
charge, would amount to an improper splitting
of charges – he should perhaps have said convictions. That
argument cannot
be sustained in these proceedings since I have found
that the first charge cannot be sustained. The fourth charge thus has
to be
considered on its merits.
[16]
The charge, it should be remembered, is
that the employee was grossly dishonest. The mere manipulation of a
tender process is not
dishonest – it may be improper and even
unlawful. But without the element of non-disclosure referred to in
the charge there
is no dishonesty. Given my finding above that there
was no duty to disclose the relationship between the employee and
Giselle Baillie,
this charge was not established by the evidence
before him. Even if I am wrong on this score the evidence showed that
when he commenced
employment the employee made a detailed disclosure
of his prior involvement with Giselle Baillie CC and the individual,
Giselle
Baillie. His conduct in not disclosing it again, 3 years
later, cannot be said to be dishonest.
[17]
The thrust of charges 2 and 3 was that the
employee permitted or authorised expenditure by the employer to Under
Pressure Agency
for services that were not rendered and thus was
party to unauthorised or wasteful expenditure. Mr Van der Westhuizen
very properly
conceded that there was no difference, in substance,
between the charges. The reason advanced by the Commissioner for
finding that
these charges were not established was that the areas of
non-performance were occasioned by the employer’s failings –
its failure to furnish conservation and storage facilities and its
failure to make practical arrangements for workshops at which
skills
were to be transferred were 2 examples mentioned. The employer’s
argument that the employee was guilty of the thrust
of these charges
for having authorised payments for work not done is, in my view,
somewhat
simplistic. He had detailed reports as to why the work was not done
and would have had to consider whether non-payment
would expose the
employer to a claim based on fictional fulfilment of Under Pressure
Agency’s obligations. A failure to consider
this aspect of the
matter would have amounted to a dereliction of the employee’s
duties. In my view the employee did nothing
wrong in authorising
these payments.
[18]
In my view the Commissioner’s
distinction between accountability and responsibility is artificial.
The employee clearly played
a significant role in both monitoring the
services rendered by Under Pressure Agency and authorizing or
initiating payments for
such services. The basis of the
Commissioner’s award in respect of charges 2 and 3, insofar as
it comprised of a finding
that the employee was not responsible or
accountable for the expenditure in question is not one that can
reasonably be sustained
on the evidence advanced. However, given the
contents of the immediately preceding paragraph, his award on this
part of the case
does not fall to be reviewed or set aside.
[19]
Mr Grundlingh argued that to deprive the
employee of his costs would render the whole award process
meaningless for him as he would
lose the monetary award gained
thereby. I do not agree – his good name has been restored and,
given the small world that
comprises the museum and artefact
industry, this is not a Phyrric victory. I am persuaded, however,
that the employer’s opposition
to the employee’s review
application was ill-
advised
and should attract an appropriate costs order. The
counter-application (perhaps not properly called that) was, however,
properly and almost necessarily brought as evidenced by the fact that
a fresh determination of the merits of charge 4 was required.
In
the premises I make the following orders:
In
Case Number JR268/13:
(a)
The pre-dismissal arbitration award by
Commissioner Khomotjo Matji under case no
GATW9229-12
of First Respondent, dated 24 December 2012, is reviewed and set
aside.
(b)
The said award is substituted with one that
the Applicant is not guilty of any of the charges brought against him
by Third Respondent
and the dismissal effected in the award is set
aside.
(c)
Third Respondent is to pay the costs
incurred by Applicant as a result of its (Third Respondent’s)
opposition.
In
Case Number JR516/13:
(a)
The application is dismissed.
(b)
There is no order as to costs.
__________________
Beaton AJ
Judge
of the Labour Court of South Africa
APPEARANCE
For
the Applicant:
Advocate
Riaan Grundlingh
Instructed
by:
Bester & Rhoodie Attorneys
For
the Respondent:
Advocate Gvd Westhuizen
Instructed
by:
MacRobert Inc