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[2015] ZALCJHB 131
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Mkhaba v Commission for Conciliation, Mediation And Arbitration and Others (JR 3062/12) [2015] ZALCJHB 131 (21 April 2015)
THE
LABOUR COURT OF SOUTH AFRICA,
In
JOHANNESBURG
Case
no: JR 3062/12
DATE:
21 APRIL 2015
Not
reportable
In
the matter between:
KHULULIWE
MKHABA
........................................................................................................
Applicant
And
THE
Commission for Conciliation, Mediation And
Arbitration
..............................
First
Respondent
MOTLATSI
PHALA
(N.O.)
.....................................................................................
Second
Respondent
ESKOM
HOLDINGS SOC
LIMITED
.....................................................................
Third
Respondent
Heard:
15 April 2015
Delivered:
21 April 2015
Summary:
(Review – reasonableness – arbitrator’s findings
not ones that a reasonable arbitrator could not reach
on the evidence
– application dismissed)
Judgment
LAGRANGE,
J
Background
[1]
This review concerns a second arbitration
award dealing with the fairness of the applicant’s dismissal.
In the first arbitration
proceedings challenging her dismissal the
applicant was successful, but that award was set aside on review and
the matter was remitted
back for arbitration before another
Commissioner. The parties agreed that the record of the original
proceedings would form part
of the record of the second arbitration
hearing supplemented by specific additional oral evidence. The
additional oral evidence
related to remedies, in particular: the
trust relationship; the nature of the operations at the National
control centre at Simmerpan,
and whether the applicant’s
position still existed.
[2]
The applicant was dismissed for
contravening or failing to comply with Eskom’s security and
safety measures, procedures, directors
and applicable statutory
requirements in that, as a manager who knew about the high security
risk at the National control complex,
she contravened Eskom’s
access control policy and the National Key point act by pre-signing
and thereby pre-approving a blank
visitor’s register form for
non-Eskom employees at the complex. The applicant in this matter was
a Business Support Manager
earning close to R 800,000 per annum at
the time of her dismissal on 29 March 2009. By virtue of her
position, security fell within
her management portfolio. She was the
chairperson of the Joint Planning Committee and was responsible for
safeguarding the complex
against any form or threat or potential
threat, which amongst other things entailed ensuring that security
threat analysis, plans
and procedures were kept updated.
[3]
The essence of the charge against her was
the fact that she had pre-signed a form used for visitors to the
complex, which effectively
granted pre-authorisation for entering the
complex to a person whose details were entered on the form after it
had been signed.
The pre-signed form had been used to grant admission
to relief cleaning workers. The essence of the applicant’s
defence to
the charge was that she simply continued with a
pre-existing practice and could not be blamed for adopting a system
that was already
in place. Added to that, she pointed out that the
form was just one of several measures to ensure security of access to
the complex
and no loss or damage had resulted from the practice
[4]
On the question of the appropriate
sanction, the applicant believed that there was no evidence of an
irretrievable breakdown of
trust even if she was found guilty of the
charge and accordingly dismissal was an inappropriate sanction.
[5]
The arbitrator was not impressed with the
applicant’s defence to the charge and reasoned as follows:
“
6.10
It is apparent from the structure of the form that the host is
expected to confirm the details of the visitor after completion
of
the form but not beforehand. The pre-signing of the form effectively
confirms the particulars of a phantom because at the time
there is no
one trying to gain access.
6.10
the applicant argued that when she joined the company the practice
was already in place that she was not happy with the situation.
Before she cannot be punished for a practice that she inherited.
Secondly the form itself did not give a visitor access because
the
security guard still had to identify that person.
6.11
The applicant was not happy with access control but there was no
evidence to suggest that she raised the issue with her senior
orders
and chairperson of the committee dealing with security matters. The
applicant was the custodian of the security portfolio,
she had the
authority to devise security measures designed to safeguard the
assets of the respondent. It was incumbent upon the
applicant to take
steps in order to improve the situation instead of complaining that
what she inherited was not ideal.”
[6]
The arbitrator also found that the
applicant’s claim that she had inherited the pre-signing system
was refuted by some of
Eskom’s witnesses. The arbitrator found
that by advancing an argument that no loss or damage had been
suffered as a result
of the pre-signing practice, in circumstances
where she had failed to remedy this flaw, the applicant demonstrated
a failure to
appreciate the seriousness of the situation created by
the = inherent risk in the practice.
[7]
Having effectively dismissed the various
defences to the charge, the arbitrator considered whether or not the
sanction of dismissal
was appropriate. Given the seniority of her
position and the nature of the complex and the misconduct she was
guilty of, the arbitrator
found her dismissal was appropriate. In
relation to remarks by her immediate senior, Mr Rasilingwani, the
fact that he said that
if he had known about the issue he would have
spoken to about it and that dismissal was not appropriate, the
arbitrator effectively
deferred to the views of the chairpersons of
the disciplinary hearing and appeal proceedings, who had been tasked
with deciding
whether or not she should be dismissed. The arbitrator
also found that there was no procedural unfairness in the process
leading
to her dismissal.
[8]
The applicant’s grounds of review are
essentially that the arbitrator failed to take account of evidence
of: witnesses who
could not confirm whether there was a pre-existing
practice of pre-signing forms; the fact that the security system was
multi-layered
and had been subject to an audit by the SAPS; the
report of the investigator, Mr Kok, and Rasilingwani’s
testimony on the
appropriateness of her dismissal or what he might
have done if she had come to him about the system.
[9]
Since
the decisions of the SCA and LAC in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[1]
and
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[2]
respectively, the thought process by which an arbitrator arrives at
findings is not a basis for review in and of itself, but merely
indicative of whether the ultimate findings are rational or not.
Thus, a failure to consider material evidence will not matter
unless
no reasonable arbitrator could have arrived at the same ultimate
findings having taken such evidence into account. This
is simply
another way of saying that no reasonable arbitrator could have
arrived at the same conclusion on all the evidence that
was before
the arbitrator whose decision is under review.
[10]
In this instance, though the arbitrator’s
reasoning is a useful indication of the reasonableness of the
findings made. In
relation to the applicant’s claim that the
arbitrator must have failed to consider the evidence as to whether
there was a
pre-existing practice of using the pre-signed forms or
not, the applicant appears to have adopted the view that it was for
Eskom
to establish that the practice did not exist, whereas in fact
the onus fell on her to establish that it did because it was part
of
her defence. At best for her, the evidence she cites in favour of the
pre-existence of the practice, for example that of Ms
Dickerson is
neutral and does not support her claim that it did exist previously.
Moreover, if one has regard to the evidence of
Ms Masehela, her
evidence of the use of the form for admitting replacement cleaners
was of a very different pre-existing practice
namely, that the form
would only be signed to authorise access for a particular replacement
worker
after
all the details of the replacement had been captured first and
authorisation would only be given for two days at a time on that
basis. Similarly, Kok in fact testified that he did not establish the
existence of a practice of pre-signing the forms other than
that done
by the applicant.
[11]
Further, even though the access system was
subject to a variety of controls, it does not alter the fact that for
a non-Eskom employee,
pre-authorisation for gaining entry as provided
by the signing of the form was one of the pre-requisites. It stands
to reason that
by using the pre-signed forms an important layer of
control did not exist. In this regard it is worth mentioning that
there was
evidence that several copies of the pre-signed forms had
been made, which illustrates the abuse that was possible by making
available
even one pre-signed form. The applicant herself conceded
that the practice created a risk and was wrong and did not conform
with
the normal authorisation procedure. She further conceded that
there was no pressing need to bypass the normal procedure by using
the pre-signed forms.
[12]
It is true that under cross-examination,
Rasilingwani appeared to concede that a warning might have been
appropriate sanction, but
it is important to note that this
concession was made in the context of it being assumed that the
applicant had inherited a pre-existing
practice of using the
pre-signed forms. What clearly troubled Rasilingwani, even if there
was such a pre-existing practice, is
that, the applicant appeared to
see nothing wrong with it. Earlier on in his testimony, he made it
plain that in allowing the practice
to exist she could not be trusted
to do what was expected of her given the level of her responsibility
she was entrusted with.
Similarly, merely because Rasilingwani agreed
that if the applicant was reinstated she would be placed somewhere in
Eskom, that
did not amount to a concession that the employer had no
objection to her returning to work for it: he was simply responding
to
a scenario in which Eskom was compelled to accept her back.
[13]
In addition to his evidence in the original
proceedings, which I have just alluded to, Rasilingwani gave further
evidence of the
impairment of the trust relationship based on a
report from the IR Department on the applicant’s poor relations
with the
people she had supervised in her Department. It was evident
that he was concerned that these problems would be revived if she
returned
to Eskom. Another factor concerned allegations she made
against him of allegedly holding secret meetings with her staff about
her
which he denied doing, though he confirmed that his working
relationship with her was not good because of all the complaints from
her staff about her which had caused her department to be
dysfunctional. This evidence was effectively not contested.
[14]
Rasilingwani also testified that the
applicant’s responsibilities had been absorbed under other
posts since her dismissal
and her post as such no longer existed. Of
course, that would only be relevant if the question of the
practicability of her returning
to her former post was under
consideration, if her dismissal was found to be unfair
[15]
In conclusion, on the evidence available,
the arbitrator’s findings which led him to conclude that the
applicant was guilty
and that the sanction of dismissal was
appropriate in the circumstances are certainly not ones that no
reasonable arbitrator could
reach.
[16]
I am aware that the applicant was
previously successful in the original arbitration and that in
launching this application she did
not act frivolously. Accordingly,
it would not be appropriate to award costs against her in this
instance.
Order
[17]
In light of the above,
17.1
the review application is dismissed, and
17.2
no order is made as to costs.
R
LAGRANGE, J
Judge
of the Labour Court
Appearances:
For
the Applicant: C G Grové
of Smit &
Grové Attorneys
For
the Third Respondent: F Boda
Instructed
by: Mabuza Attorneys
[1]
(2014)
35
ILJ
943
(LAC)
[2]
2013
(6) SA 224
(SCA)