About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 356
|
|
Emfuleni Local Municipality v SALGBC and Others (JR2525/11) [2015] ZALCJHB 356 (14 October 2015)
REPUBLIC
OF SOUTH AFRICA
REPORTABLE/NOT
REPORTABLE
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR2525/11
In the matter
between:
EMFULENI LOCAL
MUNICIPALITY
APPLICANT
and
SALGBC
FIRST RESPONDENT
MATLALA
NO
SECOND RESPONDENT
SAMWU OBO NAOMI
PAULINE TWALA
THIRD RESPONDENT
Heard
:
11 June
2015
Delivered
:
14 October 2015
Summary: Review –
dismissal for misconduct - evidentiary burdens
JUDGMENT
WHITCHER
J
[1]
The Applicant seeks to review and set aside an arbitration award in
which the second
respondent (‘the arbitrator’) found that
the dismissal of the employee, Naomi Pauline Twala, was substantively
and
procedurally unfair and ordered her reinstatement.
[2]
Before I proceed to the merits of the application, I need to address
the Applicant’s
failure to timeously file heads of argument.
The review application and the record were timeously filed in
November 2011 and 2012
respectively. However, the Applicant filed its
heads of argument on 9 June 2015, one business day before this
hearing, despite
having being called upon by the Registrar and the
employee’s attorney to file heads of argument on 23 July 2013,
the 17 March
2014 and 27 March 2015. I decided not to strike the
matter from the roll because this would further delay the matter, and
the conduct
of the Applicant can be addressed with an appropriate
cost order. Moreover, the grounds of review are set out in sufficient
detail,
with reference to the record, in the Applicant’s
founding and supplementary affidavits.
Background
facts
[3]
In 1986 the employee became employed by the Applicant. At the time of
her dismissal
she was working as a clerk in the municipal courts
division of the Applicant. It is common cause that in the employee’s
line
of work, only prosecutors and magistrates have the authority to
cancel traffic fines. The employee’s function was to process
(“capture”) authorized cancellations of traffic fines in
the Applicant’s “contravention system”.
It is also
common cause that the clerks access the system via personal user
names and passwords.
[4]
In September 2010, the Applicant discovered that on the 2, 3 and 6
September 2010,
a total of 29 traffic fines, totaling R26 000.00,
were cancelled without the relevant authority, 18 of which had been
issued
to the same family. The cancellations were processed with the
employee’s username and password.
[5]
The employee was charged with three counts of misconduct, namely (1)
“gross
misconduct in that on 2, 3 and 6 September you
improperly and unlawfully withdrew traffic cases on the contravention
system”,
(2) “gross dishonesty and/or fraud in that on 2,
3 and 6 September you wilfully and with intention to defraud withdrew
29
cases of traffic cases…for personal gain”, and (3)
“gross dereliction of duty”.
[6]
For reasons not explained at the arbitration, the chairperson of the
disciplinary
hearing withdrew the charge of “gross dereliction
of duty”.
[7]
The employee pleaded guilty to the first two charges at the
disciplinary hearing.
After considering submissions on mitigating and
aggravating circumstances, the chairperson of the disciplinary
hearing found dismissal
to be the appropriate sanction.
The
arbitration award
The
issue of guilt
[8]
At the arbitration, the employee pleaded not guilty to the charges.
She claimed that
the prosecutor in her case misled her into pleading
guilty at the disciplinary hearing. The prosecutor told her and her
trade union
representative, Mr Mofokeng, that if she pleaded guilty
he would ask the chairperson of the hearing to hand down a lenient
sentence;
which he did. After he addressed the chairperson on
aggravating circumstances, he recommended a sanction short of
dismissal. She
was therefore shocked when the presiding officer
recommended dismissal as the appropriate sanction.
[9]
Mr Mofokeng’s version differed from that of the employee in
that, on his account,
the prosecutor categorically promised that the
employee would be issued with a final written warning if she pleaded
guilty.
[10]
During cross-examination the employee conceded that she was not
forced to plead guilty. It was
suggested to her that a prosecutor
could only offer advice since final decision rested with the
chairperson of the disciplinary
hearing.
[11]
The arbitrator refused to admit the evidence of the alleged
undertakings provided by the prosecutor
because the prosecutor was
not called as a witness to confirm same. The propriety of this ruling
is questionable but it is not
under cross-review; so it stands. This
means that the arbitrator had before him the following material fact:
at her disciplinary
hearing, the employee pleaded guilty to charges
of dishonestly and unlawfully cancelling the traffic fines in
question.
[12]
I turn now to the other evidence that was before the arbitrator
regarding the guilt of the employee.
[13]
As stated earlier on, it was common cause that on 2, 3 and 6
September 2010, a total of 29 traffic
fines, totaling R26 000.00,
were unlawfully cancelled and the cancellations were processed with
the employee’s username
and password.
[14]
Mrs Bouwer, the employee’s chief superintendent, testified that
all the clerks have personal
passwords which they personally create
for security reasons. They are not permitted to disclose their
passwords to anyone, including
other clerks for obvious reasons. The
rule is that if they inadvertently or for some other reason disclosed
their password to anyone,
they must immediately report this. Bouwer
agreed that, if the employee had accessed the traffic fine system
using her password
and had then “left her computer open”,
some other clerk could have cancelled the fines.
[15]
The employee denied cancelling the traffic fines in question. She
claimed that “she must
have left her computer open”
during a busy period and as a result some other clerk had then
cancelled the fines.
[16]
When she was cross-examined, she was referred to the findings of the
disciplinary chairperson
which indicated that she had provided a
different defence at the disciplinary hearing. In mitigation of
sentence she had claimed
that she may have inadvertently disclosed
her password to other clerks.
[17]
In the end, the arbitrator found the Applicant had failed to prove
that the employee’s
conduct was dishonest or amounted to fraud.
In essence, he found that the Applicant had failed to prove the
charges brought against
the employee. In his view, the evidence, at
most, disclosed that the employee was only guilty of contravening the
rule against
leaving her computer open and sharing her password with
other clerks.
[18]
The Applicant pointed out that the arbitrator merely set out a
conclusion with no articulated
reasons (substantiation) for his
findings.
[19]
This approach by the arbitrator to the evaluation of evidence
constitutes an irregularity by
the arbitrator. However, t
he
court must still have regard to the issues and the evidence as a
whole to determine whether or not the outcome is nevertheless
capable
of being sustained. The Labour Appeal Court said this in the
following terms:
“
The
court must nonetheless still consider whether, apart from the flawed
reasons of or any irregularity by the arbitrator, the result
could be
reasonably reached in light of the issues and the evidence”
[1]
[20]
The Applicant submitted that the arbitrator clearly did not
appreciate the inferences which arise
from the following facts viewed
together, namely that not one, or a few, but
29 separate
transactions were processed over different days (2, 3 and 6
September) on the same employee’s computer and password.
[21]
The Applicant submitted that these “coincidences” and the
fact that the employee
pleaded guilty to the charges at the
disciplinary hearing would have led a reasonable decision-maker to a
conclusion that on a
balance of probabilities the employee was guilty
of the charges.
[22]
Before I make my findings it is useful in this case to set out
certain trite rules of evidence.
In misconduct disputes the employer
need only show that, on
all
the
evidence presented by both parties, its version is more probable than
the employee’s version.
[23]
During an arbitration, while the overall onus never shifts from the
employer, the need to present
or counter evidence may rest on
different parties. In a case involving misconduct, once the employer
has fleshed out its allegations
with evidence to a degree that its
version requires an answer or rebuttal lest it be believed, the
evidentiary burden shifts onto
the accused employee to prove
otherwise.
[24]
For example, in
Woolworths
(Pty) Ltd v CCMA and Others
,
[2]
the
Labour Appeal Court held that video footage capturing an employee
concealing merchandise on her person while working in a retail
store
constitutes a
prima
facie
case
of dishonesty against the employee. This then shifts the evidentiary
burden to the employee. In the absence of a credible and
probable
explanation from the employee, the inference that the arbitrator can
most reasonably draw is that the employee acted dishonestly
and that
the employer has discharged its onus.
[25]
A further relevant rule of evidence is that an employee is not
entitled to the benefit of the
doubt as to the convincing nature of
his or her explanation. On raising a particular defence, an
evidentiary burden falls on the
employee to establish that his or her
version is likely. It is not necessary for the employer to adduce
evidence to disprove positively
a defence, especially if the defence
is within the unique knowledge of the employee.
An
employer must prove its own case on a balance of probabilities. If it
does so, it therefore flows that the employee’s case
is false.
[26]
It follows from the above mentioned judgment and rules of evidence
that once the Applicant proved
that 29 separate transactions were
unlawfully processed over separate days (2, 3 and 6 September) on the
same person’s computer
and personal password, namely that of
the employee, proved that the employee was at work on those days,
proved the rule against
disclosing passwords and proved that the
employee voluntarily plead guilty to the charges, the Applicant had
established a
prima facie
case
of unlawful conduct and dishonesty on the part of the employee.
[27]
In the absence of a credible and reasonable explanation from the
employee, the inference that
the arbitrator should most reasonably
have drawn is that the employee is guilty and that the Applicant
employer has discharged
its onus.
[28]
The question that thus arises is whether the employee provided a
reasonable explanation in rebuttal?
In my view, she did not. What she
provided were vague, unsubstantiated and inconsistent explanations.
[29]
At the disciplinary hearing her defence was that she may have
disclosed her password to some
unidentified clerks. Important details
such as to who and when she disclosed her password are missing.
Moreover, considering the
strict rule against disclosing passwords
and the purpose of having a confidential password, the issue of why
she disclosed her
password is critical. She never explained why she
disclosed her password in contravention of the rule. Considering that
she used
this defence at the disciplinary hearing, which was not long
after the events, it follows that she would have been in a position
to consider and recall such details, but she was silent on these
details at the disciplinary hearing and the arbitration. It is
reasonable to conclude that she was silent on these matters because
they did not exist.
[30]
At the arbitration, the employee’s defence then changed to the
vague and unsubstantiated
possibility that she may have left her
computer “open”.
[31]
She claimed that it was common practice for clerks to leave their
computers open during busy
periods. Considering the sensitive nature
of the work the employee did and the purpose of the passwords, this
is a startling claim
and, as such, needed some confirmation either
from a fellow clerk or, more easily, Mrs Bouwer who was in attendance
at the arbitration
and was cross-examined on the operating procedures
of the clerks.
[32]
In light of all the above, including the Applicant’s
submissions regarding the “coincidences”
(as described
earlier on), the arbitrator’s bald finding that the Applicant
failed to prove the misconduct charges is not
a reasonable and
rational conclusion.
[33]
At most, the employee created a hint of doubt and the remote
possibility that some other person
committed the offence. But this
was not sufficient in light of the standard of proof applicable in
labour disputes.
In
Potgietersrus
Platinum Ltd v CCMA and Others
[3]
,
the
Court held that an arbitrator incorrectly applied the required
standard of proof. The arbitrator accepted the remote possibility
that persons other than the accused employee had committed the
offence, thus superseding the greater probability that the employees
had committed the offence.
Inconsistency
[34]
Mr Mofokeng testified that at some time in the past he represented a
Mr Ntuli who pleaded guilty
to theft and bribery charges and on the
basis of his plea he was demoted, and not dismissed. Mr Mofokeng also
claimed that a Ms
Fortuin pleaded guilty to charges of
insubordination and the use of abusive language but was not
dismissed.
[35]
On the basis of this testimony, the arbitrator
found
that
the Applicant was inconsistent in its application of
disciplinary sanctions to employees who had committed the same or
similar offences,
and as a consequence the employee’s dismissal
was substantively unfair.
[36]
Firstly, Ms Fortuin’s issue did not involve the commission of
the same or similar offence.
Secondly, the Applicant demonstrated
with reference to the record that the defence of inconsistency was
not disclosed in the employee’s
opening statement and was not
put to the Applicant when it led its case first. The Applicant thus
had no notice that this was a
case to meet at the arbitration. The
arbitrator furthermore did not alert the Applicant to their right to
rebut same after the
employee’s case. The Applicant was thus
denied their right to a fair hearing on this issue.
[37]
The arbitrator moreover failed to appreciate and apply the correct
legal principles applicable
to historical inconsistency in the
exercise of discipline. The arbitrator failed to appreciate that an
employee cannot profit from
such prior decisions of an employer,
especially if the decision is questionable.
[4]
The arbitrator accordingly committed a material error of law.
Bias
chairperson
[38]
The arbitrator found that the chairperson of the disciplinary hearing
was not “impartial”
because, according to the testimony
of Mr Mofokeng, the chairperson remained in the room while the
parties discussed the plea bargain.
[39]
Contrary to the arbitrator’s findings, the Applicant
demonstrated, with reference to the
record, that there was no
testimony to the effect that the parties discussed the merits of the
case in the chairperson’s
presence and disclosure of a plea
bargain to the chairperson does not disqualify a chairperson. It is
also relevant that, despite
the abovementioned finding, the
arbitrator found that the chairperson gave the employee a fair
hearing.
Appeal
hearing
[40]
The arbitrator found that the dismissal of the employee was
procedurally unfair because the Applicant
did not hold a formal
appeal hearing but determined the employee’s appeal against her
dismissal on the parties’ written
submissions. The Applicant
did not pursue its challenge to this finding. The ruling of the
arbitrator therefore stands.
[41]
Considering the limited nature of the procedural unfairness and the
facts before me, I do not
consider it expedient to remit the matter
to the First Respondent to determine the appropriate compensation. I
consider one month’s
compensation to be fair.
Conclusion
[42]
In light of my findings, I make the following order:
1.
The arbitration award of the Second Respondent is reviewed and set
aside and substituted with an award that:
(a)
The dismissal of the employee, Naomi Pauline Twala, was substantively
fair but procedurally unfair.
(b)
The employer is ordered to pay the employee one month’s
compensation within twenty one (21) days of the date of
this award.
2.
There is no award of costs against the Third Respondent.
___________________________
Whitcher J
Judge
of the Labour Court
APPEARANCES
For
the Applicant: Adv Moretlwe instructed by Kgokong Nameng Tumagole Inc
For
the Third Respondent: R Daniels from Cheadle Thompson and Haysom
[1]
Head
of the Department of Education v Mofokeng & others
[2015]
1 BLLR 50
(LAC) at para 31.
[2]
(2011)
32
ILJ
2455 (LAC) at para 34.
[3]
(1999)
20 ILJ 2679 (LC).
[4]
See:
Southern
Sun Hotels Interest (Pty) Ltd v CCMA and Others
(2010) 31 ILJ 452 (LC).