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 372
|
|
Mlondobozi v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR2447/11) [2015] ZALCJHB 372 (27 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG)
JUDGMENT
Not reportable
Case No.: JR2447/11
In
the matter between:
SOLLY
MLONDOBOZI
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
(“CCMA”)
First Respondent
COMMISSIONER
MOHAMED RAFFEE
(“THE
ARBITRATOR”)
Second Respondent
ABSA
BANK
LTD
Third Respondent
Heard:
9 January 2014
Delivered:
27 October 2015
JUDGMENT
PILLAY,
AJ:
[1]
This is an application to review and set aside an arbitration award
issued by the Second Respondent
dated 22 September 2011, which found
that the dismissal of the Applicant was both procedurally and
substantively not unfair.
[2]
The Applicant challenged these findings. The challenge appears to be
on the following grounds:
2.1
The Second Respondent’s findings
evince a failure to apply his mind, gross irregularity, misconduct in
his duties and unreasonableness.
For this he relies on items such as
taking into account his seniority and earnings, which the Applicant
considers to be irrelevant
considerations.
2.2
The Second Respondent committed a gross
irregularity that rendered the arbitration hearing unfair in a latent
manner. The Second
Respondent ignored the issues to be decided upon
and speculated on issues more than making factual findings. In doing
so, the Second
Respondent failed to consider whether the Applicant
was guilty of any offence.
2.3
The Second Respondent committed gross
misconduct by failing to consider whether the appropriate sanction
was dismissal. The contention
is that the Second Respondent, in doing
so, deferred to the Third Respondent. This, he contends, is not the
decision of a reasonable
decision-maker.
Facts
[3]
The Applicant was employed as Group Consultant: Equality and
Diversity
[4]
The Applicant sent a document titled a
letter of guarantee
to
the amount of approximately R3 900 000.00 to Mr Marais of Opmar
Trading CC. This was done on the Third Respondent’s letterhead.
This was in response to a letter from Mr Marais where he stated,
inter alia
:
‘
The
amount including the return on your money, the transport that I am
paying for, the cost of the bag and my share equal R3 856
560 (this
is the amount that I need a (guarantee letter) for). You can round
this amount if you wish to do so.
My
company name: Opmar Trading CC, that need to appear on the Absa
letter’.
[5]
The Applicant instructed his secretary to put this information on an
Absa letterhead and send it to
Mr Marais. The content of the letter
reads as follows:
‘
This
is to confirm that Mr Solly Mlondobozi will be providing investor
funding initially to the tune of R3 900 000 covering the
period July
and August 2010, then thereafter the necessary adjustment will be
made as and when needed’.
This
funding will be provided for OPMAR TRADING CC.
”
[6]
The Applicant wrote a further letter/email dated 30 June to Mr Marais
where he made the following material
statement:
‘
I
have asked my partner who you spoke to last Friday, Dr Enos Banda to
also engage with you directly on both deals. This would also
help to
sort things out in case I am not around. He has also asked that you
tell us the minimum so that we know the highs and lows
of the VITO
deal. I asked him to meet up with you on Monday when he returns from
holiday. His contact details are…, I will
also give him your
contact details. Let me know how it goes with your lawyer, and when
we will progress from there. Dr Banda might
also be able to assist
with this process’.
[7]
The Applicant was found guilty of various charges and dismissed in
absentia. The Applicant was aware,
on 15 October 2010 that the
hearing would resume on 25 October 2010. The Applicant did not arrive
on 25 October 2010. The matter
proceeded.
[9]
The Applicant testified that in the letter dated 29 January (which
was on the Third Respondent’s
letterhead) his contention was
that the letter/guarantee was done in his personal capacity. He used
his personal assistant to draw
up this letter. There was no policy
that an employee could not use the Third Respondent’s
letterhead.
Analysis
[10]
The Applicant contends in his first ground of review that the Second
Respondent identified an incorrect issue as
the issue in dispute. He
alleges that, in stating in general terms that any letterhead holds a
representation, the Second Respondent
made speculations and ignored
the true dispute.
[11]
He contends that irrelevant considerations, such as his level of
sophistication and earnings, were considered in
determining the true
issues before the Second Respondent. This evidence, as the founding
affidavit goes, resulted in the Second
Respondent failing to apply
his mind to the issue of determining whether there was
misrepresentation and lack of authority.
[12]
The Applicant deliberately instructed his personal assistant to
prepare the email/letter in which he stated:
‘…
Solly
Mlondobozi will be providing investor funding…’
[13]
In my view, it is significant that this letter was prepared on the
Third Respondent’s letterhead. It is also
significant that the
instruction to prepare the letter was given to a personal assistant.
The personal assistant is an employee
of the Third Respondent. She
ought not to be doing any work for the Applicant that was related to
his personal affairs. The instruction
to the personal assistant had
to be an instruction that related to his tasks as an employee of the
Third Respondent. She had to
accept it as a work related instruction.
If anything, there had to be a direct instruction that the content
was not to be on the
Third Respondent’s letterhead if this was
the Applicant’s intention.
[14]
Furthermore, the Applicant ought to have known that the use of a
letterhead of his employer would reasonably create
the impression in
the mind of any reader of that document that the content of the
letter would be read on the basis that it came
from the entity whose
letterhead held the content of that letter. A letterhead is for the
purpose of identifying the sender of
a document.
[15]
The content of any letter that is disseminated on the letterhead of
an entity would reasonably cause that reader
to conclude that the
author of the letter is authorised to disseminate its content.
[16]
The findings falls within a band of reasonableness. There is nothing
unreasonable in finding that disseminating
content on a letterhead
would cause a reasonable reader to conclude that the letter comes
from that entity and that the writer
is authorised to disseminate its
contents. There was a misrepresentation.
[17]
The Second Respondent’s finding that the Applicant is guilty on
Charge 1 is not a decision that no reasonable
decision-maker could
arrive at.
[18]
For the Applicant to demonstrate that there is a reviewable
irregularity, he had to demonstrate that the decision
reached by the
commissioner is not the decision of a reasonable decision-maker. I
cannot find that the Second Respondent failed
to apply his mind to
the true issue, which was whether there was misrepresentation and/or
authority.
[19]
The Third Respondent was prejudiced by the misrepresentation.
[20]
The Second Respondent took into account relevant considerations. This
included the seniority of the employee. This
is a relevant
consideration in determining whether, as a reasonable person at that
level, the Applicant ought to have known that
his use of the
letterhead would create the impression in the mind of a reader that
the letter was disseminated by the Third Respondent.
The Second
Respondent did not commit misconduct in his duties.
[21]
The conclusion that the Applicant was guilty on Charge 1 was not a
conclusion that no reasonable decision-maker
could have arrived at.
Second
ground of review
[22]
The second ground of review is that the Second Respondent s finding
that the use of the term “
partner
” was deliberate
and gave an impression that Dr Banda was a partner and nothing else.
The charge was about misrepresentation,
dishonesty, and engaging in a
relationship that constitutes a conflict of interest and a breach of
policies.
[23]
Charge 2 relates to dishonesty and/or misrepresentation and/or
engaging in a relationship that constitutes a conflict
of interest.
As I see it, the thrust of the charge relates to a conflict of
interest. In particular, it relates to the Applicant’s
reference to Mr Banda as a “
partner
”. The material
portion of the letter, which was addressed to Mr Marais, states as
follows:
‘
I
have asked my partner who you spoke to last Friday, Dr Enos Banda to
also engage with you directly on both deals’.
[24]
It was the Applicant who referred to the relationship with Mr Banda
as a partnership. He went on to refer to two
deals in relation to
this partnership. This partnership involved various entities that
have a relationship with the Third Respondent.
The Third Respondent’s
policy on this issue of a conflict of interest is clear. The
Applicant was not entitled to engage
in any activity, practice, act
or omission that conflicted with or could potentially conflict with
the interests of the Third Respondent,
its stakeholders, vendors
and/or suppliers.
[25]
In particular, the Applicant finalised Freetel’s appointment as
a vendor of the Third Respondent. Dr Banda
is a majority shareholder
in that company. The Applicant’s reference to “
two
deals
” demonstrates that the relationship with Dr Banda was
a partnership. The use of the word “
deal
”
demonstrates that this partnership was not a matter of seeking
advice.
[26]
The conclusion that there was a partnership that gave rise to a
conflict of interest is not unreasonable. The decision
by the Second
Respondent is not a decision that no reasonable decision-maker could
have arrived at.
Third
ground of review
[27]
The Applicant alleges that there was a gross irregularity in that the
Second Respondent speculated on what the
issue was rather than making
a factual finding. As it goes, the Applicant suggests that the Second
Respondent did not consider
whether the conclusion he arrived at in
fact made him guilty of any offence. It is not clear what factual
findings the Applicant
relies on for this ground of review.
[28]
At paragraph 15 of the founding affidavit, there is a reference to
the Second Respondent taking into account the
Applicant’s
seniority and earnings. The Applicant alleges that these are
irrelevant considerations. He also relies, when
he summarises the
facts, on the Second Respondent finding that he had to have an
unblemished record and conduct himself in a way
in which integrity
would not be called into question taking into account his position
and earnings.
[29]
The Applicant was in a senior position with the Third Respondent.
Consideration of his seniority allows a fact
finder to, on a balance
of probabilities, consider the accepted principle that, in general,
there are higher standards of performance
and competence that are
expected of senior or managerial employees than of the ordinary
worker.
[1]
The Second Respondent’s reliance on the Applicant’s
seniority is not unexpected. It is a relevant consideration that
would impact on the balance of probabilities, more so in the banking
industry.
[30]
The Applicant’s allegations on his third ground are vague. He
has also not demonstrated that the conclusion
that the Second
Respondent came to are not conclusions that no reasonable
decision-maker would arrive at. He has not also demonstrated
that he
is prejudiced by any finding by the Second Respondent.
Fourth
ground of review
[31]
The Applicant alleges that the Second Respondent committed gross
misconduct in his duties as an arbitrator by failing
to consider
whether the conclusions he came to justify dismissal as a sanction.
The Second Respondent found the applicant guilty
of misrepresentation
and dishonesty-related offences. The Applicant is in the banking
industry. The misrepresentation was to the
tune of R3 900 000.00.
[32]
A finding that dismissal is an appropriate sanction is not a finding
that no reasonable decision-maker could arrive
at. The Supreme Court
of Appeal has found, in
Herholdt v
Nedbank Ltd and Another
(2013) 34 ILJ
2795 (SCA), that:
‘
material
errors of fact, as well as the weight and relevance to be attached to
the particular facts, are not in and of themselves
sufficient for an
award to be set aside but are only of consequence if the effect is to
render the outcome unreasonable’.
[33]
I agree that the absence of a decision on what the appropriate
sanction is amounts to gross misconduct in his duties
as an
arbitrator. This, however, is not sufficient to render the outcome
that the dismissal was substantively fair as one that
no
reasonable-decision maker could arrive at.
[34]
The Applicant, in a senior position in the banking world, was found
guilty of dishonesty-related offences. No reasonable
bank could
retain him in their services. A decision that the sanction is
fair is not a decision that no reasonable decision-maker
could arrive
at. The decision that the Applicant’s dismissal was
substantively fair is not a decision that no reasonable
decision-maker could arrive at.
[35]
The Applicant seeks an order setting aside the decision by the Second
Respondent that his dismissal was both procedurally
and substantively
fair. He, however, in his founding papers, makes no case to conclude
that the decision that the dismissal was
procedurally fair is one
that no reasonable decision maker could arrive at. For this reason, I
am not required to apply my mind
to this enquiry and/or portion of
the prayer.
Conclusion
[36]
In the circumstances, I make the following findings:
(a)
the application is dismissed;
(b)
there is no order as to costs.
_____________________
Pillay AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES
For the Applicant:
Mr Moshoana
Instructed
by:
Mohlaba & Moshoana Inc.
For the Respondent:
Cliffe Dekker Hofmeyr Inc.
[1]
Grogan,
Workplace Law, pp 305 - 306