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[2015] ZALCPE 28
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Cecil Nurse (Pty) Ltd v Busakwe NO and Others (PR174/2013) [2015] ZALCPE 28 (29 April 2015)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
no: PR 174/2013
In
the matter between:
CECIL
NURSE (PTY)
LTD APPLICANT
And
B
BUSAKWE
NO
FIRST
RESPONDENT
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION SECOND
RESPONDENT
TELA,
NE THIRD
RESPONDENT
Heard
:
24
April 2015
Delivered
:
29
April 2015
JUDGMENT
VAN
NIEKERK J
[1] This
is an application to review and set aside an arbitration award issued
by the first respondent, to whom
I shall refer as ‘the
commissioner’. In his award, the commissioner held that the
third respondent, the applicant in
the arbitration proceedings under
review, had been unfairly dismissed. The commissioner awarded
compensation amounting to the equivalent
of three months’
remuneration.
[2] The
award was issued after the third respondent had challenged her
dismissal by the applicant on charges of
dishonesty and gross
negligence. At the arbitration hearing, the branch manager of the
applicant testified as to the applicant’s
policy on the use of
the telephone. Employees have a monthly allowance of R25 for private
calls. Any private calls over and above
this amount would be paid for
by employees. The system depended on honesty – employees were
provided with a computer printout
and were required to mark their
private phone calls. Any amount in excess of the monthly allowance
would then be deducted from
each employee’s salary. In the
third respondent’s case, on or about 1 July the applicant
submitted her disclosure of
private phone calls made in June 2013.
She failed to disclose two private calls. On 23 July 2013 she was
requested to recheck the
telephone record sheet, which she confirmed
as correct. The private calls that she omitted to mark as private
comprised one of
14 minutes duration, the other 2 hours and 16
minutes. The value of the calls amounted to some R130. The witness
also testified
that on 18 July 2013, the applicant was instructed to
deal with the submission of tender documents with a deadline of the
afternoon
of 22 July 2013. The applicant failed to complete the
tender document, with serious consequences for the applicant.
[3] It
is not disputed that during April 2013, the applicant had been
counselled for the same offence and advised
specifically that in the
event of a repetition, action would be taken against in terms of the
disciplinary code.
[4] The
third respondent also testified and sought to explain the
circumstances that surrounded to inability to
meet the deadline for
the submission of the tender. In regard to the charge relating to the
use of the telephone, the third respondent
admitted to having abused
the telephone policy, but denied that she had been dishonest.
[5] In
his analysis of the evidence, the commissioner accepted that all of
the charges except that relating to
the use of the telephone ought
properly to have been the subject of progressive discipline (on the
basis that the third respondent
had not acted negligently or
deliberately refuse to follow an instruction) but that the one charge
that potentially attracted the
penalty of dismissal, even for a first
offence, was that of dishonesty. In this regard, the commissioner
came the following conclusion
19. I accept that the
failure of the applicant to submit an accurate telephone record
amounts to dishonesty. The record she submitted
was not truthful.
However, I do not believe that under the circumstances dismissal
should have followed. The applicant conceded
that the record was
inaccurate. She pleaded guilty to the charge. She had remorse in my
view. It would be unfair under the circumstances
to follow the
counselling 15 April 2013 with dismissal.
[6] At
the hearing of the present application, the primary ground for review
advanced by the applicant was that
the commissioner committed a gross
irregularity and/or acted unreasonably insofar as he found that
notwithstanding that the third
respondent had committed an act of
dishonesty, a sanction less than dismissal was fair in the
circumstances. This is particularly
so, contended the applicant, in
circumstances where as in the present instance the employee had
admitted that the employment relationship
had been irreparably broken
down on account of her conduct and where the applicant’s
disciplinary code, providing as it does
a penalty of dismissal for
dishonesty, was ignored by the commissioner. Further, the applicant
contends that the commissioner failed
to take into account the fact
that the third respondent occupied a position of trust where she
dealt with cash and tenders and
that she had been employed by the
applicant, as the commissioner records, for ‘a very short
period’.
[7] In
the assessment of an appropriate sanction for misconduct that is
either admitted or found to exist, the
approach to be adopted by
commissioners was affirmed in
Sidumo v Rustenburg Platinum Mines
Ltd
[2007] ZACC 22
;
2008 (2) BCLR 158
(CC), where the Constitutional Court said
the following:
[78] In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances.
He or she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course
consider the reason
the employer pays the sanction of dismissal, as he or she must take
into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, with
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long service record. This is not an exhaustive list.
[79] To
sum up. In terms of the LRA, a commissioner has to determine whether
a dismissal is fair or not. The commissioner
has not given the power
to consider afresh what he or she would do, but simply to decide
whether what the employer did was fair.
In arriving at a decision
they commissioner is not required to defer to the decision of the
employer. What is required is that
he was she must consider all
relevant circumstances.
[8] In
the present instance, in determining that a penalty short of
dismissal was warranted for the third respondent’s
dishonesty,
the commissioner appears to have taken into account the fact that the
third respondent pleaded guilty to the charge
of dishonesty, that she
showed remorse and that the telephone records were only brought to
her attention some two weeks after the
incident involving the tender.
The commissioner goes on to conclude, as indicated above, that ‘
In
view of these factors are found that the sanction of dismissal
imposed on the applicant was harsh
’.
[9] The
commissioner’s reasoning does not represent an accurate
reflection of the evidence before him. The
third respondent’s
evidence was that she ‘eventually admitted’, prior to the
disciplinary hearing and in the
face of an initial denial, that the
two phone calls were private. Her main contention at the hearing was
that the applicant ought
to have afforded her a further warning. The
delay of some two weeks between the availability of the print out of
telephone calls
made and the charge brought against the third
respondent was not significant and there is no basis on the evidence
to read in,
as the commissioner appears to have done, some conspiracy
against the third respondent that linked the telephone incident with
that of the tender. There can be no doubt from the material before
the commissioner that the third respondent was aware that she
was
required to mark all private calls, and that she failed to mark the
calls in question. It is also not disputed that the third
respondent
was counselled for the same offence during April, and that she was
aware that the consequence of committing the same
offence would be
disciplinary action.
[10] More
fundamentally though, it is apparent from the terms of the award that
the commissioner failed to consider
any of the applicant’s
interests, as he was obliged to do. Nor is there any indication that
he considered the long established
rule applied in this court and by
the Labour Appeal Court, i.e. that the presence of dishonesty tilts
the scales to an extent that
even the strongest mitigating factors,
such as long service and a clean record, against the sanction of
dismissal in cases of dishonesty.
(See, for example,
Shoprite
Checkers (Pty) Ltd
v CCMA & others
[2008] ZALAC 9
;
[2008] 9
BLLR 838
(LAC), where the LAC referred with approval to and applied
Standard Bank SA Limited v CCMA and others
[1998] 6 BLLR 622
(LC):
It was one of the
fundamentals of the employment relationship that the employer should
be able to place trust in the employee…A
breach of this trust
in the form of conduct involving dishonesty is one that goes to the
heart of the employment relationship and
is destructive of it.’
[11] The
applicable test requires a commissioner to act impartially and to
consider all of the relevant facts and
circumstances; those that
serve to aggravate as well as those that serve to mitigate. In this
way, the balancing of interests as
between employer and employee
reflected in the
Sidumo
approach, and the fairness to both
that it requires, can be achieved. In the present instance, the
commissioner patently failed
to identify and balance any interests
other than those that served to advance the third respondent’s
case and thus in my
view, committed a reviewable irregularity. His
limited and ultimately partial enquiry had the result of a decision
to which a reasonable
decision-maker could come on the available
evidence.
[12] There
is little point in remitting the matter for rehearing. The record is
complete and the court is in as
good a position as any other
commissioner to make a ruling on the merits. Having regard to the
third respondent’s short period
of service, the gravity of the
offence, the third respondents admission that the relationship
between her and her employer was
irreparable and given particularly
the fact that she had been warned some three months prior to the
incident that a repeat offence
would attract disciplinary action, the
commissioner’s decision should be substituted with one to the
effect that the third
respondent’s dismissal was substantively
fair. Also relevant is the approach to be adopted in the case of
offences involving
dishonesty, to which I have referred above. The
applicant did not pursue the issue of costs and in those
circumstances, I intend
to make no order as to costs.
For
the above reasons, I make the following order:
1.
The arbitration award issued by the first respondent under case
number ECPE 3764 – 13 dated 7 October
2013 is reviewed and set
aside.
2.
The award is substituted by the following:
‘
The applicant’s
dismissal was substantively and procedurally fair’
3.
There is no order as to costs.
Andre
van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv F Venter, instructed by Ferreira Attorneys
For
the third respondent: Ms E van Staden, Legal Aid SA