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[2015] ZALCD 47
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Mathews v Commission for Conciliation Mediation And Arbitration and Others (D128/12) [2015] ZALCD 47 (7 August 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
Not
Reportable
Case no: D128/12
In
the matter between:
DR.
WAYNE MATHEWS
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
G
JENKINS N O
Second Respondent
EZEMVELO
WILDLIFE
Third Respondent
Heard:
21 May 2015
Delivered:
7 August 2015
Summary:
review. Application dismissed
JUDGMENT
GUSH J
[1]
This is an application to review and set
aside the second respondent’s award under case number KNPM
846/11 dated 13 December
2011. In the award, the second respondent
concluded that the third respondent’s dismissal of the
applicant was fair both
substantively and procedurally and dismissed
his claim of unfair dismissal.
[2]
The applicant was employed by the 3
rd
respondent as a Regional Ecologist based at the Tembe elephant Park.
[3]
The third respondent had dismissed the
applicant following a disciplinary enquiry. The charges against the
applicant fell under
five headings namely:
a.
Misappropriation: improper use of EKZNW
money;
b.
Neglect or Improper performance of duties,
disregard of specification (Breach of Operating Instruction);
c.
Theft;
d.
Serious cases of poor workmanship, quality
and performance related to inadequate capacity to perform the task;
and
e.
Bringing organisation into disrepute –
does or causes to be done, any act, which is prejudicial or potential
prejudice to
Ezemvelo KZN wildlife.
[4]
Each of these charges included an
elaboration that formed part of the charge sheet.
[5]
At the conclusion of the disciplinary
enquiry, the applicant was found guilty of a number of these counts
of misconduct and was
dismissed. The misconduct of which the
applicant was found guilty and which lead to his dismissal related to
payments due to the
third respondent by the University of Pretoria in
respect of student field trips to the Tembe Elephant Park each year,
which payments
the applicant accepted into his own bank account and
failed to pay over these amounts into the third respondents bank
account for
some 5 months. Dissatisfied with his dismissal, the
applicant referred a dispute to the first respondent who in turn
appointed
the second respondent to conduct the arbitration.
[6]
The second respondent’s summary in
the award of the “ISSUES TO BE DECIDED” and the
“BACKGROUND” (under
these headings) were not challenged
by the applicant in his review application.
[7]
The second respondent succinctly records
the issue as “was the employee unfairly dismissed by the
employer and if so, what
is the appropriate remedy?”
[8]
The background (which the second respondent
records as “common cause alternatively undisputed”) is
set out as follows::
‘
5.1
the employee was employed by the employer as a regional ecologist
based at the Tembe elephant Park.
At the time of his dismissal the
employee had some eighteen years service with the employer and was
earning a basic salary of R24,335.45
per Month.
5.2
on or about 3 February 2011, the employee was charged with five
counts of misconduct, [the second
respondent then sets out the
details of the counts of misconduct]
5.3
[in this paragraph the second respondent recorded
inter alia
that the multiplicity of charges included some repetition in that
“they were classified under different categories of misconduct
– per the employer’s disciplinary code”]
5.4
The fifth charge was: disciplinary code number twenty-four: bringing
the organisation into disrepute
– does or causes to be done,
any act which is prejudicial or potentially prejudicial to his fellow
KZN wildlife.
5.5
following an internal disciplinary enquiry held in sixteen,
twenty-one twenty-five February 2011,
the employee was found guilty
on various counts and was dismissed on 25 February 2011.
5.6
Dartmouth University (USA) in partnership with the University of
Pretoria has, since about 1999,
arranged a student field trip to the
Tembe Elephant Park each year. The employee was closely involved in
these trips and with the
assistance of his technician, prepared an
annual invoice, for submission to Pretoria University to cover the
reimbursement Ezemvelo
staff for the use of Ezemvelo facilities by
the Dartmouth students.
5.7
from 1999 to 2007 these invoices were paid by Pretoria University to
Ezemvelo and the funds later
found their way into the employees
research account; however, securing the money from Ezemvelo’s
became more and more difficult
due to administrative bungling. This
became known to those involved at Pretoria University who decided to
pay the whole amount,
invoice and 25 August 2008, directly into the
employee’s personal banking account on 16 September 2008. Soon
after receiving
the money the employee telephoned Dr Jansen van
Rensburg at Pretoria University and asked him not to do this. He then
paid R14400.00
of the R27802.00 to Ezemvelo on 19 September 2008,
after deducting R13402.00 to pay himself and others, apparently for
their personal
time and travel devoted to the visiting students.
5.8
after the 2009 Dartmouth student visit, the employee raised an
invoice of R188440.00 for payment
by Pretoria University. The
University mistakenly paid the money directly into his personal
banking account on 27 October 2009.
For one or other reason he did
not pay the money into Ezemvelo but paid back R17210.00 to the
University of Pretoria on 31 March
2011; once again after the
deduction of certain disbursements. The money was later paid to
Ezemvelo by the University of Pretoria.
5.9
on 29 March 2010 the employee was interviewed by Groenewald –
the forensic auditor –
and assured Groenewald that the money
from the 2009 Dartmouth visit had been paid into Ezemvelo.
5.10
on 1 April 2010, Groenewald received a phone call from the employee
who then disclosed to him that he had
personally received the 2009
money for the Dartmouth visit and had intended to pay it (to
Ezemvelo) but had not yet done so.’
[1]
[9]
The misconduct that the 2
nd
respondent found the applicant to be guilty of and that justified his
conclusion that the dismissal was for a fair reason involved
the
payments made by the University of Pretoria of monies due to the 3
rd
respondent which monies the university paid directly into the
applicant’s bank account.
[10]
The applicant had accepted the payment from
the University of Pretoria into his own bank account during October
but failed to pay
the amounts into the third respondents bank account
for some 5 months.
[11]
Shortly after having received the amount in
his account the applicant failed to disclose the payment to the third
respondent’s
auditors.
[12]
On 29 March the following year the
applicant was interviewed by the 3
rd
respondent’s forensic auditor Groenewald (a witness at the
arbitration) and still did not disclose that the funds were in
his
account. During this interview the applicant assured Groenewald that
the money had been paid into the 3
rd
respondent’s account. This was not the case and the applicant
subsequently on 1 April telephoned Groenewald disclosing that
he had
received the money and had intended to pay it to the 3
rd
respondent but had not yet done so.
[13]
In the award the 2
nd
respondent records the applicant’s own admissions regarding the
payment of the monies which recording was not challenged:
the employee’s own
admissions in relation to the delay in paying the money back
included:
I
didn’t give it attention. When the auditors came (late 2010) I
didn’t want to touch it (the money). Then I went away
for
Christmas. Then I was all for 2 months with sciatica. Then Lionel
(auditor) came and I got scared
[2]
[14]
The
second respondent, recording under the heading “FINDING”,
came to the conclusion that the applicant “was dismissed
for a
fair reason and that his dismissal was effected in accordance with a
fair pre-dismissal procedure”.
[3]
[15]
Having come to this conclusion, the second
respondent proceeded to set out the reasons for this finding. The
second respondent recorded
that he confined his finding to the charge
of misconduct set out in charge 2.5 namely that the applicant was
guilty of “neglect
or improper performance of duties: in that
[the applicant] contrary to pre-scripts code of ethics of
Ezemvelo KZN wildlife and policy on financial
management [he] contravened the disciplinary code by allowing the
Ezemvelo KZN wildlife
monies to be deposited and kept into [his]
personal banking account without the authority of KZN wildlife”
which he noted
was the same as charge 1.4 save that charge 1.4 was
classified as “misappropriation or improper use of EKZNW money.
[16]
The second respondent was satisfied that
the third respondent had proved on a balance of probabilities that
the applicant had received
the payment for the 2009 Dartmouth visit,
an amount of R18410.00 which was deposited into his own bank account
and that it had
taken him a full five months to pay back the bulk of
the money. The second respondent was also satisfied that the money
had only
been paid back after the applicant had been interviewed by
the forensic auditor to whom he had not disclosed that the money was
not only still in his account had represented to the forensic auditor
that he had in fact paid the money over to the 3
rd
respondent
[17]
The second respondent was satisfied that
the applicant understood that his actions constituted misconduct and
that he was well aware
of the seriousness of his actions.
[18]
The second respondent has set out in the
award detailed reasons for his conclusion and finding. In particular,
the 2
nd
respondent has weighed up all the circumstances relevant to
determining the issue namely “whether fair reason existed to
justify his dismissal”.
[19]
The grounds upon which the applicant bases
his application to review and set aside the second respondent’s
award are basically
that the misconduct the second respondent found
the applicant guilty of namely allowing monies belonging to the third
respondent
to be kept in his account without authority and his
failure to disclose this to the auditor when interviewed does not
accord with
Ezemvelo’s policy and procedure. This
,
the applicant argue
s
renders the finding that the he was guilty of
misconduct a decision to which a reasonable decision-maker could not
come.
[20]
The difficulty with the applicant’s
grounds of review is that it is clear from a perusal of the record
and the award that,
at all times, it was perfectly obvious that the
applicant himself appreciated that he had done wrong by retaining the
funds in
his account and not disclosing this to the auditors.
[21]
The
test to be applied in determining whether an award is reviewable was
restated in the matter
Gold
Fields
Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation Mediation and Arbitration and Others
[4]
as
follows:
‘
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute? (ii)
Did the
arbitrator identify the dispute he was required to arbitrate (This
may in certain cases only become clear after both parties
have led
their evidence)? (iii) Did the arbitrator understand the nature of
the dispute he or she was required to arbitrate? (iv)
Did he or she
deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one that another decision-maker
could
reasonably have arrived at based on the evidence?’
[5]
[22]
In
so far as the applicant relies on “unreasonableness” as a
ground of review, it is apposite to refer to the matter
of
Head
of the Department of Education v Mofokeng and
O
thers
.
[6]
In this matter, the court specifically considers, in light of the
decisions in the Herholdt v
Nedbank
Ltd [2013
]
11
BLLR 1074
(SCA) and Goldfields, the “determination of whether a decision
is unreasonable”. The court held:
‘
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 the light of the issues and the evidence.
Moreover, judges of the Labour Court should keep in mind
that it is
not only the reasonableness of the outcome which is subject to
scrutiny. As the SCA held in
Herholdt
,
the arbitrator must not misconceived the enquiry or undertake the
enquiry misconceived manner. There must be a fair trial of the
issues. … Mere errors of fact or law may not be enough to
vitiate the award. Something more is required. To repeat: flaws
in
the reasoning of the arbitrator, evidenced in the failure to apply
the mind, reliance on irrelevant considerations or the ignoring
of
material factors etc must be assessed with the purpose of
establishing whether the arbitrator has undertaken the wrong enquiry,
undertaken the enquiry in the wrong manner or arrived at an
unreasonable result.’
[7]
[Footnote omitted]
[23]
In this matter, it is abundantly clear that
the second respondent allowed the parties a full opportunity to “have
their say”,
identified and understood the dispute he was
required to arbitrate and dealt with the substantial merits of the
dispute. They can
be no question regarding all the parties
understanding of the sequence of events that constituted the
misconduct let alone understanding
that the actions of the applicant
constituted misconduct.
[24]
The second issue with which the applicant
takes issue is the second respondent’s conclusion that the
sanction of dismissal
was appropriate. There is a plethora of
authority for the fact that the court will not lightly interfere with
the decision made
by an arbitrator on sanction. The second
respondent’s reasoning as to why he was not persuaded to
interfere with the third
respondent’s decision to dismiss the
applicant cannot be criticised. The second respondent has taken into
account the seriousness
of misconduct, the applicant’s
awareness of the seriousness of his actions and the applicant’s
responsibilities and
seniority.
[25]
For all of the above reasons, I am not
persuaded that the award of the second respondent is reviewable.
There is no reason in law
or fairness why costs should not follow the
result in this matter.
[26]
It is so that at the commencement of the
matter, the applicant applied for condonation for the late filing of
his application. This
application was not opposed and the matter
proceeded on the merits.
[27]
In the circumstances, I make the following
order:
The applicant’s
application is dismissed with costs.
D H Gush
Judge of the Labour Court
of South Africa Johannesburg
APPEARANCES:
FOR THE
APPLICANT:
D
S Rorick instructed by Brett Purdon Attorneys
FOR
THE RESPONDENT:
M Titus instructed by Macgregor
Erasmus Attorneys
[1]
Award pages 3-4.
[2]
Award paragraph 10.3
[3]
Award page 4
[4]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) (
Gold
Fields)
.
[5]
Gold
Fields
at
para 20.
[6]
[2015] 1 BLLR 50 (LAC).
[7]
At paras 31 and 32