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[2016] ZALCCT 26
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Davids v CCMA and Others (C295/2015) [2016] ZALCCT 26 (16 March 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA
(
WESTERN
CAPE LABOUR COURT, CAPE TOWN
)
CASE
NUMBER
:
C295/2015
DATE
:
16 MARCH 2016
In
the matter between:
HILTON
RAYMOND DAVIDS
Applicant
and
CCMA
First respondent
MADELEINE
LOYSON
(Commissioner)
Second respondent
TONGAAT
HULETT SUGAR LIMITED
Third
respondent
J
U D G M E N T
STEENKAMP,
J
:
This
is an application to have an arbitration award by the second
respondent, Commissioner Madeleine Loyson, reviewed and set aside.
It arises from the dismissal of the applicant, Mr Davids, by the
third respondent, Tongaat Hulett Sugar Limited.
Mr
Davids was employed as a senior merchandiser. He admits that he
failed to call on stores which were part of his routine
daily call
schedule. However, he denied that he had deliberately supplied
false information to his manager. That led to the
arbitration after
he had been dismissed on those two allegations of misconduct.
It
must be said at the outset that the arbitration award is a model
one. The arbitration took place over two days. The
arbitrator very carefully summarised the evidence of the witnesses
before her. They were the employer’s HR manager,
Ms
Mshengu; the sales manager to whom Mr Davids reported, that is Mr AG
Lakay; and the divisional manager, Mr D Elliott.
The arbitrator
then considered the evidence of the employee, Mr Davids;and that of
Messrs Andre Carolissen, Ricardo Adams and Quentin
Thomas. She then
considered the submissions in writing that were submitted by both
parties, analysed the argument and the evidence.
She then
carefully set out the relevant legal principles and applied those
legal principles to the evidence that she had heard.
She found,
having taken all that into account and having weighed up the
credibility of the witnesses and the probabilities, that
the
dismissal of the employee was substantively fair.
Mr
Davids, who represented himself, set out a number of grounds of
review in his founding affidavit. The grounds are somewhat
vague and they amount on the whole to grounds of appeal rather than
review. He further distilled the grounds in his written
heads
of argument and in his oral argument before the Court today.
The first thing that he took issue with is that he was
unrepresented
at the arbitration, as he was today, while the employer was
represented by Mr
Lawrence
,
an attorney, who also represented it here today.
Although
I have sympathy with his complaint that the playing fields may not
have been level, it is clear from a reading of the transcript
that
the arbitrator considered the parity of arms and that she properly
advised the employee, as the Court had to do today, that
the person
that was advising him and who is also present in Court today was not
allowed to represent him as he was not a legal
representative or a
trade union representative.
However,
the employee at the arbitration indicated at the outset of the
proceedings that he had no objection to legal representation
and that
he would represent himself, as he did eloquently today. The
arbitrator went out of her way to explain the processes
to him and to
make sure that he is in no way prejudiced. I am quite satisfied
on a reading of the transcript and of the evidence
that the employee
had a fair hearing.
Concerning
the main attack on the award, it was as I have said in the nature of
an appeal rather than a review. Mr Davids, in his
oral argument
today, attempted on the whole to re-argue his case. Given that
he is unrepresented, the Court showed him significant
latitude but
the fact remains that this is a review, not an appeal. Mr
Davids was hard-pressed to explain to the Court in
what manner the
award of the arbitrator was so unreasonable that no other arbitrator
could have come to the same conclusion, i.e.
in what way it did not
pass muster on the test as set out in
SIdumo
v Rustenburg Platinum Mines
2007 (28)
ILJ
2405
(CC).
The
five instances where he complained that the arbitrator did not
properly apply her mind to the evidence before her, are not borne
out
by the summary of the evidence as compared to the transcript.
The
arbitrator firstly considered the evidence of Ms Mshengu, the HR
manager. She pointed out that Mshengu was informed by Lakay
about an
incident that had occurred involving a sales representative, Mr
Rodney Cloete, who was not completing his daily call schedule
but had
signed off the daily call sheet. Cloete was dismissed. It
is that incident that led to the investigation into
Mr Davids.
The arbitrator also took into account the evidence of Mshengu that
the employees were called in by Lakay and Elliott,
including the
applicant, and cautioned about the seriousness of misrepresentation
on the daily call sheets.
Concerning
this so-called call sheets, Mr Davids’s main bone of contention
in argument today was that the employer could not
show him such a
call sheet. In response Mr
Lawrence
pointed out that this was traversed in some detail at the arbitration
and he pointed to the example that was also explained to
the
arbitrator where Mr Davids’s superior, Mr Marshall Kleintjies,
as well as the employee had signed off on what was referred
to in
shorthand as a “time sheet” showing that they supposedly
visited ten stores whereas in reality they had only
visited four.
The
arbitrator also pointed out that another sales representative, Mr
Enrico Armino, who was also found to have misrepresented time
schedules, resigned just before he could be disciplined and that both
the employee (Mr Davids) and Mr Kleintjies were dismissed.
The
other person involved, Cloete, was not dismissed but received a final
written warning. The reason for that was that he
had signed the
time sheets off in the morning before they had been completed by
Cloete and did not later check them to see that
Cloete had inserted
the correct information before handing in the time sheets to
management.
Importantly,
Lakay testified that the employees are given a daily call schedule
and that counselling meetings and further meetings
had taken place to
remind those involved, i.e. the sales representatives, of their
duties. He checked the store register
against the schedule of
the employee and Kleintjies on 3 September 2014 after a visit to the
Lansdowne Shoprite from which it became
clear that the time sheets
did not gel with the store’s visit schedule. That is what
led to this further investigation
showing the discrepancies on the
other dates such as 28 August 2014. An important aspect of his
evidence is that, when he
asked the employee to provide an
explanation, the employee eventually admitted that he had either only
visited certain stores,
had not visited some of the stores or had not
completed some of the schedules.
Mr
Elliott, the divisional manager, gave more detail about the
structures in place. Importantly, he had impressed upon both
sales representatives and merchandisers, it is their responsibility
to ensure open and honest reporting on their activities as
well as
the consequences should such incidents of misrepresentation of
activities and fraudulent submissions of time sheets be
repeated.
Mr
Davids, having denied the allegations against him, conceded under
cross-examination that there were several meetings held, including
the one on 28 October 2013, where it was made clear what their duties
were and that they were required to ensure that what they
signed off
was accurate.
The
arbitrator, considering all of the evidence before her, found that
the employer’s witnesses were “extremely compelling”.
They testified in great detail and especially Lakay spoke from the
heart in a completely uninhibited fashion. Their versions
were
credible and factual with no signs of any tailoring and most
importantly their versions were corroborated in every respect
by each
other.
The
arbitrator found that the employee, on the other hand, was not a good
witness. His defence rested solely on a blatant
denial of any
guilt at all. He attempted to distance himself from any
responsibility for anything and he was blatantly unremorseful
and
sought to place the blame for everything on Kleintjies. Most
surprising of al,l the arbitrator found, the employee sought
to argue
(very unconvincingly and almost in unintelligible fashion) that he no
longer had any key performance areas in respect
of his job.
This argument failed before the arbitrator.
The
arbitrator concluded that there was no doubt that the employee
clearly knew the consequences of his actions but continued, possibly
thinking that given his long service he had somehow become immune to
any form of action against him or that he too would first
receive a
written warning and not be dismissed outright. The arbitrator
also noted that the employee was trusted by the employer
and because
that trust was breached, his seniority and length of service only
served in aggravation. She also found that the employee
was dishonest
and that therefore the dismissal was fair. Insofar as the
employee’s complaint of inconsistent application
of the
sanction of dismissal was concerned, she noted that the evidence was
clear that the cases of Thomas and Adams could not
be compared to
that of the employee. His offences were committed after the
incidents of Cloete, Thomas and Adams and after
Lakay and Elliott had
repeatedly warned employees of the consequences of similar conduct in
the future. The line had been
drawn in the sand. The actual
conduct of Thomas and Adams was also different to that of the
employee. The arbitrator considered
the law on inconsistency.
She referred, for example, to the judgment of the Labour Appeal Court
in
SACCAWU v Irvin and Johnson
(1999) 20
ILJ
2302 (LAC) where Conradie, JA stated:
“
In
my view too great an emphasis is quite frequently sought to be placed
on the principle of disciplinary consistency, also called
the parity
principle. There is really no separate principle involved.
Consistency is simply an element of disciplinary
fairness.
Every employee must be measured by the same standards.
Discipline must not be capricious. It is really
the perception
of bias inherent in selective discipline which makes it unfair.
Where however one is faced with a large number
of offending
employees, the best that one can hope for is reasonable consistency.
Some inconsistency is the price to be paid
for flexibility which
requires the exercise of a discretion in each individual case.
If a chairperson conscientiously and
honestly but incorrectly
exercises his or her discretion in a particular case, in a particular
way, it would not mean that there
was unfairness towards the other
employees. It would mean no more than that his or her
assessment of the gravity of the disciplinary
offence was wrong.
It cannot be fair that other employees profit from that kind of wrong
decision.”
The
arbitrator also referred to the sentiments expressed by Professor
John Grogan in
Employment Law
,
Volume 15, Number 3, August 1999 in an article titled “Just
Deserts: The Limits of the Parity Principle” where he
says:
“
One
of the lessons to be learned from the
Irvin
and Johnson
decision is that when
deciding on whether the parity principle applies, a Court or
arbitrator should not lose sight of the gravity
of the misconduct of
the employee who seeks to rely on that principle. Another is
that if a disciplinary officer errs on
the side of leniency in
respect of one employee, the employer may not be burdened with the
error to the extent of having to reinstate
or compensate those
employees who, viewed independently, ought to be dismissed.”
The
arbitrator concluded that dishonesty of this type committed by the
employee is totally and entirely unacceptable and justifies
the most
severe of sanctions because it breaches the relationship of trust as
testified to by Lakay and Elliott in particular.
It is against
that background that she found the dismissal to be fair. I have
already referred to the review test as set
out in
Sidumo
that was expanded upon by the SCA in
Heroldt
v Nedbank
where the SCA says:
“
In
summary, the position regarding the review of CCMA awards is this: a
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings
to
amount to a gross irregularity as contemplated by section
145(2)(a)(ii), the arbitrator must have misconceived the nature of
the enquiry or arrived at an unreasonable result. The result
will only be unreasonable if it is one that a reasonable arbitrator
could not reach on all the material that was before the arbitrator.
Material errors of fact as well as the weight and relevance
to be
attached to particular facts are not in and of themselves sufficient
for an award to be set aside but are only of any consequence
if their
effect is to render the outcome unreasonable.”
And
it went on to say that:
“
That
does not mean that a latent irregularity as Schreiner, J originally
used that term in the
Goldfields
Investments
case, is not a gross
irregularity within the meaning of section 145(2)(a)(ii). It
is, but only in the limited sense mentioned
earlier, where the
decision maker has undertaken the wrong enquiry or undertaken the
enquiry in the wrong manner.”
In
this case the arbitrator undertook the enquiry in exactly the correct
manner. She, in the words of
Kloof
Gold Mining
, asked the right question
and, having asked that question, decided the dispute before her in
the light of the evidence before her.
She did so in the proper
manner by assessing the credibility and reliability of the witnesses
and the probabilities. She
came to a conclusion on the
probabilities that another reasonable arbitrator could reasonably
have arrived at. The award
is not open to review.
With
regard to costs, I do take into account that the employee is not
represented by an attorney; however, as he pointed out at
the
arbitration and in this Court, he has had the benefit of advice,
apparently by an acquaintance. It is clear from his
heads of
argument, apparently drawn with the help of that advisor, that he was
made aware of the test on review. In fact,
he quotes
Sidumo
verbatim. Against that background he, assisted by his advisor,
should have known that this application had no prospects of
success.
He nevertheless proceeded with the case in circumstances where there
was a clear and reasonable award drawn in a
very detailed fashion
that reasonably went against him. It is the aim of the Labour
Relations Act that arbitrations should
be final and binding. The
matter should have rested there.
The
arbitrator did not make any order as to costs. Nevertheless the
employee persisted with this application, thus forcing
the employer
to incur unnecessary costs in opposing it. There is no longer
any employment relationship between the parties.
In those
circumstances, in law and fairness, costs should follow the result.
THE
APPLICATION FOR REVIEW IS DISMISSED WITH COSTS.
___________________________
STEENKAMP,
J