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[2016] ZALCCT 41
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National Union of Mineworkers obo Kama v Eskom Holdings (SOC) Ltd and Others (C877/2015) [2016] ZALCCT 41 (27 October 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C877/2015
Not
Reportable
In
the matter between:
THE
NATIONAL UNION OF MINEWORKERS
obo
SD
KAMA
Applicant
and
ESKOM
HOLDINGS (SOC)
LTD
1st Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
2
nd
Respondent
L.
MARTIN
N.O.
3
rd
Respondent
Heard:
May 5 2016
Delivered:
27 October 2016
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to review an arbitration award. The
third respondent (the Commissioner) found the dismissal of
the
applicant employee (Khama) to have been procedurally and
substantively fair.
[2]
Khama had worked for the first respondent (the company) since 1 May
2008 and at the time of her dismissal was a customer relations
officer. She was dismissed on 14 October 2014 having been found
guilty of “Failure to comply with Eskom’s Conditions
of
Service, agreements with trade unions, operating regulations,
security and/or safety measures, procedures, directives and
applicable
statutory requirements; and making any false statement or
representation that relates to, or ensues from his duties.”
[3]
It was the company’s case at arbitration that Kama deliberately
entered incorrect information in her car trip sheets so
that she
could derive financial benefits in that private trips were
treated as business kilometres. In addition, it was its
case that
Kama made a false statement in respect of sick leave because she
filed to capture the sick leave taken on Zenzele, the
electronic
leave administration system. She it was alleged, stood to benefit
from not having sick leave captured on the system.
Finally there was
one instance of annual leave Kama had not captured on the system.
[4]
It was not in dispute at arbitration that Kama had failed to capture
17 days sick leave on Zenele as well as one days’
annual leave.
The issue was whether these omissions were deliberate and
intentional. The company sought to prove that they were
and that Kama
acted with the intention to defraud the organisation.
[5]
Kama’s case was that the ‘errors’ on the trip
sheets were genuine mistakes caused by lack of training on the
system
and that she was struggling with it. She also testified that her
understanding of the procedures for sick leave were that
she would
capture sick leave taken manually and that an administrative officer
would then capture it electronically. In respect
of the one day
annual leave, she claimed it was simply an oversight on her part.
[6]
In his analysis of the evidence and argument the Commission concluded
that the evidence showed that there had been numerous
discrepancies
in the recording of leave and vehicle records pertaining to
kilometres travelled by Kama. In coming to his conclusion
that the
dismissal of Kama was substantively fair and the relationship of
trust had broken down, the Commissioner took into account
inter alia
that:
6.1
Kama’s reasons for incorrectly recording the kilometres
travelled, in
that she did not know how to record
them were not acceptable given her status as junior management;
6.2
Her supervisor Mr Bethanie gave unchallenged evidence that he had
conducted an investigation
of all in the department and it was found
that no one had transgressed in the manner that Kama had.
6.3
Kama had received training in filling in the records and she was
assisted in correctly filling
in the trip sheets;
6.4
She had benefitted from the errors;
6.5
The nature of her functions was that she worked on her own without
supervision. She was
therefore expected to execute such functions
such as the filing in of the forms correctly with the greatest degree
of trust.
[7]
The basis for the review is that the Commissioner’s findings on
the evidence before him were “irrational and not
supported by
the evidence and therefore unreasonable”. In essence however
the review focusses on findings of fact by the
Commissioner which the
applicant challenges. It is also submitted on her behalf than “any
reasonable commissioner would have
found that Kama was charged
because Bethanie has an axe to grind against Kama and this explained
the charges laid against her”.
This latter submission is quite
unsubstantiated.
[8]
The amount of money that Kama claimed on her trip sheets that she was
not entitled to was R3000.00. The days claimed in excess
for sick
leave were 17 in total. Kama subpoenaed an administrative clerk, a Ms
Douglas, to give evidence at the arbitration regarding
the motor
vehicle scheme. Her evidence supported the company’s version
that Kama had been taught how to fill in the trip
sheets. The
Commissioner also recorded the following:
“
60.
She telephoned Stannic to inform them that Kama had been dismissed
that day and that the fuel card should
be cancelled immediately.
61.
Douglas cannot give permission for the card to be used after the
holder had been dismissed.
62.
After Kama had been dismissed Douglas requested a report from
Standard Bank regarding whether
Kama had used the card after the
dismissal. She notified Kama’s line manager that the card had
been used and that it was
Fraud.
63.
Douglas had still not received a trip sheet for October 2014 from
Kama which was supposed
to have been handed in the day she was
dismissed.
64.
Douglas’s manager therefore informed her that the closing
odometer reading for September
and add to that the last odometer
reading Kama refueled the car as the closing kilometres. That total
together with the last amount
paid at the last refueling was deducted
from Kama’s salary. The Stannic report was used to validate the
trip sheet.”
[9]
Having considered the Award and the record before the Commissioner,
including the above evidence by Douglas, I find that the
Commissioner’s finding on substantive fairness is well within
the bounds of reasonableness. The review grounds amount to
what the
applicant believes the Commissioner ought to have found. Using labels
such as ‘unreasonable’ and ‘irrational’
in
describing the findings by the Commissioner on the evidence before
him, are of no assistance to the applicant. The submission
on behalf
of the applicant that the penalty of dismissal was too harsh in the
circumstances is not persuasive given the nature
of the charges and
the evidence given at the arbitration as regards the breach of trust
in the employment relationship.
[10]
As to procedural fairness, it was submitted on behalf of the
applicant at the arbitration that the company had not endeavoured
hard enough to hold the disciplinary hearing within the three month
period, which the disciplinary code provided should be aimed
for. In
addition, it is submitted before me that the chairperson of the
disciplinary hearing decided to call for further evidence
from the
employer. However, the record shows that the applicant and her union
were provided with the opportunity to cross-examine
the testimony
given by a company witness at the further hearing. In my view the
Commissioner’s finding that the dismissal
was procedurally fair
is reasonable. As he records in the award: “…..the
evidence is clear that she had been afforded
an opportunity to
prepare for her hearing; she had been represented by her trade union;
she had cross-examined witnesses and she
had been afforded an
opportunity to state her case notwithstanding her electing not to
place her version through testimony before
the disciplinary hearing.”
[11]
In all the circumstances, the applicant has failed to make a case for
this court to review the award. Numerous decisions of
the labour
courts support this finding. I will rely on the
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[1]
dictum in which the LAC stated that for a reviewing court:
“
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 B that the arbitrator employ give the parties a full
opportunity to have their say in respect of the dispute?
(ii) Did the
arbitrator identify the dispute he or she 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?
(v) Is the arbitrator's decision
one that another decision maker
could reasonably have arrived at based on the evidence?”
[11]
In this matter all of the above questions stand to be answered in the
affirmative. Both parties asked for costs and I see no
reason why
costs should not follow the result. I order as follows:
Order
1.
The review application is dismissed with costs.
____________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances:
Applicant:
Cheadle Thompson & Haysom Inc
First
Respondent: R. Nyman instructed by Moosa, Waglay & Petersen Inc
[1]
(2014) 35 ILJ 943
(LAC) at para 20