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[2017] ZALCJHB 120
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Segona v Education Labour Relations Council and Others (JR2029/15) [2017] ZALCJHB 120 (7 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
CASE
NO: JR 2029/15
In
the matter between:
MAPITSI
GLADYS SEGONA
Applicant
and
THE
EDUCATION LABOUR RELATIONS
COUNCIL
First
Respondent
E
MAREE
Second
Respondent
MPUMALANGA
DEPARTMENT OF
EDUCATION
Third
Respondent
Heard:
13 January
2017
Delivered:
07 February 2017
Summary:
Bargaining
Council Arbitration proceedings – review of proceedings,
decisions and awards of Arbitrators – unfair labour
practice
proceedings – Arbitrator ruling Applicant bore onus and
refusing to compel employer to provide further particulars
–
ruling on onus correct and Applicant not requiring further
particulars to prepare for Arbitration – no gross irregularity
shown.
Bargaining
Council Arbitration proceedings – review of proceedings,
decisions and awards of Arbitrators – test for review
–
assessment of evidence and legal principles by Arbitrator –
assessment and determination reasonable – Award
upheld.
Bargaining
Council Arbitration proceedings – review of proceedings,
decisions and awards of Arbitrators – Employer’s
witness
asserted Applicant responsible as Accounting Officer of school where
Applicant was not Accounting Officer – Commissioner
not finding
Applicant responsible because of position as Accounting Officer but
rather because of involvement – no error
of law found –
Award upheld.
JUDGMENT
BECKENSTRATER
AJ:
Introduction
[1]
This matter came before me as an unopposed review application in
which the Applicant sought to review and set aside an Arbitration
Award of the Second Respondent (the Commissioner) of the First
Respondent, the Education Labour Relations Council (the Council).
The Award relates to a dispute the Applicant had referred to the
Council against her employer, the Third Respondent, about her
demotion from the position of Principal to the position of Deputy
Principal, which demotion had taken place pursuant to a disciplinary
hearing. In the Award the Commissioner found that— “
The
Applicant failed to discharge the onus in proving that the conduct of
the Respondent in demoting her subsequent to a finding
of guilt at a
Disciplinary Hearing amounted to an unfair labour practice
”
and dismissed the dispute.
[2]
The Applicant seeks to review the Award on several grounds which are
considered below.
Background
[3]
The Applicant was employed by the Third Respondent as the Principal
of Langalibalele Primary School in the Mpumalanga Province.
[4]
Around 2008 the Third Respondent conducted investigations into
complaints made against the Applicant apparently by the School
Governing Body (the SGB) and members of the local community.
One of the investigators, Mr Kgomphiri (Kgomphiri) interviewed,
amongst others, the Applicant during the course of the investigation.
[5]
Pursuant to the resulting report the Applicant was charged by the
Third Respondent during December 2008 with seventeen charges
of
misconduct. In terms of Charge 1 it was alleged that the
Applicant was guilty of misconduct in terms of
section 18(1)(f)
of
the
Employment of Educators Act 76 of 1998
in that she unjustifiably
prejudiced the administration, discipline or efficiency of the
Department of Education, the State or
a school, by taking computers
donated to the school and placing them at her home for a period of
more than two years. Charge
2 was never proceeded with.
Charges 3 to 5 related to allegations of misconduct in terms of
section 18(1)(ee)
of the
Employment of Educators Act alleging
that
the Applicant committed acts of dishonesty by under-banking various
amounts of the school’s income during the 2005 year
(Charge 3),
the 2006 year (Charge 4) and the 2007 (Charge 5). Charges 6 to
17 related to allegations of dishonesty pertaining
to claiming
reimbursements without supporting documentation.
[6]
At the subsequent disciplinary hearing the Applicant was represented
by Mr Ntuli who also represented the Applicant later
at the
Arbitration and in this Court. Various witnesses, including
Kgomphiri gave evidence at the disciplinary hearing.
At the
hearing the Applicant’s representative did not ask question of
the witnesses and the Applicant did not testify.
However,
argument was presented on her behalf.
[7]
On 4 May 2009 the Applicant was found guilty of Charges 1, 3, 4, 5, 6
and 8 to 17.
[8]
As a result of this the Applicant was not dismissed, but rather
demoted to the level of Deputy Principal and removed from
Langalibalele
Primary School to be placed at another school where she
could be “
supervised
thoroughly
”.
[9]
The Applicant noted an internal appeal against this decision.
That internal appeal was, however, dismissed on 13 April
2010.
[10]
On 5 May 2010 the Applicant referred a dispute to the Council.
In accordance with the Council’s standard referral
form she
categorised her dispute as relating to “
misconduct
”
(rather than a dispute about an unfair labour practice).
[11]
For reasons that are not explained in the papers before Court, the
Arbitration eventually came before the Commissioner for
hearing for
the first time in February 2014. The Commissioner herself
indicated some dismay at this delay, but no explanation
is apparent
for it.
[12]
Before the Arbitration came before the Commissioner, the Applicant
had requested further particulars from the Third Respondent.
There is an unresolved dispute on the record about whether the Third
Respondent’s representative had ever formally answered
this
request. The Third Respondent’s representative, however,
maintained that the request for particulars related to
issues of “
the
merits
”
of the disciplinary charges and disavowed any obligation to answer
them in substance. At one of the early sittings
the Applicant
also raised a point
in
limine
which, it appears, the Commissioner dismissed. The record does
not record the nature of this point or the Commissioner’s
ruling on it.
[13]
At the outset of the Arbitration Mr Ntuli argued that the Third
Respondent bore the onus insofar as it was the Third Respondent
that
had alleged misconduct. The Commissioner ruled that because the
dispute before her related to the Applicant’s
demotion pursuant
to a Disciplinary Enquiry, the Applicant bore the onus and had the
duty to begin.
[14]
Mr Ntuli further sought answers to his further particulars. The
Commissioner ruled that the hearing would proceed without
the further
particulars being formally answered.
[15]
In relation to Charge 1 the Applicant testified that at some
unidentified date and place there had been a meeting of the parents
who had instructed her to keep the computers safe (away from the
school which had been the subject matter of two recent burglaries).
The parents said no one should be told where the computers would be
kept and only the Treasurer of the SGB knew about it.
Because
of this she had kept the computers at her home for a period of two
years.
[16]
Martha Madibata (Madibata) was called by the Applicant in relation to
this charge. She testified that at some unspecified
date and
place there was a meeting to discuss burglaries at the school where
it was resolved that the computers should be kept
somewhere safe
until it was safe to bring them back to the school. It was
agreed that the location of those computers should
not be disclosed
as otherwise the children would ascertain the location and steal
them. The Third Respondent led no evidence
in relation to this
charge.
[17]
In relation to Charges 3, 4 and 5 the Applicant testified that she
was not involved in the receipting or banking of monies
and had not
been dishonest. Kgomphiri testified at the Arbitration and
essentially presented his report. He relied
upon receipts,
estimates of income from the school and banking records to
demonstrate that there had been an under-banking for
2005, 2006 and
2007. He testified that when he had interviewed the Applicant
during the investigation she had admitted that
she had been involved
in receipting the money. While the original receipts were not
available at the time of the Arbitration
he said that he had
considered the original receipts at the time of the investigation.
He pointed out that many copies of
the receipts reflected the
Applicant’s signature. He did not know who had banked the
school’s money. In
cross-examination he confirmed that it
was not his allegation that the Applicant was dishonest as he was not
the person who had
drafted the charges. He was of the view that
the Applicant was responsible for the under-banking as the Accounting
Officer
of the school.
[18]
In her subsequent Award, the Commissioner found that the Applicant
had not discharged the onus on her in relation to Charges
1, 3, 4 and
5 and accordingly found her guilty of those charges. She found
the Applicant not guilty in relation to the remaining
charges.
Because of this latter finding I make no further mention of those
charges. The Commissioner’s finding
in this regard was,
naturally, not challenged in this application. It is, however,
unfortunate that the full record of evidence
relating to those
numerous other charges burdened the record before the Court.
[19]
The Commissioner was critical of the Applicant’s evidence,
recording at paragraph 80 of the Award that: “
The
Applicant’s version can be summarised by stating that she ‘
saw
no evil, heard no evil and spoke no evil’”. She was
not impressed with the lack of detail and corroboration
for the
Applicant’s claims to innocence.
[20]
In relation to Charge 1 the Commissioner found the Applicant’s
version “
rather suspect
” and reasoned that in
several regards her evidence was not corroborated by Madibata whom
she also found to be an unconvincing
witness. She then found:
“
The
[Third] Respondent did not call a witness to testify to this charge.
The Applicant’s verison, however, failed to
convince me that
she had legitimate reason/s to have the computers at her home.
She admitted she had the computers at home
for 2 years and as
mentioned her reason for doing so was not proven.
The
Applicant is thus guilty of Charge 1 in that she unjustifiably
prejudiced the administration, discipline and efficiency of the
Department by taking donated computers to her home for at least 2
years. By doing so, she deprived learners/educators and
the
school in general from benefitting from the computers which in turn
prejudiced the smooth running of the Respondent”.
[21] In relation to Charges 3, 4 and 5
the Commissioner recorded that—
“
the
crux of the Applicant’s version of these charges amounts to a
claim that she did not under-bank and was therefore not
dishonest.
Her version rests on the claim that she did not receive monies and
thus could not have taken any monies for herself”.
The
Commissioner felt that there was no reason to reject Kgomphiri’s
evidence. She also noted Kgomphiri’s evidence
that the
Applicant had informed him during the investigation that she had
received monies and that her signature appeared on copies
of many of
the receipts.
[22] Paragraph 101 of the Award then
reads as follows:
“
Is
it dishonest to under-bank school monies as stated in the charges?
It is my view that if a person handles monies as the
Respondent did,
she accepts responsibility for this. This would include the
responsibility to correctly do the banking thereof
even if this part
is handled by another person. If this is not done and money
cannot be accounted for, it leads to the conclusion
that such a
person was dishonest”.
[23]
It is this Award that is brought on review to this Court. The
Applicant has set out several grounds of review which are
separately
considered below.
Onus
[24]
The Applicant contended that the Commissioner committed a gross
irregularity in procedure by ruling that the Applicant bore
the
onus. This contention was based upon the manner in which the
Applicant had completed the Council’s standard referral
form.
She had indicated that the nature of her dispute was “
misconduct
”
rather than an unfair labour practise. Bargaining Councils and
the CCMA do not, however, entertain disputes relating
to
“
misconduct
”.
They entertain disputes about dismissals or sanctions short of
dismissal arising from misconduct. Mr Ntuli
conceded in
Court and, indeed, before the Commissioner that the dispute was about
an unfair labour practice relating to demotion.
[25]
The Commissioner was accordingly correct to find that the Applicant
bore the onus (see:
Department
of Justice v CCMA & Others
[1]
and
NEHAWU
obo Manyana & 1 Other v Masege
N.O.
&
Others
[2]
at paragraph 36 and the authorities collected there).
There is consequently no merit in this ground of review.
No
prejudice demonstrated in relation to Charge 1
[26]
The Applicant contended that the Commissioner had committed a gross
irregularity by finding that there was proof of prejudice
in relation
to Charge 1. Mr Ntuli’s argument was that there was
only one item of direct evidence led on this point
and that was the
Applicant’s statement that “
there
was no need of those computers there
”.
It was argued that the Commissioner had failed to consider this
evidence.
[27]
Firstly, I think the prejudice in question is self-evident. If
the learners at the school could not benefit from the
computers then
the donation of the computers would not have been accepted. In
the circumstances, as the Commissioner found,
keeping those computers
away from the school for two years “
deprived
learners/educators and the school in general from benefitting from
the computers which in turn prejudiced the smooth running
of the
[Third]
Respondent
”.
[28]
In my view the Commissioner cannot be faulted for accepting the
self-evident prejudice over the Applicant’s vague,
uncorroborated
and improbable statement that there was no need for
the computers.
[29]
Secondly, the matter before me is a review application. In
accordance with the famous
Sidumo
Test
the question is thus whether the decision reached by the Commissioner
is one no reasonable decision-maker could reach. As
elaborated
on in
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[3]
:
“
The
reasons [of the Commissioner] are still considered in order to see
how the Arbitrator reached the result. That assists
the Court
to determine whether that result can reasonably be reached by that
route. If not, however, the Court must still
consider whether
apart from those reasons, the result is one that a reasonable
decision-maker could reach in light of the issues
and the evidence.
.
. .
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”.
[30]
The mere fact that the Commissioner did not expressly mention the
Applicant’s statement that the computers were not needed
does
not mean she did not have cognisance of this statement.
Commissioners are obliged in terms of section 138(7)(a)
of the
Labour Relations Act
[4]
to give brief reasons. In the Award, the Commissioner herself
records:
“
It
is not my intention for purposes of this award to verbatim and/or
fully reflect all arguments/submissions/evidence submitted
on behalf
of the parties. All arguments/submissions/evidence were
considered and were recorded”.
I
do not think the Award reflects that this is one of those matters
where the Commissioner failed to take into account material
evidence
before her. The Applicant’s above statement, to my mind,
carries little weight in determining whether the
state or the school
suffered prejudice.
[31]
In
Head
of the Department of Education v Mofokeng & Others
[5]
the Labour Appeal Court held the following:
“
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the
final analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the
irregularity or error is material must be assessed
and determined
with reference to the distorting effect it may or may not have had
upon the arbitrator’s conception of the
inquiry, the
delimitation of the issues to be determined and the ultimate
outcome”.
[32]
I am not convinced the Commissioner overlooked this evidence.
However, even if she did do so, this evidence had no distorting
effect on the Arbitrator’s understanding of the issues before
her or the outcome and did not amount to a reviewable irregularity.
[33] This ground of
review accordingly fails.
The Commissioner’s failure to
order the Respondent to provide further particulars
[34]
The Applicant argued that the Commissioner’s refusal to order
the Third Respondent to respond to the Applicant’s
request for
further particulars amounted to a gross irregularity. The
transcript reveals that the Commissioner took into
account the nature
of the particulars requested and that most of the questions were
aimed at obtaining details of the misconduct
alleged by the Third
Respondent (rather than particularity pertaining to an unfair labour
practice). Insofar as the request
related to evidence the
Commissioner found that the Applicant could subpoena any witnesses or
documentation she required.
The Commissioner was furthermore
aware that the Applicant’s demotion had been preceded by a
disciplinary hearing where all
the evidence had already been led and
at which the Applicant had been represented by the same
representative. The Commissioner
was also aware that there had
been a pre-arbitration conference and an exchange of documentation.
[35]
Mr Ntuli noted that the Commissioner said that the requesting and
furnishing of further particulars is something that did not
“
involve
the Commissioner
”.
When the Commissioner was, however, pushed to make a ruling she ruled
that the request went “
to
the merits
”.
In context, the Commissioner meant that the request related to the
merits of the misconduct and not the merits of
the unfair labour
practice.
[36]
It is evident from the request for further particulars that it was,
in essence, designed to emphasise the Applicant’s
grounds of
defence. In those circumstances I don’t believe the
Applicant was entitled to a formal response. A
response was not
necessary to prepare for the Arbitration. Moreover, because of
the Applicant’s and Mr Ntuli’s
involvement in the
disciplinary enquiry no prejudice was suffered by the Applicant as a
result of the further particulars not being
answered. Indeed,
in this Court Mr Ntuli could not indicate in what way the Applicant
was prejudiced by this.
[37]
Again, this ruling cannot be said to be one that no reasonable
decision-maker could make and there is no basis on which to
review
it.
Error
of law
[38]
This constituted the Applicant’s main ground of review.
Mr Ntuli argued that the Award had been tainted by a material
error
of law. In evidence Kgomphiri had contended the Applicant was
responsible for the under-banking of funds as the Accounting
Officer
of the school. Relying upon
Schoonbee
& Others v MEC for Education, Mpumalanga and Another
[6]
Mr Ntuli then argued that Kgomphiri and the Third Respondent had been
misguided in charging the Applicant because that Judgment
had held
that the Principal of a school is not its Accounting Officer.
The argument was then advanced that it was legally
impermissible for
the Third Respondent to charge the Applicant in relation to Charges
3, 4 and 5 because responsibility and accountability
for school
finances lay with the SGB, not the Principal.
[39]
The Applicant’s contention, however, does not withstand
scrutiny. While it is correct that Kgomphiri contended
that the
Applicant was liable for the under-banking as the Accounting Officer
of the school, the Commissioner did not rely upon
this contention in
the Award. Rather she found that:
“
If
a person handles money as the Applicant did, she accepts
responsibility for this. This would include the responsibility
to correctly do the banking thereof even if this part is handled by
another person”.
The
Commissioner thus found the Applicant liable in relation to the
under-banking because of her involvement in that process and
not
because of any alleged obligations as an Accounting Officer.
[40]
Mr Ntuli also contended in oral argument that it was not competent
for the Third Respondent to charge the Applicant in relation
to
financial issues, because it is the SGB and not the Principal that is
responsible therefor. In this regard he relied upon
the
Schoonbee
Judgment.
Section 16A
of the
Employment of Educators Act
[7
]
now spells out the responsibilities of public school principals.
However, the conduct in this matter and the
Schoonbee
Judgment pre-date that Section. Something, therefore, needs to be
said about this.
[41]
Firstly, while the
Schoonbee
judgment did find that the
Principal was not the Accounting Officer of the school, it did not
absolve Principals of all responsibility
in respect of financial
issues. Rather at 884B-I the following was stated:
“
In
my view, the proper interpretation is to regard the principal as
having a duty to facilitate, support and assist the SGB in execution
of its statutory functions relating to assets, liabilities, property,
financial management of a public school and also as a person
upon
whom the specific parts of the SGB’s duties can properly be
delegated. On any of these interpretations the principal
would
be accountable to the SGB. It is the SGB that would hold the
principal accountable for financial and property matters
which are
not specifically entrusted upon the principal by the statute ...
In
my view, there should be no confusion in identifying the two roles
played by the [Principal and Deputy Principal], on the one
hand, as
ex officio members of the SGB and, on the other, as employees of the
[Department]. As and when the [Department]
acts against the
[Principal and Deputy Principal] they must have regard to those dual
capacities. It is a misapprehension
of that duality which led
to the [Head of Department’s] acting as he did. The [Head
of Department] sought to hold liable
the [Principal and Deputy
Principal] for the statutory obligations of the SGB. This is
not legally permissible ... Should
the [Head of Department] be
disenchanted by the expenditure patterns of the principal, I think it
is the SGB that must be invited
to deal with and account for each
such proprietary or financial matter as may earn the displeasure of
the [Head of Department].
Acting properly, the [Department] as
employer is entitled to hold liable and accountable the principal and
his deputy in terms
of the
Employment of Educators Act, 1998
and also
under the Schools Act for their duty to manage the school
professionally”.
[42]
The Commissioner found that the Applicant had personally been
involved in receiving money and issuing receipts for it and,
at the
very least, was aware of it being banked. She then must have
been doing this on the instruction of or on behalf of
the SGB to whom
she owed a duty of facilitation, support and assistance. It is
within the rights of the Third Respondent
as the employer to ensure
that such duties were properly and honestly discharged.
[43]
I do not read the
Schoonbee
judgment as stating that where misconduct has been committed in
respect of a duty delegated by the SGB to a Principal it is only
the
SGB that can take action in that regard. Provided the
disciplinary action is contemplated in the
Employment of Educators
Act, the
Judgment accepts that the Department can take disciplinary
steps. This would depend on the misconduct in question and
whether
there is a nexus between that misconduct and the employment
relationship. Thus misconduct “
outside
of the workplace
”
may be grounds for disciplinary action
[8]
.
So too misconduct towards a co-employee or customer may be grounds
for disciplinary action even where the employer itself
is not the
victim of the misconduct
[9]
.
The present matter is one of these such circumstances.
[44]
I thus do not see that the Commissioner has made any error of law and
this ground of review fails.
Error of fact in relation to Charge
1
[45]
The Applicant argued that the Commissioner did not properly take into
account her evidence in relation to Charge 1 that “
at
a parents’ meeting it was decided that if new computers were
bought in it would not be made known and that the computers
would be
placed at a safe place
”.
The Applicant argues that the Commissioner did not properly record
her evidence or that of Madibata. From this
the Applicant
argues that the Commissioner erroneously found that she did not have
a legitimate reason to keep the computers at
her home whereas the
Applicant contended that she did so on the instructions of the
parents.
[46]
As I have indicated above, however, the transcript reveals that the
Applicant’s evidence in this respect was vague.
It is the
Applicant’s argument that not even the parents were told where
the computers would be kept and only the Treasurer
and the Applicant
knew they were at her home. Ably led by Mr Ntuli during the
Arbitration the Applicant did, indeed, give
this testimony.
However, before doing so she had also testified “
that is
what I said to them
[the parents]
. We purchase the
computers I would take them to my place and lock them there and in
the garage at my house
”.
[47]
The transcript further reveals that Madibada’s evidence was
vague to the extent that she could not recall even the approximate
dates of the meetings. She testified that parents were called
to a meeting where, because of burglaries at the school, a
resolution
was taken that certain computers would be kept safe by the Principal
and that the parents should not be told where the
computers were
stored. There was, however, no detail given of this event.
Madibada did not confirm that permission
was given to the Applicant
to store the computers at her house. Interestingly, Madibada
testified that sometime later a rumour
circulated that the computers
had been used to start a school in Bronkhorstspruit and she had taken
part in the toyi-toying protests
against the Applicant.
[48]
It is not surprising that in the circumstances the Commissioner found
that Madibada was not a convincing witness and that the
Applicant’s
version was “
rather
suspect
”.
It is not generally the function of a reviewing Court to interfere
with credibility findings of a Commissioner unless
the record
indicates that such findings are not well-founded. In this
matter the record supports the Commissioner’s
findings.
The Commissioner found that the Applicant had not discharged the
onus. Against the background highlighted
above this is not a
finding no reasonable Commissioner could make and this ground of
review falls to be rejected.
Failure
to have regard to relevant evidence in relation to Charges 3, 4 and 5
[49]
Under this heading the Applicant contended that the Commissioner had
failed to take into account that there was no direct evidence
of
dishonesty in relation to Charges 3, 4 and 5. During
cross-examination Kgomphiri had been asked to explain what was meant
by the allegation of dishonesty. He had responded that he did
not state that the Applicant was dishonest as he was not the
author
of the Charge Sheet. In the circumstances the Applicant
contended that the Commissioner could not reasonably have
made a
finding of dishonesty against the Applicant.
[50]
Whether or not the Applicant can have been said to be dishonest in
relation to the under-banking of school fees depends, in
my view, not
upon the say-so of a forensic auditor but upon a consideration of the
totality of the evidence. The Commissioner’s
reasoning
for finding the Applicant dishonest is set out in paragraph 101 of
the Award quoted above. The question is whether
such a decision
is one that no reasonable decision-maker could make given Kgomphiri’s
evidence.
[51]
The under-banking the Commissioner found had been proved had to be
considered against the following background:
[51.1]
The under-banking had gone on for three years.
[51.2]
During the forensic investigation the Applicant had apparently told
Kgomphiri that she had received the money on behalf
of the school and
issued receipts for it. This evidence of Kgomphiri was never
disputed.
[51.3]
When faced with these allegations and those of under-banking at the
Disciplinary Enquiry, the Applicant had not proffered
any conflicting
version.
[51.4]
At the Arbitration the Applicant, in her testimony, simply denied any
involvement in the receipting of money.
[51.5]
While the original receipts were not present at the time of the
Arbitration it was evident from the available copies
that many of
them bore the Applicant’s signature.
[52]
In these circumstances, the Applicant’s evidence at the
Arbitration that she had no involvement in the receipting of
monies
must be rejected.
[53]
The case advanced by the Third Respondent called for a proper
explanation for the under-banking from the Applicant. This
need
for an explanation arises, as set out above, not because the
Applicant was the school’s Accounting Officer, but because
she
was a school official factually involved in the handling of its
finances. Even in circumstances where the employer bears
the
onus (which was not the situation before the Commissioner)
Brassey
[10]
notes the following:
“
There
are circumstances in which an inference of misconduct is permissible
unless explained away by the evidence. In a case
of this
nature, the employee will bear an evidential burden to tender the
requisite explanation and, if he declines to do so or
it is
inadequate, the inference of guilt will stand. At common law
this has long been recognised. For example, a till
operator can
be expected to account for money in his possession and will be guilty
of misconduct if he can give no explanation
for shortages. The
same principle is reflected in the following passage from
Mzeku
& Others v Volkswagen SA (Pty) Limited & Others
:
‘It is common cause that the Appellants refused or failed to
perform their duties for a period of over two weeks.
Once this
is common cause, the Appellants must provide an explanation for their
conduct ... Once there is no acceptable explanation
for the
Appellants’ conduct then it has to be accepted that the
Appellants were guilty of unacceptable conduct ...’.”
(Footnotes omitted)
[54]
Given the under-banking of school funds for three years, the
Applicant’s involvement in the receipt of such monies and
what
must be seen as her dishonest attempts to disavow any involvement the
Commissioner’s inference of dishonesty is reasonable.
Consequently this ground of review also fails.
Order
[55]
Given what is set out above, I make the following order:
1.
The application is dismissed.
______________________
Beckenstrater
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr Ntuli
Instructed
by:
Errol Ntuli Attorneys
[1]
(2004) 25 ILJ
248 (LAC) at para 73.
[2]
[2014] ZALC JHB
124 (8 April 2014).
[3]
[2013] ZASCA 97
;
2013 (6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795
(SCA) at paras 12 and 25.
[4]
66 of 1995.
[5]
[2015] 1 BLLR
50
(LAC)
at
para 33.
[6]
2002 (4) SA 877
(T). (Schoonbee)
[7]
Act 76 of 1998 as
amended by Act 31 of 2007 and Act 15 of 2011.
[8]
Consider
City
of Cape Town v SALGBC (2) (2011) 32 ILJ 1333 (LC); Dolo v CCMA &
Others (2011) 32 ILJ 905 (LC).
[9]
See
First
National Battery v CCMA & Others (2010) 31 ILJ 1203 (LC)
.
[10]
Brassey “Unfair Dismissals and
Unfair Labour Practice” in Brassey et el,
Commentary
on the Labour Relations Act, (
revision
service 2: 2006), vol 3 at A8-142.