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[2017] ZALCJHB 229
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EOH Abantu (Pty) Ltd t/a Highveld PFS (Pty) Ltd v CCMA and Others (JR1209/12) [2017] ZALCJHB 229 (13 June 2017)
LABOUR
COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Of
interest to other judges
C
ase
no: JR 1209/12
In
the matter between:
EOH
ABANTU (PTY) LTD
t/a
HIGHVELD PFS (PTY) LTD
Applicant
and
CCMA
First
Respondent
BONGANI
KHUMALO N.O.
Second
Respondent
BRETT
DANNEY
Third
Respondent
Heard
:
20 April 2017
Delivered
:
13 June 2017
Summary:
Review – misconduct dismissal – incomplete record not
pleaded; reconstructed record in any event sufficient; arbitration
award reasonable; application dismissed.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The third
respondent, Brett Danney, was dismissed by the applicant, EOH. He
referred an unfair dismissal dispute to the CCMA (the
first
respondent). Conciliation failed. The dispute was referred to
arbitration. Commissioner Bongani Khumalo (the second respondent)
found it to be unfair and ordered EOH to pay him compensation
equivalent to ten months’ remuneration. EOH seeks to have the
arbitration award reviewed and set aside in terms of s 145 of the
LRA.
[1]
Background facts
[2]
EOH provides payroll administration services. It employed Danney for
only one year as team leader for Microsoft server administrators.
It
did so in order for EOH to provide payroll administration services to
him whilst he was rendering services in Internet technology
to
Wesbank. He had previously provided services to Wesbank through other
employment services.
[3]
Wesbank purchased 500 “multiple activation keys” for
Windows 7 Professional and 5000 multiple activation keys for
Windows
Office 2010 from Microsoft. These “keys” are 25 character
codes, including letters and numbers, used to activate
Microsoft
software. They are intended for the use of Wesbank employees for
official purposes.
[4]
There are three types of software license product activation keys
which are relevant to this dispute: a volume license key,
a beta key
and a KMS key. A volume license key is a single license key that can
be used to activate multiple installations of a
software product on
different computers. A beta key is used to activate pre-released
software that is still being tested and is
not commercially available
on the market yet. And a KMS key is a software product activation key
embedded in the software product
itself. The beta key is freely
available to the public, the others are not.
[5]
Denney sent two activation keys per email to Roberta Sabbioni, the
mother of his girlfriend, Monica Sabbioni (who also rendered
services
to Wesbank). Monica was a database administrator and did not have
access to the activation keys. Denney sent the keys
to Roberta on 20
June and 10 August 2011. Monica asked him to help her with the
installation of Microsoft Office on her mother’s
personal
computer.
[6]
Wesbank’s forensic investigation services picked up the emails.
They confronted the employee (Denney). He explained that
he had
mistakenly divulged Wesbank’s multiple activation keys when he
only intended to forward a so-called “beta key”.
As
explained above, beta keys are used to test products and to activate
Microsoft products temporarily.
[7]
Denney was
called to a disciplinary enquiry to answer to the following
allegations of misconduct:
[2]
7.1 “Contravention
of section 4.2.1 of the Wesbank disciplinary code namely, theft,
fraud, dishonesty or the unauthorised
removal of any material from
the bank, or from any personal premises where such material is kept
in that you
dishonestly
distributed the Wesbank Microsoft
Office license keys to Raymond Billson and Roberta Sabbioni on 20
June 2011 and again on 10 August
2011.
7.2 Contravention of
section 4.2.9 of the Wesbank disciplinary code namely, being in
breach of the bank’s confidentiality
agreements and/or by
divulging such confidential information, in that you divulged
information you obtained through your position
as Team Leader Server
Administration, to external and authorised personnel.
7.3 Contravention of
section 4.2.19 of the Wesbank disciplinary code namely, disregarding
or breaching the bank’s code of
ethics, in that you
dishonestly
distributed the Wesbank Microsoft Office license keys to Raymond
Billson and Roberta Sabbioni on 20 June 2011 and again on 10 August
2011.”
[8]
The chairperson found that the employee had committed the misconduct,
but on the first allegation he had not done so intentionally.
EOH
dismissed him. He referred an unfair dismissal dispute to the CCMA.
Conciliation failed and he referred it to arbitration.
The arbitration
[9]
At the arbitration, Denney explained that he sent two beta keys to
Roberta Sabbioni on 20 June 2011. One of them was intended
for a
Windows 7 evaluation product and the other for a beta version of
Microsoft Office. He was not sure which one Roberta wanted
so he sent
her both. They were both beta keys and were freely and publicly
available.
[10]
Some weeks later, Roberta emailed Monica to say that the email from
Denney had gone missing and she asked for it to be re-sent.
On 10
August 2011 he sent her what he believed to be the beta key in
respect of the Microsoft Office product he had originally
sent her on
20
th
June. He found it on his team’s server instead
of his own Microsoft Office Outlook mailbox. The software license
product
activation key is not readily recognisable and is difficult,
if not impossible, to memorise since it is 25 characters long,
comprising
numbers and letters. He assumed that he had sent the same
beta key as before, but when he was called in about a month later and
he checked again, he found that he had in fact sent Roberta a Wesbank
volume license key. According to him, he had mistakenly done
so,
believing it was a beta key. He had not picked this up before because
volume license keys do not appear on the KMS server and
he had been
looking in the wrong place. He then went to the office of his
superior, Willie, and explained to him that he had unintentionally
sent out the wrong key.
The award
[11]
The arbitrator found that the dismissal was procedurally fair.
Turning to substance, he made the following findings:
11.1 EOH had acted
inconsistently by imposing a lesser sanction on Monica Sabbioni, on
whose insistence Danney had sent the keys
to her mother. The
chairperson of the hearing, Mr Grové, had recommended a
written warning for her. He considered that Wesbank
had suffered no
harm or prejudice. The same was true for Danney’s actions.
11.2 The employee was a
satisfactory witness who readily admitted that he had distributed the
software keys to the two individuals;
that he had done so mistakenly,
being under the impression that he had sent out a beta key only; he
immediately approached Mr Bruwer,
the IT infrastructure manager, when
he realised his mistake; he admitted his error; and he admitted that
his check for the software
on the server should have been more
thorough.
11.3 The employee’s
evidence was undisputed that he never intended to steal Wesbank keys;
he had means and skills to have
discreetly sent out the keys in
issue, should he have wanted to; it could have sent a key via cell
phone; he could have centred
by SMS; and it could have uses network
within the IT industry to send them out undetected. His undisputed
evidence was that the
key that he had mistakenly sent out would only
operate if the recipients had three elements which they did not have
in this case,
including the server at Wesbank. The arbitrator added:
“In any event the [employee] was neither found guilty of theft
nor
of fraud.”
[12]
The chairperson of the disciplinary enquiry did not find any
dishonesty on the employee’s part but found him to have
been
grossly negligent. The arbitrator was persuaded that charges one and
three required EOH to prove intent on the employee’s
part; that
the test for negligence was whether a reasonable person in the
position of the employee would have foreseen the harm
resulting from
his acts and would have taken steps to guard against that harm; and
that the tests for dishonesty and negligence
are mutually
destructive. He found that the employee was dismissed for misconduct
that he was not charged with, namely negligence.
[13]
The arbitrator found that the dismissal was substantively unfair.
With regard to compensation, he considered the following
factors:
13.1 the employee’s
length of service with a clean disciplinary record;
13.2 the employee had
similar mitigating factors and identical personal factors to Monica
Sabbioni, who had only received a written
warning;
13.3 EOH had not proven
substantive fairness as there was no nexus between the finding of the
chairperson and the sanction given,
particularly in light of the
employee having been remorseful, and admitting his mistake to
superior;
13.4 the employer’s
evidence was “incoherent, contradictory and legally unsound”;
and
13.5 it would be
difficult for the employee to find alternative employment.
[14]
It is in those circumstances that the arbitrator awarded compensation
equivalent to 10 months’ remuneration.
Evaluation of review
grounds
[15]
In its notice of motion, EOH asked for the award to be reviewed and
set aside and substituting it with an award that the dismissal
was
fair; alternatively, substituting it with an award compensating him
in a smaller amount; and further alternatively, referring
the matter
back to the CCMA for a fresh arbitration.
[16]
EOH raised four grounds of review, all of them based on the premise
that the arbitrator committed misconduct or a gross irregularity,
and
that his conclusion was unreasonable. They are extensively
formulated; rather than attempting to summarise them, I shall deal
with each of them in turn. But in its heads of argument, for the
first time, it also argues that the dispute should be remitted
for a
fresh arbitration because the record is defective. That is the first
issue to be determined before dealing with each of the
original
review grounds.
Defective record?
[17]
Mr
Lennox
argued, based on the recent Constitutional Court decision in
Baloyi,
[3]
that
the dispute should in any event be remitted for a fresh arbitration
because the record is defective.
[18]
He argued that the arbitration was conducted over two days; that the
first day’s proceedings, comprising the company’s
evidence, was not properly recorded; and that it thus had to be
reconstructed.
[19]
The parties, to their credit, did reconstruct the record. But EOH did
not file a supplementary or replying affidavit. It stood
by its
notice of motion and its original review grounds.
[20]
Despite that, Mr
Lennox
argued that it was difficult to
discern what exact evidence was led for EOH; that the parties could
not agree on Bruwer’s
evidence and whether he had made
concessions under cross-examination; and that the arbitrator gave
only a brief summary of his
evidence.
[21]
Firstly, this ground of review was not foreshadowed by the founding
affidavit; nor was it raised in the rule 7A(8) notice,
a
supplementary founding affidavit or a replying affidavit, despite the
company having had the opportunity to do so after the record
had been
reconstructed – a process in which it played an active role.
[22]
Secondly, this situation is very different from that in
Baloyi
,
where there was no record. In this case, the parties did what they
should and reconstructed the record. That record is sufficient
for
the purposes of deciding the case, especially given that EOH stood by
its notice of motion and review grounds.
[23]
As Ms
Venter
pointed out, EOH has not contended – either
in its founding affidavit or even the belated heads of argument –
that
the record is incomplete or not properly reconstructed. The
parties and their legal representatives actively participated in the
reconstruction. Only two paragraphs dealing with Bruwer’s
evidence were disputed. One instance was a dispute whether Denney’s
counsel had highlighted that the alleged misconduct only pertained to
the key for Microsoft Office and not for Windows. The other
was
whether Bruwer conceded that a key was not readily identifiable
because it contained some 25 characters.
[24]
Ms
Venter
argued, quite correctly, that nothing turns on
either of these two disputed points. The first one was an
interjection by counsel
and not Bruwer’s evidence; and in any
event, the arbitrator accepted that the employee had sent out a
Microsoft key belonging
to Wesbank. He concluded, though, that it was
not intentional or dishonest, whether it was for Windows or Office.
And it does not
matter if the key was readily identifiable in the
context of the allegation of dishonesty. The employee was charged
with dishonesty,
not negligence. The issue before the arbitrator was
whether he was fairly dismissed for that type of misconduct.
[25]
This new ground of review cannot succeed, even if it were to be
entertained.
First ground
[26]
At paragraph 33 of the arbitration award the arbitrator found that
the employee’s evidence was undisputed that he “never
intended to steal” Wesbank’s multiple activation keys.
But, says Mr
Lennox
, that is not what he was dismissed for. He
was dismissed for divulging the keys “in a grossly negligent
manner”.
[27]
The arbitrator’s finding is correct: Denney’s evidence
that he never intended to steal the keys is undisputed.
And he was
not found guilty of theft in the disciplinary hearing. The dispute
before the arbitrator was not whether he had committed
theft –
that is not what he was dismissed for. The question was whether he
had dishonestly distributed Wesbank property.
[28]
The
arbitrator had a clear understanding of the dispute he was required
to determine, as required by
Gold
Fields.
[4]
He found that dismissal was unfair because the employee had
mistakenly (and not intentionally) sent out a Wesbank owned key that
he at the time believed to be a freely available beta key. The
arbitrator came to this conclusion based on the undisputed evidence
that:
28.1 The employee had
checked the server (after having sent the second email in August) to
ensure that the key that he sent to Roberta
was not Wesbank property.
He did so because the keys are not easily distinguishable.
28.2 When he realised his
error, he approached his superior and told him.
28.3 He was not averse to
a disciplinary hearing.
28.4 He had the means and
skills to send out keys discreetly, avoiding detection, if he had
intended any subterfuge.
[29]
Given this evidence, the arbitrator came to a conclusion that another
reasonable decision-maker could come to, i.e. that Denney
had not
acted dishonestly. This ground of review must fail.
Second ground
[30]
Denney was dismissed, Monica was not. The arbitrator found that
EOH was inconsistent, as they had committed the same
misconduct.
[31]
EOH argued that their actions were not the same. Denney sent the
emails, albeit at Monica’s insistence. He had access
to the
keys, she did not. Therefore, EOH argued, the trust relationship
differed.
[32]
But apart from the fact that this was but one aspect that the
arbitrator considered, inconsistency hardly played a role in
the
arbitrator’s decision on whether the sanction of dismissal was
fair. He found that Denney did not act dishonestly;
ergo
, he
did not commit the misconduct he was charged for;
ergo
, he
could not be dismissed (or sanctioned at all). EOH alleged
dishonesty; it could not prove it.
[33]
This ground of review also fails.
Third ground
[34]
EOH argued that the arbitrator misconstrued the evidence on various
issues.
[35]
Firstly, it was argued, the arbitrator mistakenly found that Denney
had “mistakenly sent out a defunct Office key”.
The key
was not defunct, EOH says. But the arbitrator correctly found that,
in order to use it, the recipients would need three
things that they
did not have, viz the media; the key to unlock the media; and the
Wesbank server.
[36]
Secondly, the argument goes, Denney did not “approach Mr Bruwer
upon detecting his mistake”. But in fact, he only
did so after
having been confronted by the forensic investigation team. This is an
example of an applicant carefully parsing through
the award, looking
for every tiny discrepancy. It is correct that the forensics team
confronted Denney; but then he checked the
server and, upon realising
his mistake, he did go to Bruwer and to Willie. This finding is not
unreasonable.
[37]
Lastly, the argument is that the arbitrator mistakenly found that
Denney had 7 ½ years’ service, and not one year.
But
that is not what the arbitrator found; that was merely a recordal of
Denney’s evidence. The arbitrator made no connection
between
the years of service and the exercise of his discretion in awarding
compensation.
[38]
The third ground of review also fails.
Fourth ground
[39]
Perhaps
most importantly, Mr
Lennox
argued
that the arbitrator placed too much emphasis on the charge of
dishonesty as opposed to gross negligence. He referred in this
regard
to
Myers
:
[5]
“
Before dealing
with the issue of sanction, I need to re-emphasise that an employer
is not and cannot be expected to frame a charge
sheet in respect of
misconduct committed by an employee as one would prepare a charge
sheet in a criminal matter. The importance
of a so-called charge
sheet in a misconduct enquiry is to set out the allegation that
constitutes the misconduct so that the employee
is aware of the case
he or she is required to answer. It is the allegations that
constitute the misconduct which must be considered
and a conclusion
arrived thereon.”
[40]
That much
is trite. But in this case, the employee was charged with dishonesty.
That is the case he went to meet and that is the
case that the
employer could not prove. The arbitrator correctly found that
the employer did not discharge the onus of proving
intent, and thus
could not prove the misconduct that it had alleged. That is why the
dismissal was unfair. That conclusion is not
so unreasonable that no
other decision-maker could come to the same conclusion.
[6]
Conclusion
[41]
The applicant has not passed the hurdle of showing that the award is
reviewable set out in
Gold Fields
and
Sidumo.
The
application cannot succeed. There is no longer any employment
relationship between the parties. The employee, who has waited
for a
long time for the arbitration award to take effect, has had to incur
significant legal costs to defend the award. I see no
reason in law
or fairness why costs should not follow the result.
Order
The
application for review is dismissed with costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court
APPEARANCES
APPLICANT:
M
A Lennox
Instructed
by Van der Merwe & Bester.
THIRD
RESPONDENT:
Tanya
Venter
Instructed
by Allardyce & partners.
[1]
Labour
Relations Act 66 of 1995
.
[2]
My
underlining.
[3]
Baloyi
v MEC for Health & Social Development, Limpopo
[2016]
4 BLLR 319 (CC).
[4]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
(2014)
35
ILJ
943
(LAC) par 31.
[5]
National
Commissioner, SAPS v Myers
[2012]
7 BLLR 688
(LAC) par 97.
[6]
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097
(CC) par 110.