About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 246
|
|
Cash Paymaster Services (Northern) (Pty) Ltd v Maake NO and Others (JR1848/2012) [2017] ZALCJHB 246 (29 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no. JR 1848/2012
In
the matter between:
CASH
PAYMASTER SERVICES (NORTHERN)(PTY)
LTD
Applicant
and
COMMISSIONER
JOSIAS SELLO MAAKE
N.O.
First Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
VIVIAN
TSIETESO
NTLHEKOA
Third Respondent
Heard:
09 July 2014
Delivered:
29 June 2017
Summary:
Application in terms of
section 145
of the
Labour Relations Act, No.
66 of 1995
. Commission for Conciliation, Meditation and Arbitration –
arbitration award – review – Commissioner ruling
dismissal
unfair after finding that employer had background.
JUDGMENT
WOODHOUSE,
AJ
Introduction
[1]
On 21 October 2016, my Judgment in this matter was handed down by
Gush J. The Judgment which was handed down was handed
down in
error and in circumstances where there was reference to issues and
matters which had nothing to do with this matter and
should not have
formed part of the Judgment at all.
[2]
This error was common to all the parties and myself. As a consequence
thereof, on 6 March 2017, I met with the parties in Chambers
and
confirmed with them that the Judgment had been handed down in error
and it was agreed that I would rescind it and provide them
with the
correct Judgment, which I had already provided to the Registrar.
[3]
In terms of Rule 16A of the Labour Court Rules, this Court is clothed
with the power to rescind or vary any Order or Judgment
in
circumstances, including:
“
i
In which there is an ambiguity or patent error or omission, but only
to the extent of such
ambiguity, error or omission; or
ii
granted as a result of a mistake, to both parties.”
[1]
[4]
In light of the above, the Judgment and Orders handed down on 21
October 2016 are rescinded and set aside and replaced with
the
Judgment and Orders set out hereunder.
Background
[5]
This is an application in terms of section 145 of the Labour
Relations Act, No. 66 of 1995 (“the Act”).
[6]
The Applicant was awarded the contract for the paying of pensions and
social grants by the Government.
[7]
The Third Respondent (“Ntlhekoa”) was employed as an
operator.
[8]
Ntlhekoa was charged with a number of offenses including dishonesty,
sabotage, negligently and/or knowingly failing to comply
with
policies and procedures and causing the Applicant to suffer damage or
loss.
[9]
She attended a disciplinary enquiry and was found guilty and
dismissed on 25 November 2010.
[2]
[10]
Ntlhekoa referred a dispute to the Commission for Conciliation,
Mediation and Arbitration (“the Second Respondent”).
The
dispute was not settled at conciliation and was arbitrated. The
arbitration took place on 30 August 2011 and 6 June 2012.
[11]
The Second Respondent found that Ntlhekoa’s dismissal was
substantively unfair and awarded her an amount of six months’
remuneration.
[12]
The Commissioner at arbitration found that Ntlhekoa was guilty of the
complaint of negligence.
[13]
The Commissioner found that the sanction of dismissal was too harsh
and that Ntlhekoa was entitled to six months’ remuneration
as
compensation.
The
Applicant’s version
[14]
Ntlhekoa was found guilty of
“
1
dishonesty in that you removed and/or assisted in the removal of
tally rolls for payment work station
A of the Mutale Payment Team for
payment on 8 November 2010;
2
sabotating that you deliberately removed and/or assisted in
removal of the tally
rolls for payment work station A of the Mutale
Payment Team for payments made on 8 November 2010;
3
negligently and/or knowingly failing to carry out policies and
procedures in that you
failed to adhere to, inter alia, tally roll
control policies and procedures when you neglected to ensure that the
Company tally
rolls were secured at all times;
4
damage or loss suffered in that the Company suffered a loss of tally
rolls and a number
of staff were required to work overtime whilst
attempting to recover the missing tally rolls;
5
bringing the Company’s name into disrepute with SASSA.”
[15]
These complaints for which Ntlhekoa was found guilty, arose out of,
in essence, her failure to challenge or deal with what
were allegedly
serious irregularities occasioned by her Branch Manager.
[16]
The Branch Manager and another senior employee were also dismissed as
part of this incident which resulted in the tally rolls
disappearing
and/or not being accounted for and locked in a storeroom.
[17]
Ntlhekoa had been in control of the relevant tally roll, and
allegedly placed it in the storeroom but had not ensured that
the
storeroom was locked.
[18]
She had failed a polygraph test regarding her actions on this
specific day.
[19]
She was aware of the rule that the storeroom should have been locked
once she had secured the tally rolls in it. Her failure
to report
that it was unlocked amounted to a breach of the rule.
[20]
There had been grievances lodged against the Branch Manager including
by Ntlhekoa. He was under the impression that his subordinates
were
trying to get rid of him.
[21]
The Manager, Supervisor and Ntlhekoa all testified during their own
enquiries that the storeroom had been unlocked and the
tally rolls
had been placed in an envelope in it.
[22]
There had been problems with the locking of the storeroom previously.
[23]
The Branch Manager was responsible for the safe keeping of the
storeroom keys and for ensuring that the storeroom was locked.
[24]
The Applicant had suffered a financial loss in the form of overtime
spent on staff looking for the missing tally roll.
It had also
suffered a loss in the form of data which had gone missing. The
Applicant, however, was unable to establish whether
any money had
been stolen.
[25]
In terms of the requirements of SASSA and the Applicant’s
policies and procedures for the storing of tally reports is
concerned, the following is provided for:
“
Tally
rolls are to be stored in envelopes, one envelope for each payment
team for day of payment;
The envelopes must have the details
of the payment district and the date entered thereon, envelope stop.
Envelopes have to be stored
monthly on date order and stored in a
secure cupboard under locked control.
(Clause
29.3.2 of the policy)
[26]
Ntlhekoa was afforded a polygraph test which she failed on two of the
three relevant questions. The two questions
related to whether
she was aware of who removed or destroyed the tally rolls for payment
work station A of the Mutale Payment Team
for 8 November 2010.
[27]
Ntlhekoa’s case was that:
27.1
she disputed that she was guilty of the complaints lodged against
her;
27.2 she had placed the tally
rolls in an envelope and put them in the storeroom. The storeroom was
unlocked. The Branch Manager
was responsible for ensuring that the
storeroom was always locked;
27.3 she disputed lying to
Lizette Snyman, who carried out the polygraph test.
The
Commissioner’s findings
[28]
The Commissioner found that:
28.1
the complaints lodged against Ntlhekoa amounted to a splitting or
duplication of charges and ultimately convictions by the disciplinary
enquiry chairperson on these charges;
28.2
on three of the four charges, he found that there was no evidence
to
find Ntlhekoa guilty of these (charges 1, 2 and 4 in paragraph 7
above). The only complaint which Ntlhekoa was guilty
of was
negligence (charge 3 paragraph 4 above);
28.3
the disciplinary enquiry chairperson’s conduct in finding
Ntlhekoa guilty of charges 1, 2 and 4 required direct evidence. The
Applicant was only able to tender circumstantial evidence which
was
not sufficient and unsatisfactory;
28.4
the evidence of the polygraph test was not suitably corroborative
of
any other evidence led;
28.5
Ntlhekoa was guilty of negligence and not gross negligence. Had
she
been charged with gross negligence, that may have resulted in the
sanction of dismissal in terms of the Applicant’s Disciplinary
Code and Procedure;
28.6
Ntlhekoa was entitled to six month’s compensation or a period
the equivalent of the balance of her contract, whichever was the
greater, in terms of the pre-arbitration minute signed by the
parties.
The
Applicant’s grounds of review
[29]
The Applicant’s grounds of review are that:
29.1
the Commissioner misdirected himself or alternatively reached a
number of unreasonable
conclusions namely that –
29.1.1
he erred in focusing on the fact that
Ntlhekoa was a first offender
and not on the seriousness of the offence which warranted dismissal.
In addition to this, the Applicant
complains that the only issue
which the Commissioner had to decide was whether Ntlhekoa was guilty
of the offence or not;
29.1.2
he failed to properly attach significant
weight to the outcome of the
polygraph test;
29.1.3
as a consequence of the above, the Commissioner
had misapplied his
mind, or reached an unreasonable conclusion or exceeded his powers or
committed a gross irregularity in the
conduct of the proceedings.
[30]
In the Applicant’s Heads of Argument, the Applicant argued that
the Commissioner also misconducted himself by failing
to take into
account the circumstantial evidence led by the Applicant’s
witnesses. This ground was not clearly pleaded at
all.
The
test on review
[31]
Arbitration awards issued by commissioners of the CCMA and
arbitrators of various bargaining councils are reviewable in terms,
inter alia
, of section 145 of the Labour Relations Act, 66 of
1995 (“the LRA”) on any of the specific grounds set out
therein.
These grounds are:
31.1 where the
Commissioner commits misconduct in relation to his duties as an
arbitrator;
31.2 where the
Commissioner commits gross irregularities in the conduct of the
arbitration proceedings;
31.3 where the
Commissioner acts out of his powers as an arbitrator, or where the
Commissioner’s ruling/award
was improperly obtained.
[32]
The test to be applied by this Court in deciding on the reviewability
or otherwise of an arbitration award has been settled
by the
Constitutional Court in
Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others
[2007] 12 BLLR 1097
(CC). This test is based
on the Constitutional standard of reasonableness which, as the
Constitutional Court held in
Sidumo
, now suffuses the grounds
of review set out in section 145 of the LRA précised above.
[33]
Insofar
as any
controversy may have emerged on the full extent of this Court’s
powers on review, it has been finally settled by the
Supreme Court of
Appeal (“the SCA”) in
Herholdt
v Nedbank Limited and Others
.
[3]
[34]
In the
Herholdt
decision,
the SCA recognised the continued applicability of the gross
irregularity ground of review.
[4]
The SCA, however, considered that the upper ground of review (based
on unreasonableness) should apply a little more narrowly than
certain
Judgments of the LAC and this Court had previously found. The key
paragraph of the SCA decision is the following:
‘
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 s 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. A 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.’
[5]
[35]
In my view, the effect of the SCA decision is important, but hardly
extraordinary. It is not open to an applicant to seize
upon errors of
fact or law (gross irregularities) made by a commissioner/arbitrator
and regard these as being sufficient to sustain
a review application.
The errors must have led to an unreasonable result (i.e. ultimate
decision). But this does not mean that
errors of fact or law by
commissioners will not make for a successful review challenge in
appropriate cases. I consider the following
observations by Murphy
AJA in the LAC Judgment in
Herholdt v Nedbank Limited
[2012] 9
BLLR 857
(LAC), to remain instructive:
‘…
I imagine, few
decisions that are wrong are likely to be upheld as reasonable.
Leaving aside the moral hazard of a message to commissioners
that
there is no need to get their decisions right, it being enough if
they act reasonably, commissioners who get it wrong on the
facts will
usually commit the concomitant irregularity of not taking full or
proper account of material evidence, and where they
erred on the law,
they will fall short in not having properly applied their minds to
the issues and thereby having denied the parties
a fair trial. The
inexorable truth is that wrong decisions are rarely reasonable….’
[6]
[36]
The above notwithstanding, I am of the view that none of the grounds
of review raised by the Applicant have any merit in this
matter.
Conclusions
[37]
Having considered the above, I find that the Commissioner has not
misconducted himself or committed a reviewable irregularity
in terms
of section 145 or the principles referred to in the
jurisprudence above for the following reasons:
37.1
he has properly considered the evidence led by all of the parties at
the arbitration.
His finding that the Applicant had unfairly split
certain complaints was correct given the nature of the evidence
before him;
37.2
he correctly found that the circumstantial evidence led by the
Applicant was unsatisfactory.
It is clear from the evidence of the
Applicant’s own witnesses that –
37.2.1
the Branch Manager should have been in
possession of the key to the
storeroom and ensured that it was locked;
37.2.2
there had been numerous issues and problems
with the locking of the
storeroom over a period of time;
37.2.3
although the Applicant raised the issue
that the Commissioner failed
to take into consideration the circumstantial evidence, and that this
circumstantial evidence was
satisfactory and disclosed a chain of
events, I disagree. I have noted the judgments referred to me in the
Applicant’s Heads
of Argument
[7]
,
and I disagree that the facts of this case are distinguishable.
I have already referred to why this is so above.
In
addition to this, the Applicant disciplined the Branch Manager and
Supervisor. All of these individuals were also involved in
the
overall securing of the tally rolls and were sent to Nlthekoa;
37.2.4
the only evidence, after all is said
and done, which lay against
Ntlhekoa was that of the polygrapher and her version that she knew
the door was not locked. I agree
with the Commissioner’s
finding that the evidence of the polygrapher was not persuasive and
cannot be relied upon to find
Ntlhekoa guilty of any of the offences
other than negligence. This Court and the Labour Appeal Court
has dealt with the admissibility
of polygraph tests as evidence.
The Labour Appeal Court in
DHK Supply Chain (Pty) Ltd and others v
National Bargaining Council for the Roadfreight Industry and others
[2014] 9 BLLR 860
(LAC) sets out the jurisprudence on polygraph
tests and concludes that “
In summary, the
respectability of polygraph evidence, at best, remains an open
question, and any litigant seeking to invoke it for
any legitimate
purpose, must, if needs be, adduce expert evidence of its conceptual
cogency and the accuracy of its application
in any given case;”
37.2.5
It does not appear that the polygrapher was
led as an expert in
the traditional sense. No expert notice was submitted.
Notwithstanding this, I cannot fault the Commissioner’s
finding
on the corroborative value of Snyman’s evidence;
37.3
the Commissioner complied with what he was required to do in terms
of
the pre-arbitration minute. He was required to assess whether
Ntlhekoa was guilty of the complaints lodged against her. This
he
did. He found her guilty of one of the complaints, namely negligence;
37.4
the Commissioner considered the fact that Ntlhekoa had a clean
disciplinary record as a mitigating factor. This was something he was
required to do;
37.5
the Commissioner’s finding that because he has found in favour
of Ntlhekoa, in these circumstances, in terms of the pre-arbitration
minute, the amount of compensation was pre-determined
in the
form of six months or the balance of her contract of employment is
not correct. Ntlhekoa was seeking compensation
of six months or
the unexpired portion of her contract, whichever was the greater.
It did not mean that the Commissioner
was required to automatically
award this. Nevertheless, although the Commissioner’s
interpretation of the pre-arbitration
minute in this regard was
incorrect, I do not find it to amount to a gross irregularity
requiring me to intervene with the Commissioner’s
award.
It is trite that an error does not mean an award is automatically
reviewable. In the circumstances of this case,
I believe that
the award of six months compensation was correct.
Order
[38]
In view of the above, the Judgment handed down on 21 October 2016 is
rescinded and set aside and replaced with the following
Order -
38.1
the Applicant’s application is dismissed
38.2
there is no order as to costs.
___________________
D
Woodhouse, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant:
Advocate Hutchinson brief
by Fluxmans Incorporated
For
the Respondent:
Advocate P Nkutha briefed by Finger Phukubje Inc
[1]
Rule 16A1(a) (ii) and (iii).
[2]
Page 108 of the record.
[3]
See:
Herholdt v Nedbank
Limited
(Congress
of South African Trade Unions as amicus curiae)
[2013]
11 BLLR 1074
(SCA)
.
[4]
See: s145 (2)(b) of the LRA.
[5]
At para 25.
[6]
At para 55 of the LAC Judgment.
[7]
Aluminium
City (Pty) Limited v Metal and Engineering Industries Bargaining
Council and Others
(2006) 27
ILC
2567 (LAC);
Standard
Bank of SA v Mosime N.O.
and
Another 2008 (29)
ILJ
3078 (LAC).