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 374
|
|
NTM obo Tunyiswa v Commission for Conciliation, Mediation and Arbitration and Others (JR810/15) [2017] ZALCJHB 374 (10 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR810/15
In
the matter between:
NTM
OBO P TUNYISWA
Applicant
and
THE
COMMISSION FOR
CONCILIATION,
First Respondent
MEDIATION
AND ARBITRATION
COMMISSIONER
CH STRIPP
N.O
Second Respondent
SWISSPORT
SOUTH AFRICA (PTY) LTD
Third Respondent
Heard:
18 July 2017
Delivered:
10 October 2017
Summary:
The Applicant sought to review and set aside an award of the Second
Respondent. It was found that
the outcome of the award was reasonable
and the application was dismissed.
JUDGMENT
HUTCHINSON,
AJ
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act
[1]
(LRA) to review
and set aside an arbitration award of the Second Respondent.
[2]
The Applicant sought condonation for the late filing of its review
application. The Third Respondent also sought condonation
for the
late filing of its answering affidavit. Both applications were
unopposed and in light of the minimal delays, I deemed it
in the
interest of justice to grant condonation in respect of both delays.
[3]
The Applicant commenced her employment with the Third Respondent in
the capacity as a Wheelchair Assistant on 1 December 2010.
The
Applicant was promoted to the position of OCC controller on 1 August
2011. Pursuant to a disciplinary enquiry, the Applicant
was found
guilty of the following charges:
“
1.
Making a secret profit at the expense of the employer in that you are
allegedly running
an illegal business of lending money to employees
on interest (Loan Shark) in the workplace during the times you are
scheduled
to be working.
2.
Moonlighting and engaging in a business that is in competition with
the employer
(Swissport SA) in terms of times in that you are
allegedly running a loan shark/money laundering in the workplace and
during working
times.”
[4]
The Applicant was dismissed on 8 October 2014 and subsequently
referred an alleged unfair dismissal dispute the First Respondent.
The Second Respondent was appointed under the auspices of the First
Respondent to arbitrate the dispute. The Second Respondent
found that
the dismissal of the Applicant was procedurally and substantively
fair.
Grounds
of review
[5]
The grounds of review as enumerated in the Applicant’s heads of
argument are as follows:
“
2.1
It is submitted that the Commissioner committed gross misconduct by
falling to draw an adverse
inference on the failure by the Respondent
to call in Mr. Magaboya to corroborate the allegation to the effect
that he borrowed
money from the Applicant, let alone that the
Applicant was running a loan shark in the workplace.
2.2
It is further submitted that the Commissioner committed gross
misconduct by failing to rule
contradictions in favour of the
Applicant in relation to the different amounts mentioned respectively
by Desigan Subroyen and Kenneth
Monnana.
2.3
It is further submitted that the evidence presented at the
arbitration does not support
what is set out in the arbitration award
in particularly the conflicting versions to the effect that the
Applicant gave Magoboya
R1000,00 at the KFC and that Magoboya was
given R1400,00 at the Hotel.
2.4
It is further submitted that the Commissioner had committed gross
irregularity by failing
to apply her mind on the fact that the Third
Respondent, Swissport South Africa did not dismiss the employees, who
committed the
same offence, let alone that the Third Respondent acted
inconsistently in dismissing the Applicant.
2.5
It is further submitted that the Commissioner had committed a gross
irregularity by ignoring
evidence presented before her as well as
concessions made by the witnesses of the Third Respondent. To this
end, the Commission
ignored the Applicant’s evidence to the
effect that she does not know Magaboya and that she does not run a
loan shark business,
let alone that she did not confess to Desigan
Subroyen and Kenneth Monnana that she lent R1000,00 to Magaboya.
2.6
It is further submitted that the Commissioner had committed a gross
irregularity by failing
to give due consideration to the evidence to
the effect that the Third Respondent called the Applicant in to their
offices long
after she was dismissed in the pretext that they wanted
to resolve the CCMA unfair dismissal dispute in which she is
represented
by the Union and later claimed without basis that the
Applicant refused to be reinstated.
2.7
To this end, the Commissioner failed to draw adverse inference
against the Third Respondent
for its failure to call in the Union
that represented the Applicant in the CCMA arbitration to be part of
the aforesaid meeting.
2.8
It is submitted that the award made out by the Commissioner is
unreasonable.’
Award
of the Second Respondent
[6]
The Third Respondent called four witnesses to testify on its behalf
namely: Mr Desigan Subroyen (Subroyen) (Vice President HR),
Ms
Sonande Struwig (Struwig) (HR Manager), Mr Kenneth Monanna (Monanna)
(HR Manager) and Mr Masala Nemakonde (Nemakonde) (Duty
Manager).
Subroyen testified that the Third Respondent lent and advanced money
to employees in special circumstances which did
not attract any
interest.
[7]
An employee, Mr Patrick Magaboya (Magaboya) approached the Third
Respondent on several occasions for financial assistance. The
financial plight of Magaboya and some other employees was so
desperate that they would approach the Third Respondent with a
request
to withdraw funds from their pension to pay off debts. When
Magaboya approached Subroyen for financial assistance, it came to
light
that he had borrowed money from the Applicant and was required
to repay her with interest. The Third Respondent conducted an
investigation
into money lending amongst its employees and it
revealed that the Applicant had been lending money to her colleagues
and charging
them interest on the loans.
[8]
In her award, the Second Respondent goes on to state the following:
“
9.
Around February 2015 the applicant met with Kenneth Monanna and
Subroyen, and asked
to be reinstated, as she had heard of the
reinstatement of other employees dismissed for similar offences.
Subroyen acknowledged
that some employees had been re-employed, but
under specific conditions. For example Shezi was reinstated after she
made a full
confession, declared all her `loan shark’
activities, promised to recover the loan amount excluding interest
from her colleagues
and undertook to stop her loan shark activities.
The applicant was given the opportunity to be reinstated under the
same conditions,
but the applicant did not agree to the conditions.
At the February 2015 meeting, the applicant confessed that she met
Magaboya
at KFC, Kempton Park, and she gave Magaboya R 1 000.
Magaboya repaid her R 1 800 when he met the applicant and her husband
when
they were out for breakfast. The applicant admitted that she
lent money with interest to Magaboya but denied that she was
operating
as a loan shark or that she was guilty of any wrongdoing.
The applicant’s representative put it to Subroyen that the
meeting
of February 2015 never took place, but Subroyen confirmed
that it did take place. Subroyen denied the applicant’s
representative’s
version that Subroyen coerced Magaboya into
saying that he resigned because he was indebted to the applicant.
Subroyen agreed that
no employee had raised a grievance against the
applicant.”
[9]
Struwig chaired the Applicant’s disciplinary enquiry. It is not
necessary to consider the evidence in light of the fact
that the
Applicant disavowed any attack on the procedural fairness of the
dismissal.
[10]
Monanna testified that he conducted the investigation into alleged
loan shark activities. He confirmed that in February 2015,
a meeting
was held with the Applicant and Subroyen. In her award, the Second
Respondent captured his evidence as follows:
“
15.
….. Monanna advised the applicant of the conditions for re
employment, namely admission
of guilt, full disclosure of loan shark
activities, undertaking to stop loan shark activities and a promise
to forego interest
on loans granted. The applicant told Monanna that
she was falsely accused of operating as a loan shark. Monanna
believed her and
Monanna and the applicant then met with Subroyen. At
this meeting the applicant explained that she helped the `old man’
(namely
Magaboya) by giving him R 1 000, but that this was not her
money, it was money from `people at KFC.’ Magaboya met the
applicant
when she was having breakfast with her husband at a hotel,
and he repaid her R 1 400. Under cross examination Monanna stated
that
Magaboya did not pay his debt on time so the interest increased
and Magaboya owed R 1 800, which is the amount he repaid the
applicant.”
[11]
Nemakonde testified that before September 2014, the Applicant and
Magaboya came to the HR offices because Magaboya wished to
meet with
Subroyen to borrow money to pay for his son’s school fees.
Whilst Magaboya was speaking to Subroyen, the Applicant
exchanged
numbers with Nemakonde and asked him to bring R 1400.00 to her house
which Nemakonde was to receive from Magaboya when
he obtained a loan
from the Third Respondent. The loan was declined however, on either
the same day or a day thereafter, the Applicant
contacted Nemakonde
to establish whether the loan had been granted.
[12]
The Applicant contested the evidence of the Third Respondent’s
witnesses. In particular, she denied ever having met Magaboya
or
lending him money. She denied having told Subroyen that she had lent
money to Magaboya. Moreover, the Applicant denied having
engaged in
any discussions with Nemakonde to the effect that she would be paid
the amount which she hoped the Third Respondent
would lend Magaboya.
Discussion
[13]
The Second Respondent was enjoined to apply the civil standard of
proof to the conflicting versions by considering the force,
strength
and weight of the evidence. Where the quantum of proof requires a
preponderance or balance of probability, it means that
the
probability of the truth of a particular averment is measured or
balanced against the probability of it being untrue.
[2]
[14]
The evidence was overwhelmingly in favour of the Third Respondent’s
case that the Applicant was guilty of lending money
to Magaboya at an
exorbitant interest rate. She was clearly profiting from her money
lending activities. Any contradictions in
the precise quantum
involved played a minor role in assessing the overall weight and
strength of the evidence. It is not for an
employer to prove its case
beyond reasonable doubt. The issues raised by the Applicant do not in
any manner detract from the honesty
and the
bona fides
of the
Third Respondent’s witnesses.
[15]
If one considers the totality of the evidence, one is left with the
impression that the Third Respondent’s version is
far more
believable and a reasonable trier of fact would have little
confidence in the likelihood of the Applicant’s case.
[16]
Similarly, the attack on consistency must also fail. Unlike the other
offenders, the Applicant was not prepared to come clean
and
accordingly no purpose would be served in trying to rehabilitate her.
[17]
For the above reasons, I am not satisfied that a proper case has been
made out for reviewing and setting aside the award of
the Second
Respondent.
[18]
Accordingly, I make the following order:
Order
1.
The application is
dismissed.
2.
There is no order as to
costs.
___________________________
Wayne
Hutchinson
Acting
Judge of the Labour Court
Appearances
For
the Applicant:
Mr. Ephraim Mphalele (Union Official)
For
the Third Respondent:
Adv. E.J Steenkamp
Instructed
by:
Jacobs Gonyora
[1]
Act
66 of 1995 (as amended).
[2]
The
South African Law of Evidence Zeffertt and Paizes 2
nd
Edition at p 48