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[2017] ZALCJHB 420
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South African Post Office (Soc) Limited v Mpfumba and Others (JR2173/13) [2017] ZALCJHB 420 (17 November 2017)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 2173/13
In
the matter between
:
SOUTH
AFRICAN POST OFFICE (SOC) LIMITED
Applicant
and
AZWINDINI
JAMES
MPFUMBA
First Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
SILAS
RAMUSHOWANA
N.O
Third Respondent
Heard:
14 March 2017
Delivered:
17 November 2017
Summary:
When the arbitration award of a commissioner of the CCMA is not
connected to the evidence tendered at arbitration, the
award is
rendered unreasonable and therefore reviewable.
JUDGMENT
LALLIE,
J:
Introduction
[1]
The applicant seeks an order reviewing, setting aside and
substituting the arbitration award of the third respondent who will
be referred to as the commissioner in this judgment. The application
is opposed by the first respondent. Subsequent to his dismissal
for
misconduct, the first respondent referred an unfair dismissal dispute
to the second respondent which will be referred to as
the Commission
for Conciliation, Mediation and Arbitration (CCMA) in this judgment.
The first respondent’s dispute was arbitrated
by the
commissioner who issued an award in which he found his dismissal
substantively unfair and ordered the applicant to reinstate
him. It
is that award which the applicant seeks this Court to review and set
aside. The applicant filed this review application
late and applied
for condonation. In the answering affidavit, the first respondent
opposed the condonation application. I have
considered it and noted
that the extent of the delay is not excessive and the applicant
proffered reasonable explanation for it.
It showed prospects of
success in the review application and I am, for those reasons,
satisfied that the applicant has shown good
cause. Condonation should
therefore be granted.
Factual background
[2]
The first respondent was employed by the applicant in 1982 as a
teller until he was dismissed for fraud on 8 March 2013 while
posted
at the Sibasa Post Office which will be referred to as the post
office in this judgment. The facts of this matter are that
at about
10h00 on 9 February 2012, while the first respondent was performing
his duties, he served a customer who had visited the
post office to
claim his lottery prize money in the amount of R8 340.00. The
customer gave the first respondent the winning ticket
and the first
respondent deposited, at the customer’s request, the amount of
R8 340.00 into the customer’s Mzansi account.
The same amount
was paid out for the second time on the same day. The applicant’s
version was that after paying the customer,
the first respondent made
a payment of the same amount without supporting documents. He
subsequently signed an acknowledgement
of debt. The first
respondent’s version was that he paid the R8 340.00 into the
customer’s Mzansi account. Just before
taking his lunch break
and handing over to his colleague who was relieving him, he cleared
the amount and made a payment at the
Post link without supporting
documents.
The award
[3]
Giving reasons for his decision, the commissioner recorded the
definition of fraud provided in the applicant’s disciplinary
code. It is “any wilful and unlawful misrepresentation by any
employee in whatever form that will have the effect of
damaging/harming
or potentially damaging/harming the company”.
He noted that in principle, both parties were in agreement that there
was a
second transaction that the first respondent performed. The
applicant referred to the transaction as fraud but the first
respondent
saw it as clearing the system. The commissioner noted the
applicant’s evidence that the first respondent pleaded guilty
by
signing an acknowledgement of debt. He however found no evidence
proving that the first respondent gained any money from the
transaction.
He made a finding that the respondent led no evidence
proving that it suffered loss as a result of the first respondent’s
actions. A further finding was that the first respondent did not
dispute making the second transaction he performed with the ticket
which was claimed earlier but claimed that he did not intend
committing fraud. He denied that the acknowledgement of debt was
tantamount to a plea of guilty. The commissioner took into account
the first respondent’s long service and his clean disciplinary
record. He noted that fraud is a very serious offence which cannot be
tolerated in the workplace and in the country. He accepted
that the
first respondent was wrong in making the payment but found that there
was no intention on his part. He found that the
gravity of the
misconduct did not justify dismissal and concluded that the dismissal
was substantively unfair but procedurally
fair. He ordered the
applicant to reinstate the first respondent.
Grounds
for review
[4]
The applicant submitted that the commissioner committed misconduct in
relation to his duties as an arbitrator. His decision
is not
rationally connected to the evidence tendered at the arbitration and
he failed to apply his mind to the evidence before
him. His decision
was grossly irregular. He misconstrued the evidence before him and
reached an unreasonable decision. He erred
in downplaying the gravity
of fraud and finding the sanction of dismissal harsh. He further
erred in concluding that the applicant
did not suffer financial loss
in the face of evidence that the applicant suffered loss in the
amount of R8 340.00 and an acknowledgement
of debt by the first
respondent. The applicant also submitted that the commissioner
further erred in attaching a lot of weight
to the first respondent’s
length of service and clean disciplinary record. The first respondent
opposed the application mainly
on the grounds that the award
constitutes a decision that a reasonable decision-maker could arrive
at on the evidentiary material
before the commissioner. He submitted
that the grounds the applicant sought to rely on are not supported by
the record. The commissioner
so went the averment, correctly
concluded that no evidence was placed before him to prove that the
first respondent committed fraud.
The applicant failed to discharge
the onus of proving the substantive fairness of the first
respondent’s dismissal and the
appropriateness of the sanction
of dismissal. He expressed the view that the applicant disclosed no
grounds for this Court to interfere
with the commissioner’s
decision.
Test
for review
[5]
The applicant's case is that the award is defective as envisaged in
section 145 (2) of the LRA. The test for review is expressed
in the
following words in
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[1]
"That test involves the reviewing
court examining the merits of the case "in the round" by
determining whether, in
the light of the issue raised by the dispute
under arbitration, the outcome reached by the arbitrator was not one
that could reasonably
be reached on the evidence and other material
properly before the arbitrator".
It
is further elucidated as follows in
Head
of the
Department
of Education v Mofokeng and others
[2]
"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 to enquiry. 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 enquiry,
the delimitation of the issues to be
determined and the ultimate outcome."
[6]
The applicant submitted that the commissioner misconceived the
dispute before him. A commissioner misconceives a dispute if
in
determining the fairness of the dismissal of an employee, the
commissioner conducts the wrong enquiry, alternatively, the
commissioner
conducts the correct enquiry in the wrong manner. The
commissioner had to determine whether the applicant’s conduct
of dismissing
the first respondent for the reason he was dismissed
for, was fair. When the evidence tendered at arbitration is
considered in
its totality it reflects that the commissioner accepted
that the first respondent paid out the amount of R8 340.00 for the
same
lottery ticket twice. Firstly, in the presence of the customer
and also a few hours later after the customer had left the post
office. It is also common cause that the first respondent made the
second payment without supporting documents. He later signed
an
acknowledgement of debt and made an undertaking to repay the second
payment. In conducting the enquiry to determine whether
the first
respondent made himself guilty of fraud, the commissioner considered
whether the applicant suffered any loss and whether
the first
respondent gained from the transaction.
[7]
The commissioner found that no evidence was tendered to prove that
the applicant suffered financial loss and that the first
respondent
gained money as a result of the first respondent’s conduct.
This finding is factually incorrect because evidence
was led on
behalf of the applicant to the effect that it suffered financial loss
in the amount of R8 340.00 because the post office
paid twice for the
same lottery ticket. The second payment was effected without
supporting documents and was unjustified. The commissioner
conducted
the enquiry in the wrong manner. Firstly, by determining whether
there was any financial loss or gain. The definition
of fraud he
relied on did not require the applicant’s conduct to result in
actual loss and actual benefit. It refers to damage,
harm and
potential damage or potential harm. Secondly, he concluded that the
applicant failed to prove that it suffered financial
loss as a result
of the first respondent’s conduct when such evidence was led.
The applicant was harmed by the first respondent’s
conduct. The
commissioner failed to state expressly whether he found that the
first respondent had made himself guilty of the act
of misconduct
which led to his dismissal. He conceded that fraud constitutes
serious misconduct which should not be tolerated at
the workplace. He
issued the first respondent with a final written warning valid for 12
months. A final written warning is a sanction.
It should be preceded
by a finding of guilt. The finding that the first respondent did not
commit fraud is inconsistent with the
issuing of the final written
warning because punishment cannot be meted out to an innocent
employee. The commissioner committed
gross irregularities in making
the above errors and contradictory findings. The irregularities led
the commissioner to reach an
unreasonable decision.
[8]
The applicant sought an order substituting the arbitration award.
Evidence which is mostly common cause proves that the first
respondent made himself guilty of fraud. When his misconduct was
discovered he made an acknowledgement of debt. I have no reason
to
reject the applicant’s evidence that the misconduct led to the
breakdown of the trust relationship between the parties.
The record
shows that the first respondent’s misconduct was deliberate and
he attempted to exonerate himself dishonestly
when giving an
explanation for making two payments for the same lottery ticket. That
is not the conduct of an employee who expresses
remorse for his or
her misconduct. The gravity of the fraud he committed outweighs his
length of service and clean disciplinary
record by far. The rule
against fraud at the applicant is reasonable as some of its employees
handle substantial amounts of money.
The first respondent’s
conduct caused harm to the applicant to the effect that the applicant
suffered financial loss in the
amount of R8340.00. The first
respondent is responsible for the hardship he is suffering as a
result of his dismissal. The sanction
of dismissal is, in the
circumstances, appropriate for the misconduct of fraud which the
first respondent committed.
Order
[9]
In the premises the following order is made:
1.
The late filing of the review application is condoned.
2.
The arbitration award issued by the third respondent under case
number LP 2110-13
and dated 28 June 2013 is reviewed and set aside
and substituted with the following:
2.1
The dismissal of the first respondent was substantively fair.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant:
Advocate J Malane
Instructed by:
Nozuko Nxusani Incorporated
For the First Respondent:
Mr
A Ramaano of Anton Ramaano Inc.
[1]
[2013] 11 BLLR1074 (SCA) at para 12:
[2]
[2015] 1 BLLR 50
(LAC) at para
33: