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[2017] ZALCCT 8
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Khumalo v SALGBC and Others (C644/15) [2017] ZALCCT 8 (13 February 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of
interest to other judges
C
ase
no: C 644/15
In the
matter between:
Feziwe Victoria KHUMALO
Applicant
and
SALGBC
First respondent
Charles JACOBS N.O
CITY OF CAPE TOWN
Second
respondent
Third
respondent
Heard
:
8 February 2017
Delivered:
13 February 2017
SUMMARY:
Review – misconduct –
dishonesty and insubordination.
Award
reasonable. Dismissal fair. Application dismissed with costs.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The applicant, Ms Khumalo, was employed by
the City of Cape Town (the third respondent). The City dismissed her
after she was found
to have acted dishonestly and that she was
insubordinate. She did not attend her disciplinary hearing.
[2]
She
was dissatisfied. She referred an unfair dismissal dispute to the
South African Local Government Bargaining Council (the first
respondent). The arbitrator (the second respondent) found that the
dismissal was fair. The employee now seeks to have that award
reviewed and set aside in terms of s 145 of the LRA.
[1]
Background
facts
[3]
The City dismissed the employee because she
was absent from work on a number of occasions without permission and
then lied about
it. She was also on a final written warning for
insubordination, and at her disciplinary hearing it was found that
she had again
been insubordinate.
[4]
The allegations about her absence from work
stem from a number of occasions where she would report for work in
the morning, but
then disappear for long periods of time. The
following facts, usefully summarised by Mr
Ackermann
in his heads of argument, are common cause:
4.1
The employee had an access card which
recorded her movements entering and exiting the building as well as
her movements inside the
building.
4.2
A biometric system using her fingerprint
allowed access to the underground parking lot in the Civic Centre.
4.3
The employee drove a silver Honda CRV.
Video footage of such a vehicle entering and exiting the parking lot
was shown at the arbitration.
4.4
The employee admitted that she was the
person captured on a surveillance video of the parking area, having
first denied it and claiming
that it was a person with “similar
features”.
4.5
When entering the parking lot, the employee
was captured on video walking towards a silver Honda CRV on the date
in question when
the city alleges she left the workplace without
permission. The video footage shows the Honda being driven out of the
parking lot.
4.6
On one of the days in question, the video
footage shows the applicant arriving in the parking lot with her
child. At the arbitration,
she at first denied that it was a child
but later admitted that it was.
The
arbitration award
[5]
The arbitration was a lengthy one. It ran
over 16 days. The employee was represented by Mr Yisaka, a SAMWU
trade union official.
Throughout the proceedings, bar the first day.
The transcript comprises more than 400 pages. The award is a detailed
one, itself
comprising 59 pages.
[6]
The
arbitrator dealt with each of the allegations of absence from work,
having heard the evidence of Ms Viljoen, Ms Mamputa, Mr
Maxwell, Mr
Da Silva, Ms Jansen, Mr Phillips and Ms Harvey for the City; and that
of the employee and, on her behalf, Mr Hopa.
There were various
factual disputes. The arbitrator resolved those disputes in the
fashion set out by Nienaber JA in
Stellenbosch
Farmers’ Winery.
[2]
He considered the credibility of the witnesses, their reliability,
and the probabilities. He made the following factual findings
on a
balance of probabilities:
8
October 2010
[7]
The arbitrator concluded on a balance of
probabilities that the employee had been absent for about four hours
on this day. He came
to this conclusion based on the following facts:
7.1
The employee made no landline calls during
this period. She did not dispute the telephone records.
7.2
Ms Harvey, the City’s witness, saw
and recorded the employee leaving and returning during working hours.
7.3
The video footage showed a silver Honda CRV
entering the Civic Centre at 16:03.
7.4
The city’s “users tracking
access report” showed the employee leaving the building at
podium ground floor, Foyer
D, parking exit 2 at 11:00 and returning
at 16:07. The employee provided no evidence that it was not a
reliable system.
7.5
It was improbable that the employee spent a
lot of time waiting for someone else to swipe the doors so she could
enter without using
access card, as she testified at arbitration.
After all, she had her own access card.
7.6
The employee’s movements directly
corresponded with the movements as shown on the video footage
relating to her car. On a
balance of probabilities the silver Honda
CRV was her car and she was the person driving it. It is highly
improbable that another
employee used car exactly like hers, drove it
at those times, and looked exactly like the applicant.
17
November 2010
[8]
The allegation was that the employee left
her workstation for about two hours while she was getting paid for
working. The arbitrator
agrees, on a balance of probabilities, taking
into account that:
8.1
The facts supported Ms Harvey’s
evidence that the employee had asked her to cover for her while she
was “quickly going
to Clicks”;
8.2
The telephone records show that the
employee did not make any calls between 11:07 and 13:21. On the
probabilities, she was not in
her office.
7
October 2010
[9]
The allegation was that the employee left
her workstation for about two hours. The arbitrator found:
9.1
The user tracking report confirmed that the
employee swiped her access card at 10:25 exiting at Podium first
floor, Foyer D. A minute
later, the video footage shows her going to
the side of the parking area where her Honda is parked. Another
minute later, the Honda
leaves the parking area.
9.2
Ms Harvey testified that she did not see
the employee between 09:30 and 12:35.
9.3
The City’s telephone records show
that the employee made no phone calls between 10:25 and 12:30.
6
October 2010
[10]
The City alleged that the employee
pretended through the City’s clocking system that she had
worked until 17:18. In fact,
she left at 13:20 and only returned to
clock out at about 17:28. The arbitrator found on a balance of
probabilities that this was
correct:
10.1
The employee swiped her access card and
exited the building at 13:12. Her Honda only entered the parking area
again at 17:22. The
video footage then shows the employee walking
with her son in the direction of the access doors at Foyer D, first
floor.
10.2
Phillips testified that the employee’s
hair was different when she returned compared to when she left. On
the probabilities,
she had gone to get her hair done and to have
extensions added.
Insubordination
[11]
The allegation was that the employee was
insubordinate during the period 20 September – 15 December 2010
because she failed
to comply with the instructions issued by her
manager, Ms Carin Viljoen, requiring her to copy her (Viljoen) in on
all weekly meetings.
[12]
The instruction was to copy Viljoen in on
the employee’s Outlook calendar. The arbitrator accepted
Viljoen’s evidence.
It was consistent and clear, as opposed to
the contradictory evidence of the employee.
[13]
The employee was guilty of insubordination.
She had a previous written warning for gross insubordination, issued
on 3 June 2010.
On this incident of misconduct alone, misconduct was
the appropriate sanction, in line with the principle of corrective
discipline.
Procedural
fairness
[14]
The employee claimed that the disciplinary
process was procedurally unfair. After three postponements at her
request, the hearing
proceeded in her absence.
[15]
The
arbitrator referred to
Avril
Elizabeth Homes
[3]
in
considering this complaint. He considered the following elements of
procedural fairness:
15.1
An investigation was conducted by the City
into the alleged misconduct;
15.2
the employee was given an opportunity to
respond;
15.3
she was given a reasonable time in which to
do so;
15.4
she was given the opportunity to be
represented by a fellow employee or trade union official;
15.5
the City made a decision and conveyed it to
her.
[16]
The employee was notified of a disciplinary
hearing scheduled for 10 January 2011. It was postponed because she
was on leave. It
was reconvened on 31 January. Then it was postponed
to 24 February at her request, as she was booked off sick for
depression. On
24 February she was again booked off for depression.
Her representative, Pontac, attended. The chairperson advised all
parties
that the hearing would continue on 8 March. Neither Pontac
nor the employee arrived on that day. She says she sent a medical
certificate.
No-one received it. The arbitrator found that there was
no good reason to postpone again. The employee did not call Pontac as
a
witness at arbitration, despite having indicated that she would.
She sent an email with the medical certificate to Pontac after
the
hearing. He forwarded it to the City the day after the hearing had
been concluded. The procedure was fair.
Inconsistency
[17]
The employee argued that the City had acted
inconsistently by not dismissing another employee, Clifford Reid, who
had also left
the workplace during working hours to conduct private
business. Reid was accused of dishonest conduct and called to a
disciplinary
hearing. The chairperson found that the City had not
proven the misconduct related to dishonesty. There was no
inconsistency.
Sanction
[18]
In
considering whether dismissal was a fair sanction, the arbitrator
took into account the principles in
Sidumo.
[4]
He considered that the employee had worked for the City for 16 years
and that she had a final written warning for gross insubordination
that had been issued less than six months previously. Viljoen had
testified that the trust relationship had broken down. The employee
had neither performed her duties with good faith or with honesty. The
City’s disciplinary code identifies dishonesty as good
cause
for dismissal. The City’s time and attendance procedures
clearly states that, if an employee cannot work a full shift,
she
must obtain permission from her supervisor. The employee did not get
such permission. And even after being confronted by management
she
continued to defy management and persisted with her misconduct. She
showed no remorse, instead exhibiting “an aura of
arrogance”
in presenting her case. She unjustly accused the City of racism.
Dismissal was a fair sanction in the circumstances.
Grounds
of review
[19]
The
grounds of review raised by the applicant are more akin to appeal
than review. Despite having set out the trite law with regard
to the
reasonableness test for review as outlined in
Sidumo
[5]
and
Gold
Fields
[6]
,
Mr
Garces
submitted
that the arbitrator “should have found”:
19.1
that the employee’s version was
probable;
19.2
that the policy relating to timekeeping was
not known to all employees;
19.3
that the evidence relating to the video
footage, telephone calls and swipe cards was “fraught with
inconsistencies”;
19.4
that the video evidence relating to the
employee’s Honda CRV was based on assumptions;
19.5
that the evidence relating to absence from
work was based on assumptions;
19.6
that the allegation of insubordination “was
based on the assumption that the applicant had attended meetings
during the four
days in question and that applicant did not attend
the meetings, she could not have transgressed any workplace rule as
alleged”;
19.7
that the disciplinary hearing was
procedurally unfair and that it should have been postponed yet again.
[20]
Mr
Garces
also
submitted that the arbitration hearing was procedurally unfair; that
the arbitrator was biased; and that the arbitrator failed
to consider
material facts which rendered the outcome unreasonable.
Evaluation
[21]
in considering the review grounds, I shall
deal with them under the following broad rubrics:
21.1
procedural fairness;
21.2
bias;
21.3
credibility;
21.4
dishonesty;
21.5
insubordination; and
21.6
sanction.
Procedural
fairness
[22]
The allegation of procedural fairness at
the disciplinary hearing is quickly disposed of. The arbitrator
carefully considered the
evidence and the principles outlined in
Avril Elizabeth Home
.
The disciplinary hearing had been postponed three times. The
employee’s representative, Pontac, did not attend the hearing
on the final date. Neither did the employee. Neither of them
furnished the City with a medical certificate beforehand. It was
reasonable of the city to proceed with the hearing in her absence.
That conclusion by the arbitrator is not so unreasonable that
no
other arbitrator could have come to the same conclusion.
[23]
The further allegation is that the
arbitration itself was procedurally unfair. That is based on
allegation that the arbitrator “failed
to allow the applicant
to obtain proper representation”. The only basis for that is
that, on the first day, the arbitrator
would not allow one Freddie to
represent her. Freddie was not entitled to represent her in terms of
rule 25(1)(a)(ii) of the CCMA
rules. She was not a member of SAMWU.
Nevertheless, for the remaining 16 days of arbitration it was agreed
that she could be represented
by another SAMWU official, Mr Stanley
Yisaka. There was no prejudice to her.
Bias
[24]
Mr
Garces
did not seriously pursue the allegation of bias in his oral argument.
Nevertheless, it is contained in his heads of argument. The
only
basis for that argument is that the arbitrator “acted with
clear malice and bias towards the applicant by the admission
of
irrelevant evidence that was not relevant in the totality of the
evidence placed before him”. It is also argued that the
arbitrator did not find that the City’s actions “were
clearly intentional and prejudicial towards the applicant”.
And
generally, there is an allegation that the arbitrator did not come to
the employee’s assistance throughout the arbitration
process.
[25]
These
allegations are groundless. On a thorough reading of the transcript
of the arbitration, comprising more than 400 pages, one
is left with
the impression that it is the employee who was aggressive and
uncooperative during the arbitration; the arbitrator,
on the other
hand, acted with restraint and in an unbiased manner. No apprehension
of bias is discernible, applying the test in
President
of the RSA v South African Rugby Football Union
.
[7]
Credibility
[26]
The
arbitrator made a credibility finding against the employee. As Mr
Ackermann
pointed out, a court will be slow to interfere with credibility
findings made by a lower tribunal.
[8]
[27]
The
arbitrator carefully considered the credibility of the witnesses,
their reliability and the probabilities, applying the principles
set
out in
Stellenbosch
Farmers’ Winery
.
[9]
Having regard to the employee’s testimony and attitude at
arbitration, his conclusion was not unreasonable.
Dishonesty
[28]
The arbitrator’s findings with regard
to the allegations of dishonesty, set out above, were entirely
reasonable, given the
evidence before him. The facts were neatly
summarised by the City’s witness, Mr De Silva:
“
I
think what is of fact is that Ms Khumalo does own or owned a silver
Honda CRV at the time. That is a fact. What is a fact is that
the
parking bay where the camera coverage is, in which direction that
vehicle moves, is where Ms Khumalo, the one that Ms Khumalo
is being
allocated to. What is a fact is that the tracking of the movement
shows Ms Khumalo leaving at the time and shortly thereafter
the
vehicle leaves. What is a fact is that when the vehicle comes back,
it proceeds that very same way. What is a fact is that
the entry into
the building is again Ms Khumalo entering with her access card which
was issued to her. What is a fact is that Ms
Khumalo’s
colleagues have no knowledge of her whereabouts at the time.
So
while Ms Khumalo is correct in saying that she is not the only person
with a silver vehicle, the balance of probabilities certainly
say
that that silver Honda that leaves there is Ms Khumalo’s
vehicle.”
[29]
The evidence, taken holistically, was
clear. It need not be summarised again. The arbitrator did so in
detail. He came to an entirely
reasonable conclusion on a balance of
probabilities, given the facts and the evidence before him.
Insubordination
[30]
Ms Viljoen ordered the employee to inform
her – via the simple instrument of copying her in on her
Outlook calendar –
of the meetings she attended. Yet the
employee, who was already on a final written warning for
insubordination, wilfully defied
this instruction.
[31]
Viljoen’s evidence was clear and
mostly uncontested. She had twice told the employee that she was to
inform her (Viljoen)
personally if you could not be at work, and to
copy her in on any appointments or meetings. The employee did not do
so. Viljoen
also gave uncontested evidence of meetings which the
employee attended without informing Viljoen or copying her in. Those
included
the SALGA and portfolio committee meetings, the corporate
services portfolio committee meeting and the Khayalitsha workshop.
[32]
The arbitrator reasonably found that the
employee was guilty of insubordination.
Sanction
[33]
As the arbitrator pointed out, dismissal
would have been a fair sanction on either of the two instances of
misconduct, i.e. dishonesty
or insubordination. The employee was
guilty of both.
[34]
The arbitrator nevertheless carefully
considered the factors outlined in
Sidumo
before coming to the conclusion that dismissal was a fair sanction.
That was a reasonable conclusion.
Conclusion
[35]
The award is not reviewable. The arbitrator
carefully considered all the facts and the evidence. Applying the
principles set out
in
Stellenbosch
Farmers’ Winery
, he came to a
reasonable conclusion on a balance of probabilities. Having concluded
that, on the probabilities, the employee had
committed the
misconduct, he came to a reasonable conclusion that the dismissal was
fair, taking into account the factors outlined
in
Sidumo
.
[36]
With regard to costs, I take into account
that there is no longer any relationship between the parties; and
that the applicant pursued
a review application in circumstances
where the matter should have been finalised at the arbitration stage.
Both parties were represented
by counsel. There is no reason in law
or fairness why she should not pay the City’s costs, including
the costs of counsel.
Order
The
application for review is dismissed with costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Michael Garces
Instructed
by
Turner Ntshingana Kirsten.
THIRD
RESPONDENT: Lourens
Ackermann
Instructed
by
Bradley Conradie Halton Cheadle.
[1]
Labour Relations Act 66 of 1995
.
[2]
Stellenbosch Farmers Winery
Group Limited v Martell et cie
2013
(1) SA 11
(SCA) para 5.
[3]
Avril Elizabeth Home for
the Mentally Handicapped v CCMA
[2006]
9 BLLR 833 (LC).
[4]
Sidumo v Rustenberg
Platinum Mines Ltd
(2007)
28
ILJ
2405 (CC).
[5]
Above.
[6]
Gold Fields Mining South
Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
[2014] 1 BLLR 20 (LAC).
[7]
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 48.
[8]
Cf
NUM v CCMA
(2013)
34
ILJ
945 (LC) para 31.
[9]
Above para 5.