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[2018] ZALCJHB 57
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Lesedi v Commission for Conciliation, Mediation and Arbitration and Others (JR667/15) [2018] ZALCJHB 57 (15 February 2018)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, HELD IN JOHANNESBRUG
C
ase no: JR 667/15
In
the matter between:
MOETI JOHN LESEDI
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
COMMISSIONER
TIMOTHY BOYCE
N.O
First
Respondent
Second Respondent
DISCHEM PHARMACIES
Third Respondent
Heard
:
17 May 2017
Delivered
:
15 February 2018
Summary:
(Review – no evidence of improper motive –circumstantial
evidence)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is a review application. Judgment was finalised and was
due to be handed down on 30 May 2017, but inexplicably and
regrettably
this did not happen.
[2]
T
he only issue before the arbitrator
concerned the substantive fairness of the applicant’s
dismissal. The applicant had been
dismissed on two counts of
misconduct: (a) for gross dishonesty in misleading management in his
interview about his qualifications
and experience and (b) gross
negligence in completing and creating a prescription incorrectly.
[3]
On the first count, the arbitrator found
that on the employer’s own evidence the, employer accepted that
the certificate that
the applicant was a pharmacist’s assistant
was legitimate and that when he said he had experience as a
pharmacist assistant
in the public sector and community sector he had
not misled the employer (‘Dischem’).
[4]
The second charge related to the incorrect
entry of prescription information on to the computer system. The
first prescription was
for antibiotic syrup for a child but instead
was entered on the system as a tablet having a dosage with a daily
strength of more
than 1100 mg of antibiotic compared to the
prescribed amount of 750 mg in syrup form. Fortunately, the error was
detected by a
pharmacist before the medication was dispensed.
[5]
The second prescription was for five
different kinds of medication. In the case of Glamaryl, the dose
entered by the applicant was
three times the prescribed dose. In the
case of Carvetrend, the prescription was entered as three tablets
daily instead of one.
In the case of Calciferol, a dosage of one
tablet twice a week was recorded as ‘2 tablets 3 times a day
weekly’. In
respect of Calcicard, a dosage of one tablet a day
was captured as “one tablet 3 times a day once daily” and
an Autrin
dosage of one capsule a day was captured as “immediately
and then for cough once daily”, whereas the medication is an
iron supplement not used for coughing. The incorrect capturing of the
Calcicard medication could have caused blackouts in the patient.
[6]
There was testimony that the applicant had
been moved from working in a call centre to over the counter work
(OTC) because of the
errors he had made capturing scripts at the call
centre. The applicant claimed no knowledge of the reason he was
moved.
He had no explanation why he had
been moved to the OTC section and argued that the employer had
fabricated allegations to get rid
of him. He denied making mistakes
and although he admitted that entering the incorrect details could
pose serious health risks
for patients, he pointed out that his work
was checked by a pharmacist.
[7]
The applicant’s defence to the
incorrectly captured first prescription was that the certified copy
of the script he had generated
had been generated by someone entering
the computer system and using his name and details including his
password. The arbitrator
found that there was no explanation he could
advance why someone would have done that. In relation to the second
prescription,
the applicant denied that the employer had produced any
document showing that the certified copy was incorrect when he
captured
it on the system.
[8]
The arbitrator also noted that when the
applicant was asked why the dispensary manager, who had a number of
pharmacists to check
the employees work, would falsify the certified
copy of the second script he could not attribute any ill-motive to
him and conceded
that he did not have any problems with the manager.
[9]
In his evaluation of the evidence, the
arbitrator readily agreed on the basis of the respondent’s own
evidence that the applicant
was not guilty of the first charge but on
the second charge found that the evidence of the dispensary manager
was overwhelming
and substantiated the charge, whereas the
applicant’s claim that the evidence was fabricated to falsely
implicate him was
unimpressive. The arbitrator found that there was
no reason why an unknown person would have created an incorrect
certified copy
of the script with his name on it if the applicant had
captured the certified copy correctly.
[10]
Turning to the question of the appropriate
remedy the arbitrator felt that the misconduct did not warrant the
sanction of dismissal
because he had only worked for approximately
two weeks when he was suspended and no progressive discipline was
applied.
[11]
Nonetheless, the arbitrator believed that
reinstatement was not an appropriate remedy because it would have
been intolerable. The
primary reason for this conclusion was the fact
that the applicant stubbornly refused to acknowledge any wrongdoing
and moreover
he accused the employer of fabricating evidence and
making false allegations. The arbitrator concluded “These
claims by the
employee were patently false and I cannot see how sound
employment relationship could ever be expected to develop between an
employer
and employee with employee falsely accuses his or her
employer plotting to have him dismissed.”
[12]
In the circumstances, the arbitrator
awarded two months’ remuneration as compensation taking into
account his brief length
of service and the fact that he was still
employed as well as the fact that the employee had not produced any
evidence to show
that he had attempted to secure alternative
employment after his dismissal.
Grounds
of review and evaluation
[13]
Firstly, the applicant claims that the
arbitrator failed to appreciate that the employer had an improper
motive for bringing the
charges against him. Part of this contention
appears to be based on the belief that having failed to prove the
first charge, the
employer then sought to implicate him in another
form of misconduct. The respondent points out that it was only after
he was dismissed
that the applicant obtained the certificate proving
that he was registered to work as a pharmacy assistant in the
community sector.
There is nothing to gainsay Dischem’s version
that the certificate only came to light after the applicant was
dismissed.
Therefore, at the time of his dismissal, it was not
unreasonable of Dischem to believe that he did not have the necessary
qualification.
Further, the second charge relating to the
inaccurately captured scripts was not a charge brought subsequent to
the failure to
prove the first charge but was brought simultaneously
with it and was the other reason he had been dismissed, so the
argument that
it was launched as an attempt to bolster Dischem’s
case against the applicant does not make sense.
[14]
Apart from the fact that he could not
identify who would have a motive to dismiss him, the only other
suggestion the applicant could
make in support of his claim Dischem’s
motives were improper was the allegation that it was because he had
expressed an interest
in joining a union. However, that is a claim
which he abandoned for the purpose of the arbitration, and the
arbitrator rightly
cautioned him about raising it in the course of
his testimony. This was because if he wished to rely on that evidence
to suggest
bad faith, it meant his case was no longer a case based on
unfair dismissal for misconduct but an allegedly automatically unfair
one and accordingly the arbitrator would not have been able to hear
his case. If the circumstantial evidence of the certified copies
of
the scripts is considered, there was even less reason for the
arbitrator to have believed that the second charge was simply
a
desperate attempt to implicate the applicant in some misconduct.
[15]
In a related ground of review, the
applicant claims that the arbitrator failed to capture his evidence
that the motive for charging
him was a result of him having to ask
about whether the institution he worked at had a union and that he
was targeted because of
that. It is true that the arbitrator did not
mention this evidence in the arbitration but that is because when it
was raised by
the applicants representative, the arbitrator asked
whether the applicant intended to pursue a case based on the reason
for the
dismissal being related to his wish to join a union but the
applicant’s representative was adamant that was not his case.
Accordingly, there is nothing untoward about the arbitrator not
mentioning it in his award, because the applicant was not contesting
the fairness of his dismissal on that basis.
[16]
The applicant also contends that the
evidence of the Call Centre Dispensary Manager was hearsay. A related
point raised by him is
that the manager’s evidence could not be
relied on as she did not authorise the first prescription and Dischem
should have
called the pharmacist who checked the prescription as a
witness. It is true that Dischem did not call the pharmacist who had
vetted
the incorrect scripts to testify but the documentary evidence
itself pointed to the applicant as the originator of the inaccurately
captured details, based on his initials being on the bar-coded stamps
appearing on both doctors’ prescriptions. It was sufficient
to
tender the evidence of these documents and the associated computer
generated invoices, which could only have been created by
a person
using his login details and password, to shift the evidentiary burden
to him to lead evidence in rebuttal.
[17]
In an associated ground of review, the
applicant argues that the arbitrator could not have found that the
evidence of the manager
was ‘overwhelming’ if it was not
corroborated. Dischem retorts that the corroboration the material was
found in the
documentary evidence relied on which the applicant could
not effectively refute. The applicant made much of the fact that the
computer
generated invoice issued in respect of second prescription
was not initialed by himself and the pharmacist unlike the other
one.
He argued that this supported his contention that it was
manufactured purely for the purposes of the case. The respondent
points
out that the applicant conceded that for this document to be
generated someone would have to have used his username and password
and he was unable to suggest who might have done this or even who
might have had a motive to do so.
[18]
During argument
Mr
Kubayi
argued vigorously that it was
evident that the computer generated invoice for the first
prescription which appears at page 31 of
the pleadings bundle has a
bar-coded sticker which was not initialed by the applicant. The same
bar-coded sticker for that script
on the copy of the doctor’s
prescription however was initialed by the applicant, which meant he
captured the correct prescription,
but the computer generated invoice
had not been generated by him because it lacked an initialed sticker.
The evident difficulty
with this argument was that the initialed
sticker on the doctor’s prescription was the same as the
sticker on the computer
generated invoice. Both the sticker on the
prescription and that on the invoice contained the price appearing on
the invoice, which
means even if the applicant only initialed the
sticker on the doctor’s prescription, that sticker must in all
probability
have been generated when the invoice was generated. The
prospect that the sticker he initialed was for a correctly generated
invoice
but had exactly the same price as the amount of the incorrect
generated invoice script is so remote that it renders the applicant’s
defence based on bad faith on the part of Dischem wholly implausible.
Conclusion
[19]
Considering
the analysis above, the crux of
the applicant’s case is that, the arbitrator incorrectly
evaluated the evidence and ignored
or failed to appreciate that the
evidence relating to the inaccurately captured scripts was
fabricated. The arbitrator was required
to consider this defence on
the probabilities and he discounted it in the light of the evidence
of the certified copies of the
scripts, which the applicant conceded
could only have been generated by someone locked onto the system
using his details. In the
absence of evidence of any reason why the
dispensary manager would have fabricated such evidence, it cannot be
said that the inferences
the arbitrator drew were unreasonable ones.
In so far as the applicant believes that there was an improper motive
for his dismissal,
he elected to submit his case to arbitration on
the basis that he was not guilty of the misconduct. In so doing, he
chose to abandon
his alternative claim of an automatically unfair
dismissal which he could have referred to the Labour Court. In the
absence of
advancing any other motive, it is hardly surprising that
the arbitrator did not find this defence plausible.
[20]
In the circumstances, I am not persuaded that the
arbitrator committed reviewable irregularities or reached conclusions
no reasonable
arbitrator could have reached in arriving at his
findings based on the evidence before him.
Order
[1]
The review application is dismissed.
[2]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
N
E Kubayi of Noveni Eddy
Kubayi
Inc.
THIRD
RESPONDENT:
N
Preston of Cliffe Dekker
Hofmeyr
Inc