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[2018] ZALCJHB 149
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National Education Health and Allied Workers Union obo Mogorosi v Commission for Conciliation, Mediation and Arbitration and Others (JR1436/15) [2018] ZALCJHB 149 (18 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1436/15
In
the matter between:
NATIONAL EDUCATION HEALTH AND
ALLIED
WORKERS UNION o.b.o. MICHAEL
MOGOROSI
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
First Respondent
COMMISSIONER WILLEM KOEKEMOER
N.O.
Second Respondent
ROAD TRAFFIC MANAGEMENT
CORPORATION
Third Respondent
Heard:
8 February 2017
Delivered:
18 April 2018
JUDGMENT
TLHOTLHALEMAJE, J
Introduction
[1]
The applicant, the National Education and Allied Workers Union
(‘NEHAWU’) approached this Court on behalf of its
member
Mr Michael Mogorosi (‘Mogorosi’) to review and set aside
the arbitration award issued by Commissioner W. Koekemoer
(‘Commissioner’). The Commissioner in his arbitration
award found that the dismissal of Mogorosi by the third respondent
Road Traffic Management Corporation (‘RTMC’) on the
grounds of misconduct was substantively and procedurally fair.
[2]
RTMC opposed the review application, and at the commencement of these
proceedings, it was submitted on its behalf that other
than the
merits of the review application, there were other preliminary points
that were raised by it in its papers which needed
to be dealt with
prior to the merits of the review application.
[3]
It was maintained on behalf of the applicants that all preliminary
issues were heard and disposed of during the pre-enrolment
proceedings before van Niekerk J on 10 August 2016. To the extent
that there was a dispute in this regard, I had then directed
the
parties to file the record of the pre-enrolment proceedings to verify
whether the preliminary issues still needed to be determined.
[4]
Upon a reading of the transcribed record of proceedings before Van
Niekerk J, it became apparent that indeed all the preliminary
points
had been dealt with at the pre-enrolment hearing, and there was
clearly no merit in RTMC’s contentions that those
issues were
still outstanding.
Background
[5]
RTMC is a state-owned entity
established in terms of the Road Traffic Management Act (RTMA).
[1]
It is a schedule 3A entity in terms of the Public Finance Management
Act (PFMA)
[2]
,
and is thus classified as a ‘government department’. Its
objective is to
inter alia
effect the pooling of road traffic powers of the Minister and every
provincial MEC and the resources of national and provincial
spheres
of government responsible for road traffic management, in support of
enhanced co-operative and co-ordinated road traffic
strategic
planning, regulation, facilitation and law enforcement.
[3]
It commenced its operations in April 2005.
[6]
Mogorosi was prior to his dismissal employed as the Deputy Chief
Financial Officer. It was common cause that from time to time,
Mogorosi would act in the position of Chief Financial Officer. The
allegations leading to Mogorosi’s dismissal are that during
his
employment, he had on several occasions contravened the provisions of
RTMC’s Supply Chain Management Policy; the provisions
of the
PMFA; section 217 of the Constitution of the Republic, and those of
the RTMA.
[7]
On 14 July 2014, the Chief Executive Officer (CEO) of RTMC
advised Mogorosi of an intention to pursue charges of misconduct
against him. He was invited to make representations on why he ought
not to be placed on precautionary suspension pending investigations
into his conduct. He was further invited to make representations in
respect of the contemplated charges of misconduct.
[8]
Despite his response and undertakings on 15 July 2014 that
he posed no threats to any investigations, Mogorosi was
placed on
precautionary suspension with full pay on 17 July 2014. A
notice to attend a disciplinary enquiry was issued
on 28 July 2014,
advising Mogorosi that the disciplinary hearing was to be scheduled
for 5 and 7 August 2014.
[9]
The charges of misconduct preferred against Mogorosi were as follows:
“
Charge
1: (Gross Negligence)
On
the 27 February 2017 and at your workplace, you did wrongly
act with gross negligence in that you did cancel an order
of, but
failed and/or ignored to issue or cause to be issued a letter of
cancellation to a supplier named, Readmore Brandtrend
CC
(“Brandtrend”), which had been issued with a purchase
(order No: PO 1359), whist knowing and/or you would reasonably
by
virtue of your position, have been expected to know such failure
would possible have placed the RTMC at a financial and/or legal
risk.
Your conduct thus fell within the misconduct contemplated in item 1
of category 2 of Annexure B of the Code.
Charge
2: (failure to observe the Corporation’s rule and regulations)
On
or about 5 March 2014 and at your workplace, you did
wrongfully and without prior written motivation to the Chief
Executive Officer of the RTMC, and in contravention of clause 6.2 of
the RTMC policy on Supply Chain Management, 2012, cancel the
purchase
order (PO 1359) issued to Brandtrend and issued a new order to
another supplier namely, CF Mathabatha Consulting and General
Services CC (“CF Mathabatha”).
First
alternative to Charge 2 (Contravention of
Public Finance Management
Act 1 of 1999
)
On
or about 05 March 2014 and at your workplace, you did
contravene the provisions of
section 57
of the PFMA by issuing a new
order for CF Mathabatha without ensuring that effective, efficient
and transparent procurement measures
were implemented during the
procurement of 1000 notebooks under RFQ 02599.
Charge
3: (Disruptive and insolent behaviour)
In
that during 2013 and at/or near the premises of the employer, you did
contravene the Disciplinary Code and Procedure of the employer,
in
that you unlawfully and intentionally obstructed alternatively,
attempted to obstruct a forensic investigation conducted by
Nkonki,
into transactions on nine bank accounts of RTMC by not co-operating
with Nkonki investigation team and/or instigating other
employees and
witnesses not [to] co-operate with the investigation. “
[10] In a letter dated 14 August 2014,
additional charges to include:
ADDITIONAL
CHARGE: 1A
On
or about 5 March 2014 and at your workplace, you did
wrongfully and without prior written motivation to the Chief
Executive Officer of the RTMC, and in contravention of clause 6.2 of
the RTMC policy on Supply Chain Management, 2012, cancelled
the
purchase order (PO:02654) issued to Sekati Marketing and Business
Development Consultants CC and issued a new order to another
supplier
namely, Shereno Printers CC (“Shereno”).
ADDITIONAL
CHARGE: 5
On
or about 22 October 2013 and at your workplace, you did
wrongfully and without just cause, fall to compile, sign-off
a draft
declaration of and request for retention of surplus of funds
totalling R269 292 865 (
Two Hundred and Ninety-Six
Million Two Hundred Ninety-Two Thousand and Eight Hundred and
Sixty-Five Rand
) for the financial year 2012/2013, and you failed
and/ [or] ignored to deliver the said draft, and/or a written
memorandum in respect
thereof for the approval of the CEO to enable
him to comply with his obligation as contemplated in terms of section
24(3) of the
RTMC Act, 1999. Consequently, the National Treasury
registered an irregularity of the expenditure emanating from the
undeclared
retained surplus. You have contravened the provisions of
the RTMC and therefore liable to be found guilty of gross negligence.
[11]
At the end of the disciplinary proceedings, Mogorosi was found guilty
of charges 1, 2, 3 and 5, and a sanction of dismissal
was imposed.
Aggrieved with the outcome and sanction, Mogorosi referred an unfair
dismissal dispute to the first respondent, the
Commission for
Conciliation Mediation and Arbitration (‘CCMA’). Attempts
at conciliation were unsuccessful, and the
dispute was referred for
arbitration.
Arbitration proceedings and the
award:
[12]
At the arbitration proceedings, Mogorosi challenged both the
procedural and substantive fairness of his dismissal. The challenge
on procedural fairness pertained to the alleged failure by the
chairperson to give him an opportunity to plead in mitigation. RTMC
led the evidence of no less than six witnesses.
[13]
The first of the witnesses was Ms Melanie Fryer (‘Fryer’)
who was previously appointed as the Senior Manager: Supply
Chain
Management and who at the time of the arbitration proceedings was the
Divisional Head: Training. Her evidence in respect
of the charges
against Mogorosi centred around the procurement processes within RTMC
and its statutory obligations. In this regard,
she testified that;
13.1.
The Chief Financial Officer (CFO) was responsible for the reporting
of surplus funds for
a specific financial year to the National
Treasury. Moreover, the PFMA and the Regulations specifically
assigned that function
to the CFO. Surplus funds could not be rolled
over to the next financial year without the express permission of
National Treasury.
13.2.
RTMC had in July 2014, received correspondence from National Treasury
re-emphasising that
it could not budget for a deficit or accumulate
surpluses unless there was prior written approval. National Treasury
had also pointed
out that in the audited financial statement of
2012/2013, RTMC had recorded a cash surplus of R296.3 million with an
accumulated
surplus of R418.4 million as at 31 March 2013. It was
pointed out that National Treasury had not as at that date, received
any
requests from RTMA for approval to retain the surplus.
13.3.
Fryer testified that if a department for whatever reason required to
utilise funds classified
as a surplus, there was an obligation to
request and obtain permission from the National Treasury. Failure to
obtain such permission
had serious consequences as that would be
viewed as non-compliance with the PFMA and Treasury Regulations. If
the National Treasury
withheld permission, any subsequent utilisation
of the surplus funds would be regarded as unauthorised expenditure.
13.4.
In respect of any tender process, it was a requirement that the
cheapest tender should
be accepted, and where this was not the case
or there was a need for deviation, both the CEO and CFO in terms of
RTMC policies
and PFMA regulations were required to sign off that
deviation, explaining the reasons there was a need for the deviation.
13.5.
Furthermore, in the event of a purchase order having been issued, and
where the appointed
services provider was unable to deliver a service
for whatever reason, that purchase order was to be withdrawn to avoid
any potential
risk to RTMC. The CEO and the CFO were obliged to reach
an agreement on the withdrawal of the purchase order and once
withdrawn,
the procurement process was to be re-initiated afresh.
13.6.
If the RTMC failed to cancel the order, this could result in a real
risk in that, another
officer could unknowingly pay the service
provider as per the purchase order, which ought to have been
cancelled. The service provider
might as well issue an invoice in its
favour if the cancellation is not effected. In simple terms it may
lead to a double payment.
13.7.
RTMC is not at liberty to re-award the purchase order to the “second
best”
service provider because of the cancellation and/or
withdrawal. The CEO was vested with the authority for approval for
the re-advertisement
of the bid or for RTMC to source further
quotations for the service or product being sought.
[14]
Mr Tebogo Kgwedi (Kgwedi), the Supply Chain Manager’s testimony
centred around the tender process from the submission
of bid
documents; the consideration of the bid and its supporting documents;
the qualification and/or disqualification of bidders
and the
selection of the preferred bidder. He testified that the CFO was the
ultimate decision maker in respect of selection of
the preferred
bidder. Once a preferred bidder was approved, the RTMC would then
formulate a purchase order for the preferred bidder,
who would in
turn be expected to deliver the goods or services in terms of that
purchase order.
[15]
In regard to the first allegation of misconduct against Mogorosi, an
invitation was issued to bidders to deliver notebooks.
Amongst the
bidders were entities known as Cancri, CF Mathabatha, and Readmate
who had submitted their respective quotations together
with all the
necessary relevant documentation. Once verifications were done, the
matter was left to the CFO for approval, and once
approval was
obtained, the successful bidder was to be issued with a purchase
order.
[16]
Readmate was chosen as a successful bidder and a purchase order was
then issued to it. At some point, Readmate indicated that
it could
not deliver the notebooks required, and the purchase order initially
issued to it was then cancelled. Readmate had also
sent an e-mail
confirming that it could not supply the notebooks. CF Mathabatha,
which had amongst the three bidders submitted
the highest quotation
was then awarded the contract, and it was issued with a purchase
order. This according to Kgwedi was done
without re-advertising for
the tender, or Readmate not being informed of the cancelation of the
purchase order previously issued
to it. A Ms. Annie Seroka was
responsible for ensuring that Readmate was informed of the
cancelation of the purchase order but
had not. This entire process
was however to be overseen by Mogorosi as the then acting CFO.
[17]
Under cross-examination, Kgwedi conceded that if a product or service
required by RTMC was below a threshold of R500 000.00,
the best
supply chain process would simply be to call for a minimum of three
quotations, and that CF Mathabatha was one of the
suppliers that were
called for quotations amongst five. He conceded that this was in
compliance with clause 6.8 of the Supply Chain
Management Policy. In
this regard, Fryer had also confirmed that there was nothing that
prevented RTCM from choosing the second
highest bidder for services
in circumstances where the preferred bidder was unable to deliver the
service or product required.
In respect of the same bid, Kgwedi
further conceded that Readmate was unable to supply the goods
required whilst Cancri did not
have the notebooks required. This left
CF Mathabatha as the only supplier able to meet the demand.
[18]
A further invitation for tender was issued for the supply of NTP
Notebooks. Several quotations were received from bidders including
Sekati Marketing (R8 000.00), Shereno Printers (R53 000.00),
Rampolokeng Trading Enterprises (59 300.00) and others. Sekati with
the lowest quotation and more scoring would ordinarily have been the
successful bidder. A purchase order was nonetheless issued
and signed
off by Mogorosi to Shereno Printers which had the second highest
quotation
[19]
Ms Moolman, RTMC’s current CFO’s testimony was as
follows:
At the time of the allegations against
Mogorosi, she was the Senior Manager, Revenue. At some point she had
received an instruction
from Mogorosi, who was then the acting CFO to
draft a letter declaring RTMC’s surplus revenue. She had
drafted the letter
with some blanks to be filled in by him. Mogorosi
was to thereafter forward the letter to the CEO, who would have in
turn submitted
it to National Treasury.
[20]
Upon receipt of a letter of July 2014 from National Treasury in
relation to RTCM’s surplus, Moolman was of the view that
the
letter she had drafted and sent to Mogorosi never went through to the
CEO or National Treasury, and any funds utilised from
the surplus
fund would thus have constituted irregular expenditure. Even if the
funds had not been utilised, there was still an
obligation to declare
them in terms of the provisions of section 53 of the PMFA.
[21]
Under cross-examination, Moolman conceded that because of the
financial statements presented to the Auditor General on or about
31
July 2013, that office was made aware of the surplus in RTMC, and
that in any event, any surplus belonged to RTMC and its shareholders,
including the Minister of Transport. Under re-examination, she
contended that there was still a duty to report and declare that
surplus. She confirmed that the National Treasury had registered an
irregular expenditure by RTMC, even though no irregular expenditure
was registered for 2012/2013 and 2013/2014 financial year.
[22]
Gilberto Martins, is the current RTMC’s COO. At the time of
events leading to Mogorosi’s disciplinary enquiry,
he was
appointed as acting CEO around August 2013. He confirmed the position
in regard to surplus funds and the need to inform
National Treasury
of those amounts. From the letter received from National Treasury,
RTMC had not reported or declared its surplus
funds. He contended
that even if National Treasury was somehow aware of the surplus,
there was still a need to declare or report
it as it was to be
audited.
[23]
Martins further testified in regard to allegations that Mogorosi had
made misrepresentations when applying for a position in
the RTMC. He
testified that Mogorosi had not indicated in his
curriculum vitae
that he was dismissed for financial misconduct from his position as
CFO in the Department of Education in Mpumalanga Province,
and had
misrepresented that he had resigned instead. According to Martins,
Mogorosi was employed by the previous CEO, Collins Letswalo.
When he
(Martins) took over as COO, he was unaware of the circumstances under
which Mogorosi was employed and had simply confirmed
his appointment
based on a letter purportedly signed by Letswalo. Only Mogorosi had a
copy of the letter of appointment. He testified
that had he known of
that misrepresentation, he would not have confirmed his appointment,
and he was of the view that an employment
relationship with Mogorosi
had irretrievably broken down.
[24]
Under cross-examination, Martins conceded that he was unaware of the
events that transpired at the CCMA after Mogorosi had
referred a
dispute following his dismissal by the Department of Education in
Mpumalanga.
[25]
Tamara Mtimkulu, a Senior Consultant in Fraud Risk Management
employed by Nkonki Incorporated testified in relation to
investigations
into nine bank accounts of RTMC and allegations of a
fraudulent invoice and stop order that was issued in the name of
RTMC. Her
evidence was that Mogorosi interrupted or hampered those
investigations by instigating other employees not to cooperate in
respect
of obtaining a court order needed to assist with the
investigations. The then CFO, Portia Mngomezulu had issued specific
instructions
to all staff members to cooperate fully with the
investigations. When Mogorosi acted as CFO upon Mngomezulu taking
maternity leave,
those investigations stalled as new rules were put
in place in terms of securing certain files necessary for the
investigation
or setting up meetings with staff members to be
interviewed. The delays meant that investigations were concluded
without some information
having been obtained. A court application
could not be pursued as certain documents pertaining to a variation
were not signed.
Mtimkulu also attributed the abrupt termination of
the investigations to Mogorosi.
[26]
Under cross-examination, Mtimkulu conceded that Mogorosi had at some
point in her presence, telephonically informed employees
to cooperate
fully with the investigation. She nonetheless contended that he had
instigated another employee, one Refilwe, who
was the then acting CEO
not to cooperate in respect of the signing of court papers. She
further complained that the final report
of the investigation was
submitted to the RTMC but that the then CEO (Mngomezulu) had not
signed it as she was implicated in it.
[27]
Mogorosi’s testimony was as follows;
27.1
He was appointed as Deputy CFO in February 2013 when the then
CEO was
Collins Letswalo. In respect of the first charge pertaining to the
cancellation of the Readmate purchase order and the
failure to notify
it of the cancellation, he testified that three quotations were
received in respect of services under R500 000.00.
The preferred
supplier could not deliver, and the policy allowed one to go for the
next highest bidder, and there was nothing in
the policy that
compelled RTMC to re-advertise the tender.
27.2
The purchase order initially issued to Readmate was cancelled
by him.
Readmate had also sent an e-mail to Annie Seroka and telephonically
confirmed that it was unable to deliver what was requested,
whilst
Cancri could also not meet the demand. He disputed that there was any
need for him as acting CFO at the time to inform Readmate
of the
cancellation under the circumstances.
27.3
In regard to charge two which related to awarding a contract
to CF
Mathabatha without ensuring that effective, efficient and transparent
procurement measures were implemented, he denied the
allegations,
contending that the process adopted was above board as five requests
for a proposal had already gone out. When the
two other bidders could
not meet the supply requirements, CF Mathabatha had to be appointed.
27.4
Mogorosi denied any allegations pertaining to the third charge
that
he did not cooperate with the Nkonki investigations or that he had
instigated other employees not to cooperate with those
investigations. His main concern with the investigations was that its
costs had escalated and despite the payment of R490.000.00,
little
progress had been made. When Nkonki sought to carry out further
investigations at escalated costs, this would have entailed
a
deviation in an additional amount of R1.4 million, and he had raised
his concerns.
27.5
According to Mogorosi, the investigators sought to expand
the
investigations by inspecting telephone records of staff members, and
this was not within the scope of their mandate. His view
was that the
investigation was a waste of money and if the CEO did not agree with
his views, the investigations could have continued
as he did not have
a final say on the matter.
27.6
In regard to the alleged failure to declare surplus to National
Treasury for 2012/2013, Mogorosi’s attitude was that he had no
obligation under the provisions of section 24 (3) of the RTMC
as
Acting CFO to report the surplus to National Treasury. He testified
that the only obligation on him was to inform the Shareholders
Committee and the Minister, who was also the chairperson of that
Committee. The Committee was then to decide what was to be done
with
the surplus. If the surplus was utilised for whatever reason, it was
only thereafter that National Treasury was to be informed.
He
contended that the PFMA did not come into consideration in regard to
the surplus, and in any event, there no surplus to be declared
in the
2012/2013 financial year.
27.7
Regarding the alleged misrepresentation made in his CV, Mogorosi
testified that after he had referred a dispute to the CCMA in respect
of his dismissal by the Department of Education in Mpumalanga,
the
Commissioner ruled in his favour but awarded him six months. He
testified that the Commissioner had also in his award stated
that he
(Mogorosi) was free to market himself, and that his previous employer
must change his dismissal to resignation so that
he could have a
clean record. It was on that basis that he had indicated in his CV
that he had resigned rather than dismissed.
[28]
Under cross-examination, and in regard to Mogorosi’s
contentions that his dismissal was changed to a resignation by a
CCMA
Commissioner, he was referred to a copy of that award at the
arbitration proceedings, and it was pointed out to him that nowhere
in the award was there a mention of resignation. It was further
pointed out to him that all the Commissioner did was to find that
his
dismissal was unfair, but that only compensation was appropriate. His
response was that the award other than declaring his
dismissal
unfair, also indicated that his dismissal ought to be removed from
the persal system so that his name was cleared to
enable him to
market himself with a clean record. It was nonetheless put to him
that there was no reference to a resignation in
the award; that there
was no resignation letter submitted, and that he had misrepresented
in his CV that he had resigned when that
was not the case.
[29]
Mogorosi conceded that the PFMA regulates the functions of the RTMC
as far as finance matters were concerned. Reference was
also made to
section 53 (3) of the PFMA in terms of which public entities may not
budget for a deficit and accumulate surplus unless
with prior written
approval of National Treasury. His response was that the RTMC Act
superseded the PFMA, and there was no need
to report any surplus to
National Treasury. He conceded that the surplus was not declared but
contended that the shareholders committee
was informed of it, and it
was not his responsibility to declare that surplus to National
Treasury.
[30]
Mogorosi further denied that he had obstructed the Nkonki
investigations and/or instigated other employees not to cooperate
with the investigation. His concerns with the investigation were that
it had not produced results and its costs were escalating.
[31]
In regard to the alleged failure to cancel the purchase order, his
contention was that Anne Seroka had called the unsuccessful
bidder
and there was no need for him to do so as he had also cancelled that
order on the system. He contended that there was no
risk to RTMC.
[32]
He further testified that upon the other two bidders being unable to
deliver, there was no need for the tender to be re-advertised,
as
there was no such provision in the policies. He contended that the
purchase order issued to CF Mathabatha was transparent, and
that even
though there was a minor error in the comparative schedule pertaining
to the scores allocated to the bidders which favoured
CF Mathabatha,
this was a small ‘
oversight
amounting to pettiness’
.
The
Commissioner’s findings:
[33]
The Commissioner having had regard to the Code of Good Practice:
Dismissal proceeded to determine whether the dismissal of
Mogorosi
was fair. Regarding the failure to cancel the purchase order issued
to Readmate and the awarding of the tender to CF Mathabatha,
the
Commissioner concluded that Mogorosi indeed failed to formally cancel
the purchase order issued to Readmate, and this constituted
negligence, as the failure exposed RTMC to risk. The Commissioner
however accepted the explanation proffered by Mogorosi as to
the
reason he had not cancelled the purchase order, but nonetheless held
that a formal cancelation was a safer option.
[34]
The Commissioner took issue with the allocation of the tender to CF
Mathabatha and Mogorosi’s explanation in regard to
the
incorrect allocation of scores to that entity. He rejected his
explanation in regard to the incorrect allocation of scores
as being
opportunistic.
[35]
Regarding the failure to declare the surplus to National Treasury,
the Commissioner accepted RTMC’s evidence that there
was indeed
an obligation on Mogorosi to declare the surplus in view of his
position. He rejected his explanation in that regard
and held that
his reliance on a mere legal opinion in not declaring the surplus was
not a justifiable excuse.
[36]
The Commissioner also accepted that Mogorosi had requested Moolman to
draft a letter to enable him to declare the surplus,
and he had not
explained how the draft letter was left unattended, and accordingly
the omission amounted to gross negligence. The
Commissioner found
that Mogorosi had failed to apply the standard of care expected of
him given his position and had continued
to deny any wrong doing.
[37]
Regarding the charge relating to disruptive or insolent behaviour,
the Commissioner viewed the charge as serious and found
that on the
probabilities, Mogorosi had made himself guilty of that charge. The
Commissioner reasoned that Mogorosi on his own
version was not in
agreement with the continued investigation. This was against a
decision already taken by RTMC that the investigations
were
important, and that the issue of costs and time associated with the
investigation were not as important as the investigation
itself.
[38]
Regarding the sanction of dismissal, the Commissioner concluded that
Mogorosi actions were grossly negligent and that a trust
relationship
was non-existent.
The
grounds of review and evaluation:
[39]
RTMC takes issue with the founding affidavit, which was deposed to by
a Mr Stuart Leslie Marshall, NEHAWU’s National
Legal
Co-ordinator, whom RTMC contended was not even in attendance at the
arbitration proceedings. It was submitted that in the
absence of
Mogorosi’s confirmatory affidavit, the averments in the
founding affidavit remained hearsay for the purposes of
this review
application. It was further pointed out that the founding affidavit
made no reference to the transcribed record of
proceedings; that no
supplementary or replying affidavits were filed, and further that the
founding affidavit should be ignored.
[40]
It was submitted on behalf of Mogorosi that even if he was not the
deponent to the founding affidavit, there was no basis for
the court
to disregard it, and further that there was no rule for the purposes
of review proceedings that reference should be made
to the record of
arbitration proceedings.
[41]
It is my view that even if there is no rule requiring applicants to
refer to a transcribed record in a review application,
to the extent
that such reference was instead made in the heads of argument, it is
trite that a case cannot be made out in such
heads of argument as
they are not in any event pleadings. To that end, where such
reference to the record had the effect of raising
new issues that
were not raised in the founding affidavit, such reference in my view
should carry no weight, especially in circumstances
where the
applicants elected not to file a supplementary affidavit. As it was
correctly submitted on behalf of RTMC, an applicant
must make out its
case in the founding papers.
[42]
The test on review if trite.
The enquiry is not whether the Commissioner was correct or not, but
whether his or her decision is
one that a reasonable decision-maker
could not have made in the light of the material presented at the
arbitration proceedings
[4]
.
[43]
The applicants contend that the
award was reviewable under the provisions of section 145 (2) of the
LRA. Central to the grounds
of review was that the Commissioner
ignored evidence, misdirected himself, and committed an irregularity
and/or misconduct in respect
of his duties as trier of facts. To the
extent that this is the essence of the review application, in
Head
of the Department of Education v Mofokeng
,
[5]
it was held that;
‘
The
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank
Ltd
and this court in
Goldfields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
and others have held that before such an irregularity will result in
the setting aside of the award, it must in addition reveal
a
misconception of the true enquiry or result in an unreasonable
outcome.’
And,
‘
The
determination of whether a decision is unreasonable in its result is
an exercise inherently dependant on variable considerations
and
circumstantial factors. A finding of unreasonableness usually implies
that some other ground is present, either latently or
comprising
manifest unlawfulness. Accordingly, the process of judicial review on
grounds of unreasonableness often entails examination
of
inter-related questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis, reasoning or
effect
of the decision, corresponding to the scrutiny envisioned in
the distinctive review grounds developed casuistically at common law,
now codified and mostly specified in section 6 of the Promotion of
Administrative Justice Act[8] (“PAJA”); such as
failing
to apply the mind, taking into account irrelevant considerations,
ignoring relevant considerations, acting for an ulterior
purpose, in
bad faith, arbitrarily or capriciously etc. The court must
nonetheless still consider whether, apart from the flawed
reasons of
or any irregularity by the arbitrator, the result could be reasonably
reached in light of the issues and the evidence.
Moreover, judges of
the Labour Court should keep in mind that it is not only the
reasonableness of the outcome which is subject
to scrutiny. As the
SCA held in Herholdt, the arbitrator must not misconceive the inquiry
or undertake the inquiry in a misconceived
manner. There must be a
fair trial of the issues.’ (Citations omitted)
[44]
Further to the extent that
Mogorosi’s complaint was that the Commissioner failed to
consider or ignored certain material,
in
Goldfields
[6]
,
it was held that;
‘
In
a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to take into account every factor individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine whether a failure by the arbitrator
to
deal with one or some of the factors amounts to process-related
irregularity sufficient to set aside the award. This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must necessarily consider the totality of
the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision-maker could make.’
And,
‘
Failing
to consider a gross irregularity in the above context would mean that
an award is open to be set aside where an arbitrator
(i) fails to
mention a material fact in his award; or (ii) fails to deal in
his/her award in some way with an issue which has some
material
bearing on the issue in dispute; and/or (iii) commits an error in
respect of the evaluation or considerations of facts
presented at the
arbitration. The questions to ask are these: (i) In terms of his or
her duty to deal with the matter with the
minimum of legal
formalities, did the process that the arbitrator employed give the
parties a full opportunity to have their say
in respect of the
dispute? (ii) Did the arbitrator identify the dispute he was required
to arbitrate (this may in certain cases
only become clear after both
parties have led their evidence)? (iii) Did the arbitrator understand
the nature of the dispute he
or she was required to arbitrate? (iv)
Did he or she deal with the substantial merits of the dispute? and
(v) Is the arbitrator’s
decision one that another
decision-maker could reasonably have arrived at based on the
evidence?
[7]
[45]
In this case, I did not understand Mogorosi’s case to be that
he was denied an opportunity to have his say in respect
of the
dispute, or that the Commissioner failed to identify the issues he
was required to determine or misunderstood those issues.
Furthermore,
I did not understand his case to be that the Commissioner had not
dealt with the substantive merits of the matter.
What remains to be
determined therefore is whether the decision reached by the
Commissioner is one that another Commissioner could
not have arrived
at based on the evidence presented.
[46]
In respect of the first charge, Mogorosi’s contention was that
the Commissioner committed a misconduct and/or irregularity
in that
he ignored or disregarded Kgwedi’s relevant testimony that
Seroka had actually contacted Readmate to inform it that
the purchase
order had been cancelled. It was contended that no other evidence was
placed before the Commissioner that Mogorosi
was personally obliged
to cancel the purchase order and further that since Seroka as his
subordinate had done so, it should be
inferred that he had complied
with his duties.
[47]
Central to this charge is whether the failure by Mogorosi to cancel
the purchase order issued to Readmate constituted gross
negligence in
the sense that such a failure placed RTMC at a financial risk and or
legal risk. It was common cause that Readmate
had sent an e-mail
cancelling the purchase order as it could not provide the good
required. Seroka had telephonically confirmed
the cancellation, and
Mogorosi had confirmed the cancellation of that order on 29 February
2014. In these circumstances, I fail
to appreciate what possible
financial or legal harm could have been caused by Mogorosi further
having to confirm Readmate’s
cancellation when there was
already such confirmation between Readmate and Seroka.
[48]
To the extent that it was not in dispute that Readmate had confirmed
that it was unable to deliver the product required, I
fail to
appreciate the reason it can be said that Mogorosi’s failure to
confirm a known fact could have placed RTMC at a
risk. It would not
have made sense for Readmate to litigate in respect of a loss of a
contract in circumstances where on its own
version, it could not have
met RTMC’s requirements.
[49]
There is nothing in the Supply Chain Management Policy that further
placed such an obligation on Mogorosi to cancel an already
cancelled
contract. Clause 10.8 (Cancellation of Contracts) of the Policy
places no such obligation on the CFO, and any risk alleged
by RTMC on
the basis that if the cancellation was not done by Mogorosi could
have ended up with double payments or a payment to
a supplier that
did not deliver is in my view far-fetched. To this end, there is
merit in Mogorosi’s contentions that the
Commissioner’s
conclusions in respect to this charge are a misdirection.
[50]
The second allegation of misconduct pertained to the issuing of a
purchase order to CF Mathabatha without ensuring that effective,
efficient and transparent procurement measures were implemented. This
was in circumstances where Mogorosi had awarded the contract
to CF
Mathabatha where the other two bidders, i.e Readmate and Canri were
unable to deliver the products required. Mogorosi’s
contention
was that he had merely exercised his professional discretion to award
the contract to CF Mathabatha, as the failure
to do so would have
exposed RTMC to a law suit. He further contended that there was no
specific rule or policy requiring him to
re-advertise the request for
quotations if there was a vast price difference between quotations
received, and that the difference
in calculations was inconsequential
as other bidders had excluded themselves. Mogorosi further contended
that the Commissioner
placed undue evidentiary weight on the fact
that there were obvious errors on the score sheets but had ignored
that the other bidders
had excluded themselves in any event.
[51]
RTMC had however correctly pointed out that Mogorosi had conceded
that he had allocated the points incorrectly to the various
bidders,
and this constituted a serious offence as his gross negligence could
have resulted in a loss to it and irregular expenditure.
The
Commissioner had agreed with this contention and found that
Mogorosi’s conduct amounted to gross negligence.
[52]
A worrying factor in respect of
this charge is that Mogorosi did not appear to appreciate the
magnitude and consequences of his
conduct. The Policy provides that
supply chain of goods and services must be done in accordance with a
system that is fair, equitable,
transparent, competitive and
cost-effective. This is in line with the provisions of section 38 of
the PFMA, as the consequences
of non-compliance would result in
unauthorised, irregular, fruitless and wasteful expenditure, which
may be considered financial
misconduct and subject to disciplinary
process
[8]
.
[53]
To the extent that Mogorosi had simply dismissed the incorrect
calculations as an error which was inconsequential, I have no
reason
to believe that the Commissioner’s conclusions that Mogorosi’s
explanation was opportunistic can be faulted.
An incorrect
calculation of points in a bidding process had the consequences of
eroding any fairness, transparency or competitiveness
in that bidding
process, which is the antithesis of the values and principles
enshrined in the PFMA or RTMC’s own policies.
[54]
That ‘error’ as claimed by Mogorosi cannot simply be
acknowledged and yet be dismissed as inconsequential. To the
extent
that there was this incorrect calculation, this gave credence to the
contention that it was necessary to re-advertise the
bidding process.
Mogorosi had however simply dismissed the re-advertisement of the
bidding process as unnecessary as the other
bidders had cancelled
themselves out of the equation. This however was not the point. The
issue was whether in the first place,
a fair, transparent, and
competitive bidding process had taken place. Furthermore, to the
extent that CF Mathabatha’s quotation
was higher than the other
bidders, and even if it was the only quotation to be considered,
there was still a need to comply with
the provisions of clause 6.2 of
the SCMP. This would have enabled Mogorosi to justify the appointment
of a bidder which had a higher
quotation, and to explain the reasons
why the entire process was not re-advertised. Accordingly, the
Commissioner’s conclusions
in regard to the second charge
cannot be faulted.
[55]
In regard to the third allegation that Mogorosi had disrupted the
Nkonki investigations or that he had instigated other employees
not
to cooperate with that investigation, it was submitted on his behalf
that the Commissioner ignored certain facts such as that
his duties
included advising the CEO, and that he had raised concerns with the
fact that the costs of the investigation were escalating
without any
results. He had conceded that he indeed wanted the investigations to
be stopped, but that he was punished for exercising
his professional
discretion.
[56]
Nkonki was mandated to conduct investigations into the RTMC’s 9
bank accounts for the period 2009 to March 2012, and
to review and
verify that all deposits and payments were valid, accurate and
complete; that all transactions were properly authorised,
and whether
these transactions were valid. This was indeed an important
investigation that would have revealed any alleged malfeasance
within
RTMC.
[57]
In the end, the investigations revealed that RTMC was vulnerable to
fraudulent activities. Certain staff members including
the CFO,
Portia Mngomezulu were implicated for not reporting incidents to the
police. Mogorosi was accused of having interrupted
the investigations
and instigating others not to cooperate at a crucial point when a
court order variation application agreed on
previously, urgently
needed to be signed to assist with the investigations to obtain
certain information.
[58]
It was common cause that the then CFO, Portia Mngomezulu had given an
undertaking to cooperate with the investigation, and
when she went on
maternity leave, Mogorosi acted as the CFO. The allegation was that
when Mogorosi took over, the investigation
met a dead-end as he had
refused to cooperate. Mtimkhulu’s evidence under
cross-examination was that upon the complaints
being raised by
investigators that staff members were not cooperating, Mogorosi had
in her presence, telephonically contacted staff
members to cooperate
with the investigation. Mogorosi however on his own version was
displeased with the investigations on the
grounds of the escalation
in costs and lack of progress.
[59]
To the extent that the decision of whether the investigations
continued or not was a matter for the CEO or the Shareholders
Committee to decide on, it is my view that in the absence of any
evidence indicating how Mogorosi had actively disrupted those
investigations or instigated other employees not to cooperate, I fail
to appreciate how it can be said that he was the stumbling
block to
those investigations. There was no evidence placed before the
Commissioner to suggest that Mogorosi had effectively ended
the
investigation. No evidence was placed before the Commissioner by any
of the employees allegedly instigated not to cooperate
with the
investigations, and worst still, no evidence was placed before the
Commissioner as to what the role of the then CEO or
the Shareholder
Committee was in the ending of those investigations.
[60]
It is therefore my view that contrary to the Commissioner’s
conclusions, the probabilities are that as Mogorosi had suggested,
and irrespective of his negative stance towards those investigations,
his role was merely that of advisor to the CEO in respect
of the
continuation of the investigations, and it was for the CEO to take a
final decision on whether they continued or not. Accordingly,
the
probabilities favoured a finding of not guilty on that charge.
[61]
The charge pertaining to the failure to declare the surplus amount to
National Treasury is however more serious, and it is
a matter that
requires an interpretation of various applicable legal prescripts and
the legal framework within which the RTMC operates.
[62]
As a Schedule 3 entity in terms
of the PFMA, RTMC is governed by the Road Traffic Management Act
(RTMA) and must comply with the
provisions of the Supply Chain
Management and the Reporting By Public Entities Act
[9]
.
Sections 40 (1)(a) of the PFMA read with section 17.2 of National
Treasury Regulations require accounting officers to keep
a full
record of the financial affairs of a department in accordance with
prescribed norms and standards.
[63]
Section 24 (
Finance
) of the RTMA, which it was said that
Mogorosi had failed to comply with provides that;
‘
(3)
At the end of each financial year the chief executive officer must
report to
the Shareholders Committee on any surplus funds of the
Corporation, as may be determined by the Minister and every MEC with
the
concurrence of the Minister of Finance and every MEC responsible
for finance in each province.
(4)
The Shareholders
Committee may direct that payments be made from the surplus
funds to
a province, but such payments must be proportionate to the relative
contribution to the profits generated through the
provision of road
traffic services in the province or received by an agent acting on
behalf of the Corporation within the geographical
area of the
province.
[64]
Mogorosi’s contention in light of the above provisions was that
he was only required to advise the Shareholder Committee
of the
surplus in terms of section 24 (3) of the RTMA, for it to decide what
it wanted to do with that surplus in terms of subsection
(4). He
further contended that it was thereafter for the Committee and the
CEO TO declare such surplus to National Treasury.
[65]
Section 53 of the PFMA, upon which RTMC sought to rely in pursuing
the charge against Mogorosi provides that;
Annual
budgets by non-business Schedule 3 public entities
-
(1)
The accounting authority
for a public entity listed in Schedule 3 which is not a government
business enterprise must submit to the
executive authority
responsible for that public entity, at least six months before the
start of the financial year of the department
designated in terms of
subsection or another period agreed to between the executive
authority and the public entity, a budget of
estimated revenue and
expenditure for that financial year, for approval by the executive
authority.
(2)
The budget must be
submitted to the executive authority through the accounting officer
for a department designated by the executive
authority, who may make
recommendations to the executive authority with regard to the
approval or amendment of the budget.
(3)
A public entity which
must submit a budget in terms of subsection (1), may not budget for a
deficit and may not accumulate surpluses
unless the prior written
approval of the National Treasury has been obtained.
(4)
The accounting authority
for such a public entity is responsible for ensuring that expenditure
of that public entity is in accordance
with the approved budget.
(5)
The National Treasury may
regulate the application of this section by regulation or instruction
in terms of section 76.
[66]
It is common cause that National Treasury on 15 July 2014 registered
its concerns in regard to the failure to declare surplus
funds in the
amount of R296.4 million with an accumulated surplus of R418.8
million as at 31 March 2013. In accordance with the
provisions of
section 24 (3) of RTMA, at the end of each financial year the Chief
Executive Officer was required to report to the
Shareholders
Committee on any surplus funds of RMTC.
[67]
Mogorosi on his own version conceded that he had not reported the
surplus in question. This was in circumstances where it was
not
disputed that he had requested Moolman to prepare a draft letter to
National Treasury in that regard, with the purpose of clearly
complying with RTMC’s statutory obligations under section 53
(3) of the PFMA. Mogorosi therefore knew that there was an obligation
to declare the surplus. That obligation was on the CEO. However, for
the CEO to comply with that obligation, it was required of
Mogorosi
to finalise the draft letter which was meant to be passed on to the
CEO, and thereafter for it to be passed on to National
Treasury.
[68]
For Mogorosi to now claim that he had no obligation to declare the
surplus or that he had merely relied upon some legal opinion
for not
doing so is not only convenient but also disingenuous in the extreme.
It was only as a consequence of his omission to finalise
the draft
letter declaring the surplus that a complaint was registered by
National Treasury, as the CEO had not met his or her
obligations. The
debates surrounding whether the PFMA or RTMA was applicable is
neither here nor there, as the obligation to declare
the surplus
arises from both. Mogorosi’s obligations were in regard to
compliance with the provisions of section 24 (3) of
the RTMA, and on
Moolman’s uncontested evidence, the draft letter sent to
Mogorosi for the purposes of compliance with section
53 (3) of the
PFMA was never finalised. That omission as correctly pointed out by
the Commissioner was serious and constituted
gross negligence.
[69]
In respect of the other charges
against Mogorosi, it is trite that a Commissioner is only required to
determine whether the
reason
for a dismissal was fair
[10]
.
In this case, it was common cause that Mogorosi was not found guilty
on the fourth charge in the internal disciplinary enquiry,
and there
was no reason for the Commissioner to entertain it.
[70]
In regard to the issue of the alleged misrepresentation in Mogorosi’s
CV, that also was not a charge that was preferred
against him at his
internal disciplinary hearing. It was not a reason for his dismissal
and there was equally no obligation on
the Commissioner to have
regard to it.
[71]
Mogorosi’s contentions that the dismissal was procedurally
unfair were also reasonably dealt with and rejected by the
Commissioner. It was found that based on the internal chairperson’s
evidence which was not refuted in the arbitration proceedings,
there
was no merit to those contentions as the chairperson of the internal
enquiry had granted him an opportunity to plead in mitigation
but
that he and his representative had failed to do so. In any event, the
issue surrounding the alleged procedural unfairness of
the dismissal
was not pursued with any vigour in these review proceedings.
[72]
The only issue left for
determination in the light of the findings in respect of the other
two principal charges is whether the
conclusion of the Commissioner
that a sanction of dismissal was appropriate was reasonable. Central
to the two charges was that
Mogorosi’s conduct amounted to
gross negligence. It is trite that gross negligence
per
se
does not automatically
translate to dismissal as a sanction. It remains the duty of the
Commissioner (taking all relevant factors
into consideration) to
decide on a fair sanction
[11]
.
[73]
Negligence denotes a failure to
comply with the standard of care that would ordinarily be exercised
in the circumstances by a reasonable
person. In addressing what
constitutes gross negligence, this court in
Department
of Co-Operative Governance, Human Settlements and Traditional
Affairs, Limpopo Province and Another v Seopela N.O and
Others
[12]
referred to
Transnet Ltd t/a
Portnet v Owners of the MV Stella Tingas and Another
[13]
,
where it was held that;
‘…
.
it is not consciousness of risk-taking that distinguishes gross
negligence from ordinary negligence. …. If consciously
taking
a risk is reasonable there will be no negligence at all. If a person
foresees the risk of harm but acts, or fails to act,
in the
unreasonable belief that he or she will be able to avoid the danger
or that for some other reason it will not eventuate,
the conduct in
question may amount to ordinary negligence or it may amount to gross
negligence (or recklessness in the wide sense)
depending on the
circumstances. …. even in the absence of conscious
risk-taking, conduct may depart so radically from the
standard of the
reasonable person as to amount to gross negligence …. It
follows that whether there is conscious risk-taking
or not, it is
necessary in each case to determine whether the deviation from what
is reasonable is so marked as to justify it being
condemned as gross
.…
Dicta
in modern judgments, although sometimes more appropriate in respect
of
dolus eventualis
,
similarly reflect the extreme nature of the negligence required to
constitute gross negligence. Some examples are: 'no consideration
whatever to the consequences of his acts' (Central South African
Railways v Adlington & Co
1906 TS 964
at 973); 'a total disregard
of duty' (Rosenthal v Marks
1944 TPD 172
at 180); 'nalatigheid van 'n
baie ernstige aard' or ''n besondere hoë graad van nalatigheid'
(S v Smith en Andere
1973 (3) SA 217
(T) at 219A - B); 'ordinary
negligence of an aggravated form which falls short of wilfulness'
(Bickle v Joint Ministers of Law
and Order
1980 (2) SA 764
(R) at
770C); 'an entire failure to give consideration to the consequences
of one's actions' (S v Dhlamini
1988 (2) SA 302
(A) at 308D).”
It follows, I think, that to qualify as gross negligence the conduct
in question, although falling short of
dolus
eventualis
, must
involve a departure from the standard of the reasonable person to
such an extent that it may properly be categorised as extreme;
it
must demonstrate, where there is found to be conscious risk-taking, a
complete obtuseness of mind or, where there is no conscious
risk-taking, a total failure to take care.…’
[74]
In this case, it can safely be concluded that on a consideration of
all the facts, particularly in respect of the two instances
of
omission mentioned in my evaluation, there was cause to believe that
Mogorosi’s omissions involved a departure from the
standard of
a reasonable person to such an extent that it may properly be
categorised as gross. The importance of a public entity
complying
with applicable prescripts cannot be emphasised, and the fact that
section 38 of the PFMA spells out the consequences
of non-compliance
with its prescripts is instructive. Mogorosi knew that there was a
need to declare the surplus and the mere fact
that he had instructed
Moolman to kick-start a process of reporting the surplus, and yet
failed ultimately to see that process
through by finalising the draft
letter and forwarding it to the CEO is indicative of his conscious
risk-taking, and total failure
to take care. A conscious decision not
to comply with applicable legal prescripts pertaining to finances
within a public entity
should in my view be considered as a serious
form of misconduct, and the Commissioner’s conclusions that
such conduct was
appropriately met with a sanction of dismissal
cannot be faulted.
[75]
In circumstances where it was apparent that incorrect scores had been
allocated to a successful bidder, and where there was
a clear and
conscious decision not to re-advertise the bidding process, this also
involved a complete disregard of the principles
of transparency,
fairness and fair competition espoused in applicable prescripts,
which conduct in my view is deserving of the
ultimate sanction.
[76]
In the end, even if there was some merit in Mogorosi’s
contentions that the Commissioner had ignored some or other material
in coming to his conclusions, those have been dealt with to the
extent that he should not have been found guilty on some of the
charges that led to his dismissal. On the whole however, and given
the facts placed before the Commissioner and the conclusions
made in
respect of the other charges, it cannot be said that any such
irregularity can result in the setting aside of the award.
This is so
in that such any irregularities to the extent that there was any
merit in them, have not revealed a misconception of
the true enquiry
or resulted in an unreasonable outcome. To that end, it should be
concluded that the Commissioner’s outcome
falls within a band
of reasonableness.
[77]
I have had regard to the considerations of law and fairness, and
despite RTMC’s contentions that a cost order should
follow, I
do not share that view.
Order
Accordingly,
the following order is made;
1.
The application to review and set aside the award issued by
the
Second Respondent is dismissed;
2.
There is no order as to costs.
____________________
E
Tlhotlhalemaje
Judge of the Labour Court of South
Africa
APPEARANCES:
For
the Applicant:
Mr Tsietsi Majang of Majang Incorporated attorneys
For
the Respondent:
Adv. F. Verveen
Instructed
by:
Nishlan Moodley Attorneys
[1]
Section 3 of Act 20 of 1999, as amended
[2]
Act 1 of 1999, as amended
[3]
Section 2 of the RTMA
[4]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Another
[2007] 12 BLLR 1097
(CC) para [110].
[5]
[2015] 1 BLLR 50
(LAC) at paragraphs 30 - 31
[6]
Gold Fields Mining South
Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration and others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 18
[7]
At para 20
[8]
Clause 4 of
the SCMP
[9]
Act No. 93 of 1992
[10]
Section 188
of the Labour Relations Act provides that;
188.
Other unfair dismissals
(1)
A
dismissal
that is not automatically unfair, is unfair if the employer fails to
prove -
(a)
that the reason for
dismissal
is a fair reason -
(i)
related to the
employee’s
conduct or capacity; or
(ii)
based on the employer’s
operational requirements
;
and
(b)
that the
dismissal
was effected in accordance with a fair procedure.
(2)
Any person considering whether or
not the reason for
dismissal
is a fair reason or whether or not the
dismissal
was effected in accordance with a fair procedure must take into
account any relevant
code of good
practice
issued in terms of
this
Act
[11]
Solid
Doors (Pty) Ltd v Commissioner JP Hanekom NO
.
CA19/2012)
[2014] ZALAC 19
(30 April 2014) at para 13
[12]
(JR 226 / 2012) [2015] ZALCJHB 22 (4 February 2015) at para 40
[13]
2003 (2) SA 473
(SCA) at para 7