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[2018] ZALCJHB 268
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Jijana v Commission for Conciliation, Mediation and Arbitration and Others (JR2049/15) [2018] ZALCJHB 268 (28 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 2049/15
In
the matter between:
NTOMBIZODWA
PORTIA
JIJANA
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
WILLEM KOEKEMOER
N.O
Second
Respondent
TELKOM
SA SOC
LTD
Third
Respondent
Heard:
8 March 2018
Delivered:
28 August 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The applicant was dismissed on 27 March 2015 after twenty
years of service with the third respondent (Telkom). At
the time of
her dismissal, she was employed as Specialist, Human Resources
Business Partner. She was dismissed following upon an
enquiry into
three allegations of misconduct,
viz
;
a) Violation of the Conflict of
Interest Policy in that she shortlisted her son for a job interview.
b) Violation of the Business Code of
Ethics and the Conflict of Interest Policy
c) Intimidation of a
Superior/Colleague
[2]
In respect of the third charge, the applicant having lodged an
internal appeal was issued with a final written warning. An alleged
unfair dismissal dispute subsequently referred to the Commission for
Conciliation Mediation and Arbitration (CCMA) came before
the second
respondent (Commissioner) for arbitration. In an award issued on
10 September 2015, the Commissioner found
that the
dismissal of the applicant was procedurally and substantively fair.
The applicant now seeks to have the arbitration award
reviewed and
set aside. The application is opposed by Telkom.
The
evidence
:
[3]
The allegations against the applicant flowed upon the execution of
her duties in respect of a recruitment process for a level
S6
position that was advertised in December 2012. It was not in
dispute that once the advertisement of a post was approved,
the
applicant was
inter alia
responsible for facilitating the
process of recruitment by receiving the internal and external
applications from Telkom’s
staffing department, which would
have done shortlisting.
[4]
The applicant was responsible for forwarding the applications to the
line manager that requested the position. The line manager
would
conduct a further shortlisting and where necessary, request the
applicant to assist in the shortlisting process. In some
instances,
the applicant might also be required to be present in the interviews.
[5]
The applicant’s son was one of the external candidates that had
applied for the post. He was shortlisted, and his application
was one
that was forwarded to the applicant, which was thereafter to be
forwarded to a line manager who had requested the post.
The
applicant’s contention in respect of the allegations was that
she was not involved in the shortlisting nor had she attended
the
interviews in respect of the position. She further contended that she
had simply forwarded the list of external applications
including that
of her son to the line manager, Mr Siwela (Siwela). Siwela was not in
the office at the time and upon being contacted
on his mobile phone,
he had requested the applicant to take the applications to his
colleague, Ms. Maruma (Maruma), which the applicant
had done. She had
further testified that during her telephonic conversation with
Siwela, she had informed him that since one of
the candidates was her
son, she would recuse herself from any steps in the appointment of a
suitable candidate.
[6]
Telkom’s case was however that the applicant having placed the
name of her son on the shortlist, she had proceeded to
misrepresent
to Maruma that the shortlisting had been conducted by Siwela, in
whose division the post arose, and that Siwela had
mandated her to
request Maruma to stand in for him and to conduct the interviews for
the position, including interviewing her son,
when that was not the
case.
[7]
Siwela’s testimony was that he had taken leave between
18 December 2012 and January 2013 and had not seen
the
applications. Maruma had called him in December 2012 to confirm
that the applicant had requested her to stand in for him
for the job
interviews scheduled for January and was agreeable to the request. He
had nonetheless denied having participated in
the shortlisting
process or having requested Maruma to stand for him in the
interviews. Since he was not involved in the shortlisting
process, he
had advised Maruma to cancel the scheduled interviews. Siwela’s
further testimony was that an e-mail was sent
to him by the applicant
on 30 January 2013 when she recused herself from the
recruitment process. He however became aware
for the first time in
June 2015 that one of the candidates for the post was the
applicant’s son, when the applicant
sent him an e-mail seeking
to be recused from the recruitment process.
[8]
Maruma’s testimony was that the applicant called her on
20 December 2012 and invited her as a panellist in the
interviews to be conducted for the position in her section. The
applicant had further requested her to invite the candidates and
arrange for interview dates with them, and informed her that she
would be standing in for Siwela who was on leave. The applicant
had
confirmed with her that Siwela was happy with the arrangements, and
was given the names and contact details of the candidates.
Upon
recognising from the list that one of the candidates was the
applicant’s son, Maruma had asked the applicant whether
she was
related to the candidate. The applicant had confirmed that there was
a relationship, but that she was however going to
recuse herself from
the interviews. Maruma further confirmed that she had called Siwela
about the arrangements as related to her
by the applicant, and Siwela
had expressed surprise at those arrangements, as he was not even
aware of the proposed interviews
and had also not made a request for
Maruma to stand in for him at any interviews.
[9]
Further evidence was led in the arbitration by Ms. Langa (Langa), the
applicant’s direct superior, in regard to an incident
leading
to the third charge. In that regard, the evidence was essentially to
the effect that in a meeting convened by the applicant
in
January 2013 to discuss HR related matters, the latter had
threatened her when they were alone, by further daring her to
proceed
with a disciplinary enquiry against (which was not at that stage
planned as investigations had still been on-going in respect
of the
breaches of the policy), and told her that she should ‘watch
her back’. The applicant had nonetheless denied
the allegation,
contending that she had merely enquired from Langa about the
investigations, and that she and Langa had a good
relationship.
[10]
The Commissioner as already indicated found that the dismissal of the
applicant was fair, and the reasons in that regard will
be dealt with
below.
The
grounds of review and evaluation:
[11]
The applicant contends that the award was reviewable on a variety of
grounds including that the Commissioner committed gross
irregularities in the conduct of proceedings; and/or committed
misconduct in relation to his duties as he had placed undue weight
on
some evidence and thereafter arrived at conclusions that are not
supported by evidence; and/or exceeded his powers; and/or acted
unreasonably in that he failed to apply his mind to the issues before
him; and incorrectly recorded and/or misconstrued the evidence
before
him, thus resulting in her not being afforded a fair hearing.
[12]
Having had regard to the grounds of review, the transcribed record of
the arbitration proceedings, the Commissioner’s
award, the
pleadings and the submissions made on behalf of the parties, it is my
view that the Commissioner’s award and conclusions
reached
therein falls within a band of reasonableness based on the following
reasons;
12.1 It was submitted on behalf of the
applicant that taking into consideration her years of service and
clean disciplinary record,
the sanction of dismissal was unreasonable
and that the Commissioner failed and/or neglected to consider all the
circumstances,
the importance of the rule allegedly breached, the
reasons Telkom imposed the sanction, and the effect of the dismissal.
12.2
It is trite that the mere fact
that the applicant had 20 years of service and a clean record is not
a bar to imposing a sanction
of dismissal
[1]
.
A determination of whether a sanction of dismissal is appropriate
involves a consideration of all relevant factors
[2]
.
This approach was reiterated in
G4S
Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others
,
where the Labour Appeal Court, in further reference to
Toyota
SA Motors
, held that;
“
In
determining the fairness of a dismissal, each case is to be judged on
its own merits. Item 3(4) of the Code of Good Practice
recognises
that dismissal for a first offence is reserved for cases in which the
misconduct is serious and of such gravity that
it makes continued
employment intolerable, with instances of such misconduct stated to
include gross dishonesty. When deciding
whether dismissal is
appropriate, the Code requires consideration, in addition to the
gravity of the misconduct, of personal circumstances
including length
of service and the employee’s previous disciplinary record, the
nature of the job and the circumstances
of the infringement itself.
Other relevant considerations include the presence or absence of
dishonesty and/or loss and whether
remorse is shown”
[3]
12.3 In this case, the Commissioner
was clearly alive to the above principles, having made the Code of
Good Practice his starting
point in his analysis. The
applicant’s contentions therefore that the Commissioner failed
to take into account the provisions
of the Code is fallacious. In
this regard, the Commissioner considered the first charge of
violating Telkom’s Conflict
of Interest Policy to be the main
charge and made the following significant conclusions;
12.3.1
The violation of the policy led to the applicant’s follow-up
acts of misconduct, when she attempted to get Maruma to
conduct the
interviews on behalf of Siwela and when the latter was on
leave, thus attempting to bring to
fruition her attempts
to get her son to be appointed.
12.3.2
The misrepresentation and untruths by the applicant to Maruma merely
highlighted the conflict of interest situation embarked
upon and
continued with by her;
12.3.3
The policy was in place not only to protect the interests of Telkom
but also those of its employees, and the rationale behind
the
requirement to disclose any conflict of interest was for the employer
to ensure that an employee was employed for the employer’s
best
interests.
12.3.4
In the event of non-disclosure of a private interest, the good faith
of the employee was placed into question, and the applicant’s
non-disclosure amounted to a material breach of the contract of
employment, which had the consequences of breaching the relationship
of trust between the parties. A genuine and timely disclosure of
conflict of interest by her could have protected her if she had
heeded the policy.
12.3.5
The overwhelming evidence was that the applicant compromised her
position to such an extent that her conduct destroyed any
meaningful
employment relationship.
12.3.6
The applicant had lured her son through hundreds of job applications
onto the shortlist of only three candidates, attempted
to arrange
interviews without Siwela being present; continued to manoeuvre
her son to the next round of job applicants to
be interviewed, and
essentially allowed a situation where her personal agenda came into
direct conflict with that of the employer.
12.3.7
She was aware of the policies, which were reasonable, fair and valid.
Her explanation for her contraventions was baseless,
and she had
insisted that she had done nothing wrong. Her evidence was
untruthful, and her vast experience in the Human Resources
and
recruitment environment was another factor that counted against her.
12.3.8
In view of the importance of the conflict of interest policy, the
position that the applicant occupied, the fact that she
could no
longer be trusted as a consequence of her breach of the policy, a
sanction of dismissal was appropriate, more particularly
since she
had persistently denied any wrongdoing, thus excluding any
consideration of other corrective measures.
12.4 In my view, the conclusions
reached by the Commissioner cannot be faulted in that as appears from
the transcribed record and
summary of her evidence, the applicant
appears to have rushed, or sought to conclude the recruitment process
in the absence of
Siwela. Upon the intervention of Siwela and the
concerns he had raised about the whole process, the position had to
be re-advertised.
12.5 Her excuse that she was
pressurised by a Union member to hurry up the recruitment process and
finalise it by January 2013
is indeed lame. It is trite that the
prerogative to advertise positions and employ suitable candidates is
that of the employer.
The entire recruitment process is driven by the
employer, and I fail to appreciate what type of pressure could have
been placed
on the applicant that made her breach simple policies
well-known to her, which breach was material as correctly concluded
by the
Commissioner, and which was clearly designed to advantage her
son.
12.6 A significant factor with the
applicant’s evidence was that despite being found guilty of
breaching the policy, she did
not deem her conduct as being
dishonest. Any HR practitioner involved in recruitment processes
should know, without being asked
or without even any specific rules
in place, that a recusal from the process would be appropriate where
there is a clear , let
alone a potential conflict of interest. In
circumstances where a candidate who had had responded to an
advertisement may be related
or known to HR personnel involved in the
recruitment process, any such personnel must clearly not only declare
such an interest
but must also recuse him/herself from that process.
12.7 The applicant’s contention
therefore that there was nothing in the policy that suggested that
she should have recused
herself from the recruitment process where
her son was a candidate is clearly misplaced. Oddly enough, the
applicant appreciated
that clause 7 of the policy dealt with possible
conflict of interest situations and what to do under those
circumstances. In essence
therefore it can be said that she
deliberately breached the policy.
12.8 On the applicant’s own
version, the first time that she formally recused herself from the
process was by way of e-mail
in January and June 2013 to Siwela. This
can only be confirmation that she knew that she had to do so in the
first place, especially
since she would have known that her son had
responded to the advertisement. Even when she did recuse herself, the
recruitment process
was long underway, with her son already having
been shortlisted. Clearly the belated e-mail was an afterthought to
minimise the
effects of the harm already done.
12.9 The applicant’s contentions
that she was under no obligation to recuse herself from the
recruitment process when her
son was one of the candidates; or that
she was not prepared to show contrition as she had done nothing
wrong, or that even if her
son was appointed Telkom would not have
been prejudiced, is a further indicative of her failure to
acknowledge or appreciate the
gravity of her conduct. It is not
suggested that her son ought not to have responded to the
advertisement or be appointed at all
by Telkom where he was suitably
qualified for a position. All that is being said is that if the
applicant’s son were to be
appointed, that appointment must
have been untainted, in the sense that it was done properly and
fairly, without him having gained
some unfair advantage over other
candidates through the applicant’s conduct.
12.10 The submissions made on behalf
of Telkom that the applicant’s case centres around the issue of
sanction rather than
the overall merits of her case is correct. This
is evinced from the arguments advanced on her behalf that the
sanction of dismissal
imposed on her ‘induced a sense of
shock’, as the misconduct in question was not gross. The
difficulty with this argument
is that it is either an employee has
acknowledged wrongdoing or not. The contention that a lesser sanction
would have been appropriate
can only infer an acknowledgement that
there was indeed misconduct on the part of the applicant, which
deserved censure.
12.11 The circumstances of this case
are such that the applicant, despite seeking a lesser penalty
nonetheless failed to acknowledge
any wrongdoing, or to show some
form of contrition. This was despite evidence from three senior
co-employees, with whom it was
not in dispute that she had a good
relationship. The nature of the misconduct in this case as correctly
found by the Commissioner,
had the net effect of breaking a trust
relationship. Accordingly, there can be no basis for any conclusion
to be reached that a
lesser sanction would have been appropriate.
[13]
The conclusions reached by the Commissioner in regard to the charges
related to the breach of the Conflict of Interests Policy
are
unassailable. In respect of the third charge, even if it was
intrinsically linked or flowed from the main charges, and further
to
the extent that on its own, it was met with a sanction of a final
written warning after the appeal hearing, no purpose would
be served
by considering it for the purposes of whether the award is reviewable
or not, particularly since not much was made of
it in the pleadings.
The only reference made by the applicant in regard to it was to
acknowledge that she had received a warning,
[14]
In conclusion, and in line with
the principles set out in
Goldfields
[4]
,
I am satisfied that on the
whole, the Commissioner in terms of his duty to deal with the matter
with the minimum of legal formalities,
afforded the parties a full
opportunity to have their say in respect of the dispute, duly
identified and understood the dispute
he was required to arbitrate,
dealt with the substantial merits of the dispute and arrived at a
decision another decision-maker
could reasonably have arrived at
based on the evidence placed before him. I have further had regard to
the requirements of law
and fairness in regards to the question of
costs, and notwithstanding Telkom’s insistence that a cost
order was called for,
I do not however share that view. Accordingly,
the following order is made;
Order:
1. The application to review and set
aside the arbitration 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. TZ Tshabalala of Nkosi Tshabalala INC
For
the 3
rd
Respondent: Mr. M Mbuyisa of Maserumule Attorneys
[1]
Toyota SA Motors (Pty) Ltd
v Radebe and Others
[2000]
3 BLLR 243
(LAC) at para 15, where it was held that;
“
...Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must
be made that there are certain acts of misconduct which are of such
a serious nature that no length of service
can save an employee who
is guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty”
[2]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) at para 79
[3]
(2017) 38 ILJ 881 (LAC) at para 25
[4]
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); (2014) 35 ILJ 943 (LAC) at para 20