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[2018] ZALCJHB 398
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Moeketsi v Transnet Bargaining Council (JR 1620/15) [2018] ZALCJHB 398 (5 December 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1620/15
In
the matter between
:
NKOTOLOANE
MOEKETSI
Applicant
and
TRANSNET
BARGAINING COUNCIL First
Respondent
PANELLIST
TSHEPO
MASHIGO Second
Respondent
TRANSNET
ENGINEERING Third
Respondent
Heard:
13 September 2018
Delivered:
05 December 2018
Summary:
Review application – dishonesty goes to the core of the
employment relationship – seniority of the offender
is an
aggravating factor.
JUDGMENT
NKUTHA
- NKONTWANA. J
Introduction
[1]
The
applicant was employed by the third respondent as the Employee
Assistant Programme Manager (EAP Manager). He was charged with
allegations relating to dishonesty and four counts of gross
negligence. The enquiry took a form of a pre-dismissal arbitration
in
accordance with section 188A of the Labour Relations Act
[1]
(LRA). The applicant was found guilty on all charges, but one. A
sanction of a final written warning was mitted out on charges
relating to negligence. He was, however, dismissed for dishonesty.
[2]
In this
application, the applicant seeks an order reviewing and setting aside
the arbitration award issued by the second respondent
(arbitrator)
under case number TBC2866/14, dated 3 July 2014. The applicant’s
impugn is limited to the finding that he was
guilty of dishonesty and
the sanction of dismissal. The third respondent is robustly defending
the award.
Background
facts
[3]
On 19 July
2013, there was an altercation between two of the third respondent’s
employees, Messrs Ndaba and Mpokotya. Mr Mpokotya
reported the
incident to Mr Davhana, their supervisor. Mr Davhana testified that
he was not in a position to deal with the complaint
on 22 July 2013
as he had other engagements out of office. He informed Messrs Ndaba
and Mpokotya that he would deal with the compliant
on 23 July 2013.
[4]
On Monday,
22 July 2013, Messrs Ndaba and Mpokotya resolved their dispute. They
then went to the applicant and informed him that
they had an
altercation but had since forgiven each other. The applicant noted
their arrangement.
[5]
The next
day, 23 July 2013, Mr Davhana called Messrs Ndaba and Mpokotya to his
office in order to attend to the complaint. They
informed him that
they had resolved their dispute and there was no need for his
intervention. He was taken aback by the turn of
events. He requested
that their union shop steward, Mr Madondo, be called in. Mr Madondo
confirmed that the dispute between Messrs
Ndaba and Mpokotya was
indeed resolved and there was no need for the meeting. Mr Davhana
testified that he was never given the
details of the agreement that
resolved the dispute. Mr Madondo only told him that it was resolved
with the assistance of a senior
person whose identity he did not
revealed.
[6]
Mr Davhana
requested Messrs Ndaba and Mpokotya to submit statements of what
transpired and that Mr Ndaba apologised and Mr Mpokotya
accepted his
apology. He testified that he wanted proof that the dispute was
indeed settled so that in future he would not be accused
of not
attending to the complaint. However, no statements were ever
submitted.
[7]
On 11
September 2013, Mr Ndaba was charged and found guilty of the same
incident that was allegedly resolved. A document purporting
to be an
agreement between Messrs Ndaba and Mpokotya was submitted in
mitigation of the sanction. Mr Davhana objected to the admission
of
the document and ultimately it was not admitted. Mr Ndaba was
accordingly dismissed. It is common cause that the alleged agreement
was authored by Mr Madondo, who represented Mr Ndaba during his
disciplinary enquiry. It was typed on 11 September 2013 and backdated
to 22 July 2013, stating that:
‘
Mr
Themba Ndaba and Ntsikelelo Mpokotya
We
would like to apologise to the situation that happened on 19/07/2013.
On 22/07/2013 we decided to involve our union representative
Mr Barry
Madondo and the two elders that we work with Mr Mogajane and Mr
Mofokeng unfortunately our line manager was not at work
he was
engaged with work related matters somewhere, as we wished to involve
him but fortunately we managed to involve someone who
is very
professional in assisting employees in all difficult situations, Mr
Ali Moeketsi the EAP (Employee Assistant Programme
Manager)
The
whole matter was resolved and closed at that platform. Mr T Ndaba and
Mr N Mpokotya are very happy the way the matter was handled
…
and would like to continue working together with peace and harmony.’
[8]
All the
people mentioned in the agreement appended their signatures with
their names and date, which was as 22 July 2013. What is
interesting
is that Messrs Mogajane and Mofokeng’s names and the date are
hand written but still the date is reflected as
22 July 2013.
[9]
The
applicant disavows involvement in any collusion to mislead Mr Ndaba’s
disciplinary hearing by creating an impression that
the complaint by
Mr Mpokotya had been resolved on 22 July 2013. He testified that he
did not check the date as his focus was on
the contents of the
document.
Review
test
[10]
Tersely
put, the review test as postulated in
Head
of the Department of Education v Mofokeng
,
[2]
is that where an arbitrator misdirects him or herself by ignoring
material facts, the award will be reviewable if the distorting
effect
of this misdirection was to render the result of the award
unreasonable. However, the arbitrator must be shown to have diverted
from the correct path in the conduct of the arbitration and as a
result failed to address the question raised for determination.
[11]
The
application is hinged on several grounds of review. However, I deem
it expedient to deal only with the following:
11.1.
The
arbitrator committed a gross irregularity and/or misdirected himself
in that he failed to appreciate the fact that the entire
evidence
before him did not point to gross violation of the third respondent’s
rule and/or regulations; a conduct which,
if proven, could have
attracted a sanction of dismissal.
11.2.
The
arbitrator committed a material error of law in that he failed to
properly apply his mind to the facts and submissions which
a
reasonable arbitrator would have taken into account in making a
decision.
11.3.
The second
respondent exceeded his powers in handing down the sanction without
making reference to mitigating and/or aggravating
circumstances of
the sanction.
Evaluation
[12]
There is no
merit in the applicant’s assertion that dishonesty is not a
gross misconduct in terms of the third respondent’s
Disciplinary Code and Procedure (Code). Clause 6.6.3 of the Code
clearly stipulates that submitting a false report or making false
entries on documents or dishonesty are dismissible offences.
[13]
Also, the
applicant’s censure of the arbitrator’s analysis of
evidence is unwarranted. The applicant himself testified
that he
never participated in a meeting to resolve the dispute between Messrs
Mogajane and Mofokeng but they informed him that
they had resolve
their dispute, a fact he noted. In my view, it is unfathomable that
the applicant, who in his own words missed
the fact the agreement was
backdated because his focus was on the contents, appended his
signature when the contents incorrectly
suggests that he was part of
the meeting and facilitated the resolution of the dispute between
Messrs Mogajane and Mofokeng. The
applicant was not the immediate
supervisor of Messrs Mogajane and Mofokeng and had nothing to do with
issues of discipline.
[14]
It is also
common cause that the applicant attended Mr Davhana’s Letsima
(a unit meeting between supervisors and their subordinates),
that was
held the morning, a day after the dismissal of Mr Ndaba. In that
meeting, the applicant criticised the black supervisors
for not
protecting fellow black employees and for dismissing them willy-nilly
when their white counterparts were protecting white
employees.
[15]
According
to Mr Davhana, it was the applicant’s conduct during the
Letsima meeting that made him suspicious. He then recalled
that the
applicant was a party to the agreement that had been presented during
Mr Ndaba’s hearing. He confronted Messrs Ndaba,
Mogajane and
Mofokeng and they denied that there was ever a meeting to resolve the
dispute as alleged in the agreement. Messrs
Mogajane and Mofokeng
told him that they were told by Mr Madondo to sign the document and
backdate it. This evidence was never
challenged.
[16]
Accordingly,
the arbitrator correctly found that the applicant was disingenuous
when he signed the agreement.
[17]
The
mitigating circumstances would not have assisted the applicant since
he was found guilty of dishonesty, a serious misconduct.
I agree with
the submission by counsel for the third respondent that the applicant
was a senior employee and ought to have been
well-advised of the
implications of his role when he signed a misleading document.
[18]
Confronted
with the issue of the breakdown in the trust relationship occasioned
by an employee's dishonest misconduct, the LAC in
Impala
Platinum Ltd v Jansen and Others,
[3]
referring to
G4S
Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others
with
approval, stated:
‘
[19] …an ‘
employment
relationship by its nature obliges an employee to act honestly, in
good faith and to protect the interests of the employer.
The high
premium placed on honesty in the workplace has led our courts
repeatedly to find that the presence of dishonesty makes
the
restoration of trust, which is at the core of the employment
relationship, unlikely
.
Dismissal for dishonest conduct has been found to be fair where
continued employment is intolerable and dismissal is “a
sensible operational response to risk management”’.
(Emphasis added)
[19]
Pertinently,
with regard to remorse, the LAC also endorsed the judgment of
Schwartz
v Sasol Polymers and Others
,
[4]
where it was stated:
‘
While I agree … that the
lack of remorse shown by appellant is relevant,
even
if genuine remorse had been shown by him, this would only have been a
factor to be considered in his favour in determining
sanction and
would not have barred his dismissal, remorseful or not, having regard
to the seriousness of the misconduct committed
.’
(Emphasis added)
Conclusion
[20]
It follows
that the award is reasonable and unassailable. The review application
stands to be dismissed. I am disinclined to award
costs against the
applicant as it will be inequitable.
[21]
In the
premises, I make the following order:
Order
1.
The review
application is dismissed.
2.
There is no
order as to costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Ms NN Zulu
From: Kgokong
Nameng Tumagole Attorneys
For
the third respondent:
Advocate
X Matyolo
Instructed
by: Maserumule
Attorneys
[1]
Act 66 of 1995 as amended.
[2]
[2015] 1 BLLR 50
(LAC) at paras 30 -
33; Subsequent to
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA) and
Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[2014]
1 BLLR 20 (LAC).
[3]
(2017) 38 ILJ 896 (LAC) at para 19.
[4]
Supra
,
reported at (2017) 38 ILJ 915 (LAC).