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[2018] ZALCPE 37
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Member of the Executive Council Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others (PR 01/2017) [2018] ZALCPE 37 (22 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PR 01/2017
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF HEALTH, EASTERN CAPE
Applicant
and
THE
PUBLIC HEALTH AND SOCIAL
DEVELOPMENT
SECTORAL BARGAINING COUNCIL
First Respondent
ARBITRATOR
RAYMOND JONATHAN
N.O
Second
Respondent
NONKQUBELA
CARVIE KULA
Third Respondent
Heard:
7 February 2018
Delivered: 22 November 2018
JUDGMENT
TLHOTLHALEMAJE,
J.
Introduction:
[1] The applicant
seeks an order reviewing and setting aside the arbitration award
issued by the second respondent (Arbitrator)
dated 15 December 2016.
In the award, the Arbitrator had found that the dismissal of the the
third respondent (Ms. Kula)
by the applicant was substantively and
procedurally unfair. The Arbitrator ordered that Kula should be
reinstated with backpay
in the amount of R1 666 666.70.
Preliminary
issues:
[2] Other than
opposing the review application, an issue was raised on behalf of
Kula surrounding the late filing of the transcribed
record of the
arbitration proceedings. According to Kula, the delay in filing the
record was about three months, and no request
for an extension was
sought either from her attorneys of record or from the Judge
President of this Court as contemplated in the
provisions of clause
11.2.3 of the Court’s Practice Manual
[1]
.
It was contended that in the absence of an application to reinstate
the review application upon it having been deemed withdrawn,
the
application for condonation (which it was also disputed that it was
launched) could not be determined, and that as a consequence,
the
review application ought to be dismissed.
[3] It is trite that
the provisions of the Practice Manual have a binding effect
[2]
.
Counsel for Kula referred this Court to
Sol Plaatjie Local
Municipality v South African Local Government Bargaining Council and
Others
[3]
in regards to the status of matters deemed withdrawn in accordance
with the provisions of clause 11.2.3 of this Court’s Practice
Manual, and I agree with the principles restated therein. I however
did not understand the import of that judgment or the message
in
Ralo
, to be that it was a
requirement
to file two
separate applications,
i.e.
the application to reinstate the
review application, and application for condonation in respect of the
late filing of the record
were envisaged, nor did I understand the
judgments to imply that the court’s discretion when confronted
with such matters
is obliterated. As stated in
Samuels
, this
Court’s discretion in interpreting and
applying the provisions of the Practice Manual remains intact,
depending on the facts
and circumstances of a particular matter
before the court.
[4] Where the record
of proceedings is filed outside of the 60 days’ period, and the
review application is deemed to be withdrawn
on account of an
extension not having been sought or granted, it would not only be
onerous, but also defeat the objectives of an
expeditious resolution
of disputes, to first require the defaulting party to make an
application to reinstate the review application,
which the court may
or may not grant, and where granted, to thereafter seek condonation
for the late filing of the record.
[5] Even if a
separate application for reinstatement of the review application was
a procedural requirement, (Something which the
Practice Manual is
silent on) ordinarily, such an application in these circumstances
would essentially be akin to an application
for condonation, because
central to the issue is the late filing of the record. Essentially
the same objective can be achieved
in a single application for
condonation
[4]
,
which can in its Notice of Motion, incorporate a prayer for
reinstatement of the review application. To therefore require a
defaulting
party to launch two applications designed to achieve the
same objective,
viz
, a reinstatement of a matter and
condonation for the late filing of a record is a big ask, and this
Court cannot countenance a
duplication of processes which would
unnecessarily burden its already congested motion roll.
[6] It is
appreciated that in this case, the applicant’s application for
condonation does not incorporate a prayer for reinstatement
of the
review application. However, given the circumstances of this case and
the discretion enjoyed by this Court in such matters,
and further in
the light of what has been stated above, I see no reason why if
condonation is granted,
ipso facto
, the review application
cannot considered to be properly before the Court.
The condonation
application:
[7] In the founding
affidavit to the condonation application, MM Govender, the Senior
State Attorneys averred the following;
7.1 The arbitration
award was issued on 15 December 2016, and the review
application was timeously launched on 17 January 2017.
7.2
The first
respondent (PHSDSBC) couriered the record on 17 January 2017.
When the written record was uplifted, a copy
was then couriered to
Kula’s attorneys of record on 17 February 2017.
7.3 The Registrar of
the Court issued a directive to the applicant on 24 January 2017
advising it of the availability
of the disc with the recording of the
arbitration proceedings.
7.4 Upon the
applicant forwarding the disc to the transcribers, it was advised by
the latter on 3 February 2017 that one
of the disc could
not be transcribed as it was faulty. Correspondence from the state
attorneys’ office subsequently followed
to PHSDSBC between
February and March 2017 with a view of securing another copy.
The sixty-day time limit for the filing of
the record expired on
26 April 2017.
7.5 In the midst of
attempting to secure another disc to be transcribed, Kula obtained a
warrant of execution to enforce the award,
resulting in the applicant
approaching the court on two occasions on an urgent basis to stay the
execution. Orders in that regard
were granted by this Court on 10 and
12 May 2017.
7.6 On
24 April 2017, a letter of demand was despatched to the
PHSDSBC in respect of the outstanding disc, which was ultimately
made
available in May 2017. It was then sent to the transcribers on
16 May 2017. Notices in terms of Rule 7A (8)
were served
and filed on 29 June 2017.
7.7 Govender further
averred that there was a lapse between 3 and 18 July 2017
when her secretary went on leave without
having couriered the record
to Kula’s attorneys of record, but that this was done on
19 July 2017 upon her return
from leave.
7.8 On 20 July 2017,
Kula’s attorneys of record advised the applicant that the
review had lapsed, and the application
for condonation was filed on
16 October 2017.
7.9 Govender further
averred that the review and written record were timeously served, and
that a delay in serving the transcribed
record was purely an
administrative oversight on her part. She further contended that at
no stage was an objection to the late
filing of the transcribed
record registered, nor was any notice of an irregular step filed.
7.10 Govender
further averred that Kula would not suffer any prejudice should
condonation be granted, and that the main review enjoyed
excellent
prospects of success in that on the grounds set out for review, the
decision of the Arbitrator was not one which a reasonable
decision
maker could have arrived at.
[8] The Labour Court
enjoys a discretion when deciding whether to condone the late filing
of the record of arbitration proceedings.
In the exercise of that
discretion the court must consider a number of factors including: the
degree of delay and the reasons or
explanation for the delay; the
prospects of success on the merits of the main application; and the
prejudice that the parties will
suffer should condonation be granted
or refused. Ultimately the question is whether it is in the interests
of justice to grant
the condonation
[5]
.
[9] In the light of
the explanation proffered for the delay, it would in my view be
iniquitous to simply dismiss the review application
as contended for
on behalf of Kula. It is appreciated that the applicant neither
requested an extension of time from Kula’s
attorneys nor
approached the Judge President of this Court to seek an indulgence.
However, it is apparent from the averments made
in seeking
condonation that this is not one of those cases where the applicant
had folded its arms and did nothing in ensuring
that the record was
timeously filed and served.
[10] The delay in
filing the record was three months, which is indeed excessive,
albeit
not in the extreme. There were lapses as Govender had conceded, but
the explanation proffered in regards to the other delays are
in my
view more than adequate. Furthermore, given the circumstances that
led to the dismissal of Kula and the grounds set out for
a review as
shall be dealt with below, the applicant does indeed enjoy some
prospects of success, and it cannot be said that overall,
Kula will
be severely prejudiced by the granting of condonation and
reinstatement of the matter. On the whole, I am satisfied that
upon a
conspectus of the relevant factors to be taken into account, the
interests of justice dictates that the late filing of the
record by
the applicant be condoned.
[11] A further
preliminary point that needs to be disposed of quickly relates to the
applicant’s contention that Kula’s
answering affidavit
was filed and served out of time. The answering affidavit was filed
on 14 September 2017 when the
Notice in terms of Rule 7A
(8) was filed on 29 July 2017. The applicant had belatedly
objected to the late filing of
the answering affidavit
[6]
,
and this issue was not pursued with any vigour in any event.
The review:
[12] Kula was
employed by the applicant with effect from 1 November 2014 as
Chief Director: Priority Health Programs, and was
based at the
applicant’s head office in Bisho. She was by virtue of her
position, a Senior Manager in terms of the provisions
of the Public
Service Act of 1994. She was dismissed on 10 May 2016
following upon a disciplinary enquiry into allegations
of misconduct
related to;
1.
“
Misrepresentation
in that you claimed to have a higher educational qualification than
the one you submitted. You obtained a tertiary
degree (B. Cur)
sometime in 1991 from Unisa and you failed to provide proof of having
obtained such qualification.
2.
You falsified your CV in
that you claimed in your CV that you had worked as a Deputy Director
in the Northern Cape Province from
1
st
September 1995 to 31 December 2006. However, the persal system
shows that your appointment was terminated on February 2005”
[13] Kula occupied
the post that was advertised in June 2014. Prior to then, she
was employed as a Deputy Director HIV/AIDS
and TB Department in the
Gauteng Department of Health. The requirements for the post were
inter alia
;
i. A relevant
Bachelor’s Degree or equivalent in Public Health Management or
equivalent qualification.
ii. A minimum of 6
years proven managerial experience in a health sector environment at
Senior Management level.
The arbitration
proceedings:
[14] Following her
dismissal, Kula had referred a dispute to the PHSDSBC, and when
conciliation failed, the dispute proceeded to
arbitration before the
Arbitrator. Both parties were represented by counsel at those
proceedings. They had also filed statements
of claim and defence. The
applicant called two witnesses to testify on its behalf. Kula elected
not to testify at those proceedings
but however called a witness on
her behalf. This was despite the fact that as can be gleaned from the
transcribed record, various
versions were put to the applicant’s
witnesses by her counsel during cross-examination, which it was
contended she would
testify to.
[15] The evidence of
Ms Khunjelwa Livi, the applicant’s Deputy Director: Recruitment
and Selection (Head Office), was essentially
that the National
Intelligence Agency (NIA) conducted a verification and security
clearance of all three shortlisted candidates
for the post. The Human
Resources Department of the applicant was also to conduct its
reference checks and verification of qualifications
of the candidates
through the South African Qualification Authority (SAQA). At the time
of the interviews and after the number
of candidates was reduced to
three, the NIA had already completed its verification process. The
verification by SAQA and the applicant’s
HR was still
outstanding.
[16] The interviews
were nonetheless completed without the verification of Kula’s
academic credentials. Kula was issued with
a letter of appointment on
8 October 2014, in which she was
inter alia
advised
that should it be found that the information on her CV was incorrect,
the offer could be withdrawn.
[17] According to
Livi, it was only in November 2014 when Kula assumed her
position that the discrepancies in her CV in regards
to her service
period at Northern Cape and Gauteng surfaced. Livi further testified
that at no stage did Kula submit a certificate
in respect of a B Cur
degree which she claimed to have obtained in her CV.
[18] Another
witness, Mr Bongani Lose, the Employee Relations Manager, had
testified in regards to the process leading to the disciplinary
enquiry. He had represented the applicant at that enquiry and
testified that Kula had pleaded guilty to both charges at the
enquiry.
Mr Lose had reiterated that the dismissal was due to the
fact that Kula had claimed that she had a B. Cur degree which was of
a
higher status than the BA Nursing Science degree, even though she
did not know what the SAQA grading of the two qualifications was,
and
further that she had concede that the dates of her employment at
Northern Cape Department of health were incorrect.
[19] Upon Kula’s
PERSAL information being transferred to the Eastern Cape in
November 2014, it was then discovered that
there were
discrepancies in her employment history. The available information
was that Kula terminated her employment with the
Northern Cape
Department of Health in 2005, and was re-appointed in a similar
department in the Gauteng Province on 6 January 2007.
Furthermore, despite indicating in her CV that she had a (Bachelor of
Science/B. Cur degree (4 year degree), she had only obtained
a BA in
Nursing Science (Three year degree). Mr Lose further testified that
he was not aware that Kula’s corrected CV at
the time of the
disciplinary hearing.
[20] Under
cross-examination, Mr Lose could not dispute it when it was put to
him that Kula had merely admitted to making omissions
in regards to
the accuracy of the period of employment at Northern Cape Health
Department, and that this was merely an admission
of error, and not a
plea of guilt. Mr Lose further conceded that Kula, in compliance with
the requirements of the post had the
necessary Bachelor’s
degree (Bachelor of Arts in Nursing Science)
[7]
.
The issue however according to Lose was that Kula had claimed in her
CV to have a B. Cur, when she had a BA in Nursing Science.
He could
not however attest to the ranking of the two degrees, even though he
was made aware that the two were not the same, as
a degree in B. Cur
required four years to complete, whilst BA in Nursing Science
required three years to complete. In regards to
the second charge,
Lose conceded that the advertised post also required a candidate to
have six years’ experience.
[21] As already
stated, Kula had not testified at the arbitration proceedings, but
had called Dr. Patrick Maduna as her witness.
Maduna is a Deputy
Director General for Clinical Management Services in the applicant.
Kula reported to him directly.
[22] Maduna was part
of the interviewing panel that had accepted that the HR department
had conducted the verification process prior
to shortlisting of
candidates, when in fact that was not the case. The panel had
concluded that all three candidates met the requirements
of the post.
In regards to the requirement of years’ experience at senior
management level 13 (Director level), the panel
had also concluded
that based on the candidates’ experience, Kula had in excess of
15 years’ experience in the field,
and was accordingly
recommended.
[23] According to
Maduna, the qualifications of the candidates were compared to the
requirements of the post in the advert, and
had looked at the
candidates information contained in the CVs as compared to the
requirements in the advert. Two of the candidates
had PhD degrees,
and even though Kula did not have a PhD degree, she was a qualified
midwife with university qualification. Maduna
denied that Kula had
misrepresented her qualifications in her CV, and further testified
that as a panel, they could not at the
time establish whether Kula’s
history and dates of employment as contained in her CV were correct
or not. He had accepted
that she had worked as a Deputy Director
before, and had 15 years’ experience in the public service.
[24] In regards to
the different academic degrees, Maduna had testified that the panel
did not compare degrees, as the advert only
required a Bachelors’
degree. He had testified that Kula had not at any stage, given an
impression that she was claiming
a higher degree as she was not asked
that question. He further testified that in his capacity as
chairperson of the Academic Governance
Committee of all the three
universities in the Eastern Cape, which was tasked with developing
curricular in the health field, he
was aware that the admission
requirement in BA Nursing Science was three years General Nursing
Diploma, and one year certificate
in Midwifery, and took an
additional three years to obtain. That degree was replaced with a B
Cur, which only required a matric
certificate for admission and took
four years to obtain. Maduna had testified that there was a move
towards the latter admission
requirements as it was found that
graduates with B Cur degrees were not sufficiently trained as
compared to those with BA Nursing
Science degrees, who had more
practical experience.
The Award:
[25] In regards to
the first charge, the Arbitrator made the following conclusions;
a) It was common
cause that Kula had acknowledged that she had stated in her CV that
she had obtained a B Cur in Nursing Science
in 1991, whereas she had
only obtained a BA in Nursing Science;
b) Having referred
to a document (‘H1), it should be found that despite Kula
having indicated in her CV that she had obtained
a B. Cur in Nursing
Science, there was no such a degree, as it was either a graduate
obtained a B Cur Nursing Science or BA in
Nursing Science. It was
therefore incorrect as alleged by the applicant, that Kula had only
claimed to have a B Cur degree,
as the testimony of Lose (Applicant’s
Manager: Employee Relations (Deputy Director), was that she was
advised that a B Cur
degree was of a higher status than a BA Nursing
Science.
c) Having regard to
the internet printouts of qualifications presented by the
Universities of Pretoria, UNISA and Nelson Mandela
Metropolitan
(NMMU), and from those printouts, only UNISA had indicated that BA in
Nursing Science was pitched at NQF level 6,
whilst NMMU did not
indicate the NQF level of the B Cur degree.
d) The Arbitrator
further lamented the fact that the applicant had not submitted
feedback from SAQA relating to Kula’s qualifications,
since the
only way of establishing whether a B Cur degree was higher than a BA
in Nursing Science degree would have was a determination
of the NQF
level of both degrees.
e) The applicant had
not indicated what the difference was between the two degrees, and
further that there was no evidence to support
Lose’s version
that the one degree was higher than the other.
f) Kula despite
indicating that she had a B Cur in Nursing science instead of BA in
Nursing Science was
confused
about the qualifications, and the
applicant had not established on a balance of probabilities that Kula
had claimed to have a higher
degree than the one she had obtained, or
that a B Cur degree was of a higher status than BA in Nursing
Science.
[26] In regards to
the second charge, the Arbitrator concluded that;
a) Kula had
indicated in her CV that she had worked at the Department of Health
in the Northern Cape from 1 September 1995
until
31 December 2006, when in fact she was employed between
1 September 1995 until 7 September 2005
b) The Commissioner
took into account that in a document marked ‘A34’ placed
at the arbitration proceedings, Kula had
contended that she had made
a
mistake
in regards to the dates.
c) It should be
accepted that Kula had mixed up the dates of her employment at the
Northern Cape Department of Health since it was
that employment took
place a long time ago;
d) Kula as a state
employee was not an external appointment but was merely promoted from
the position of Deputy Director in Gauteng
health Department to Chief
Director in the Eastern Cape, meaning that she was merely transferred
from Gauteng to Eastern Cape.
e) The applicant was
required to have verified the information contained in the
candidates’ CVs before shortlisting and appointment,
and it had
also established that the dates were incorrect when Kula assumed the
position in October 2014.
f) Kula was afforded
an opportunity to correct her CV and thereafter the employment
relationship had continued. The applicant could
have taken steps at
the time but had not done so, and thus there was no basis to conclude
that the trust relationship had broken
down.
g) Since Kula was
not an external candidate but was promoted, the applicant had
information that could have disqualified her from
shortlisting but
had not done so. Thus on the strength of
Eskom Holdings Ltd v
Fipaz & others
[8]
,
it could not be concluded that Kula had made a misrepresentation
since the applicant was aware of that information.
h) Since the
applicant’s Human Resources Department failed to conduct a
verification exercise in the light of the information
at its
disposal, it could not rely on the terms of the letter of appointment
that such appointment could be withdrawn
[27] In regards to
the sanction of dismissal, the Arbitrator concluded that;
a) The applicant had
not called any witness to testify on the issue of a broken trust
relationship;
b) Kula’s
witness and supervisor, Dr. Mabusa had testified that he trusted her
and was prepared to work with her in the future,
and that this
evidence was not refuted
c) Even if he
(Arbitrator) was wrong in his conclusions that Kula did not commit
any misrepresentation or falsification of her CV,
the applicant had
not established that a trust relationship was broken since the
employment relationship had continued for 18 months
after her
appointment or promotion.
d) The dismissal was
also substantively unfair in that even if Kula was guilty of the
second charge, a warning would have been more
appropriate.
[28] The Arbitrator
further concluded that the dismissal was also procedurally unfair, as
a junior officer was appointed as a presiding
officer of the
disciplinary enquiry. In the same vein however, the Arbitrator
refused to award Kula any ‘compensation’
in regards to
procedural unfairness as she could have asked the presiding officer
to recuse himself, and only if there was a refusal
in that regard
would compensation have been ordered.
The grounds of
review, the submissions and evaluation:
[29] Central to the
applicant’s grounds of review is that the Arbitrator committed
a series of gross irregularities and caused
a miscarriage of justice
as a result of fundamental flaws in the adjudication of the matter,
which consequently had the effect
that it had not received a fair
trial. To the extent that the applicant complained of irregularities
on the part of the Arbitrator
which it was alleged had prevented a
fair trial of issues, it was held in
Head of Department of
Education v Mofokeng
[9]
that;
“…
Provided
the right question was asked and answered by the arbitrator, a wrong
answer will not necessarily be unreasonable. By the
same token, an
irregularity or error material to the determination of the dispute
may constitute a misconception of the nature
of the enquiry so as to
lead to no fair trial of the issues, with the result that the award
may be set aside on that ground alone.
The arbitrator however 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.”
[30] As with any
dismissal for misconduct, the starting point is a determination of
the reason or nature of the allegations that
the dismissed employee
had to answer to, and whether the employer had on a balance of
probabilities, discharged the onus placed
on it to demonstrate that
indeed the dismissal was substantively and procedurally fair. In this
regard, and in determining whether
the Arbitrator’s award is
reviewable, this Court must ask whether (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?
[10]
[31] In line with
the above, it is not clear on what basis it can be said that the
Arbitrator failed to afford the parties an opportunity
to have their
say in respect of the dispute, and any suggestion to the contrary
ought to be rejected. I have gone through the record
of the
transcribed proceedings, and the manner with which the Arbitrator
conducted the arbitration proceedings cannot be faulted.
[32] The problems
however with the Arbitrator’s award is whether he had
identified the dispute he was required to arbitrate,
whether he
understood the nature of the dispute he was required to arbitrate,
whether he dealt with the substantial merits of the
dispute, and
whether he arrived at a reasonable outcome.
[33] It is trite
that arbitration proceedings under the auspices of Bargaining
Councils or the CCMA are
de novo
[11]
.
This however does not imply that the arbitrator must ignore the
record of the internal proceedings (if there is any) when making
a
determination of whether the dismissal was fair or not
[12]
.
[34] A dismissed
employee may at the arbitration proceedings, elect not give evidence
in his own defence. Since both parties were
represented by counsel at
the arbitration proceedings, it is safe to assume that the election
made by Kula not to testify was a
conscious one, specifically since
her rights were explained to her by the Arbitrator at the
commencement of the proceedings
[13]
.
The flipside of this election however is that Kula must live with its
consequences. This is so in that it has been said that in
an unfair
dismissal case relating to misconduct, the ‘evidentiary burden’
starts with the employer. However, once the
employer had provided
prima facie
proof of the misconduct as alleged, the
‘evidentiary burden’ shifts to the employee to prove his
own defence. If the
employee then fails to put up a defence or fails
to prove his defence, the employers
prima facie
proof of
misconduct becomes conclusive proof and the employer has then
discharged the ‘overall onus’ that always rested
with
it
[14]
.
[35] From the onset,
it is safe to conclude that the charges against Kula in this case
were relatively uncomplicated. These pertained
to whether Kula had
misrepresented that she had ‘higher educational qualifications’
than the one she had submitted
in that she had represented that she
had a B Cur in Nursing Science degree obtained in 1991 from UNISA,
but had failed to provide
proof of having obtained such
qualification. The second charge related to whether she had falsified
the information in her CV related
to her period of employment in the
Northern Cape, and whether it was between September 1995 and
31 December 2006, or
whether it was terminated on
7 February 2005.
[36] It was not in
dispute that Kula had listed amongst other qualifications in her CV,
a B. Cur in Nursing Science degree
obtained from Unisa in 1991, nor
was it in dispute that she had in fact, obtained a BA in Nursing
Science. It was further not in
dispute that she had indicated her
period of employment at Northern Cape as being between September 1995
and 31 December 2006,
instead of September 1995 to 7 February 2005.
[37] Kula’s
letter of appointment had warned her that if the information on the
CV was found to be incorrect, the offer of
employment could be
withdrawn. There were no time limits to this ‘provisional
appointment’, and once at any stage of
the appointment it was
found that the information contained in her CV was indeed incorrect,
nothing prevented the applicant in
this case from acting on that
information. This is so in that the position she occupied would be
deemed (unless the contrary is
shown), to have been secured by the
making of false statements, which in turn constitutes dishonesty that
would underpin the substantive
fairness of a dismissal.
[38] The contention
therefore on behalf of Kula that she was only charged with
misrepresentation and not dishonesty is without merit.
Any
misrepresentation made in a CV if proven amounts to dishonesty. The
conclusions of the Arbitrator that Kula should effectively
be
exonerated from the charges as the applicant had not done its own
verification prior to shortlisting, or that it had not provided
any
report from SAQA in respect of the different qualification/degrees,
or that it had not acted against Kula for 18 months, are
equally
unreasonable. This is so in that the letter of appointment
specifically warned Kula of the consequences of incorrect information
that may be obtained subsequent to the appointment.
[39] It is within
the context of the established principles in regards to the failure
testify that a few points needs to be made
in regards to the
Commissioner’s conclusions related to certain aspects of the
evidence Kula did not testify to despite certain
versions being put
to the applicant’s witnesses. In this regards, it is worth
repeating that first, as apparent from the
‘record’ of
the internal disciplinary enquiry, no evidence was led at those
proceedings in that once Kula had entered
her plea (whether she had
pleaded guilty to the charges or had simply conceded that she had
made errors in her CV is irrelevant
for now), the chairperson had
asked her and Lose who represented the applicant, to make written
submissions in regards to mitigating
and aggravating factors. The
second issue is that statements of case and defence are not in
affidavit form as were placed
before the Arbitrator.
[40] It was put to
Lose during cross-examination that Kula had not pleaded guilty to the
charges at the disciplinary enquiry, and
that all that she did was to
admit to having made a mistake in her CV, or having been confused
with the dates of her employment
in Northern Cape and Gauteng. In her
submissions in regards to mitigating factors, Kula had stated
that when she presented
all her documents in respect of the post, it
was not her intention to misrepresent herself, and that the errors
that were subsequently
identified were genuine errors, and she had no
intention to misrepresent her qualifications or service
experience.
[15]
.
The Arbitrator for some reason agreed that the Kula had made an
error or was confused in relation to the details of her CV.
That
conclusion however came about without hearing from her in regards to
the details of that ‘error’ or ‘confusion’.
[41] The
Arbitrator’s conclusion as above is clearly unsustainable for a
number of reasons. It points to the failure to identify,
understand
and deal with the nature of the dispute before him. The Arbitrator’s
conclusions further failed to take into account
the principles stated
in
Woolworths,
where a
prima facie
case had been
made out by the employer, and where no attempt was made to put up a
defence against that
prima facie
case.
[42] Central to the
determination of the dispute was whether Kula had made a
misrepresentation in her CV, by claiming to have a
B Cur Nursing
Science degree, when she did not, and whether she had misrepresented
her employment period at the Northern Cape Health
Department. It can
be accepted that on the evidence of Maduna, the panel was satisfied
that any bachelor degree in the field was
sufficient, and this
required of the applicant to
inter alia
, demonstrate that
indeed a higher educational qualification was required, and further
that a B Cur Nursing Science degree was higher
than a BA Science
degree. Sadly, the evidence of both Livi and Lose failed to shed any
light in that regard.
[43] In respect of
the second charge, Maduna’s evidence was that the post required
6 years of experience in the field at senior
management level.
Overall, Kula had 15 years (minus the one year in relation to the
period at Northern Cape Health Department).
Maduna had further
testified that other considerations were decided and agreed upon in
making an appointment since all the other
candidates met the
requirement of six years’ experience. In essence, the applicant
could not at the arbitration proceedings,
establish that the
differences in the actual period of service at Northern Cape Health
Department as compared to what was stated
in the CV had a bearing on
the appointment.
[44] The Arbitrator
may have been swayed by the above considerations, but that should not
have been the end point. This is so in
that the basis of the charges
against Kula remains what was stated in her CV, which the applicant
deemed as misrepresentation.
When such misrepresentations are made in
CVs by applicants for appointments, this Court and the Labour Appeal
Court have displayed
little or no sympathy for the accused employees.
The authorities referred to by Myburgh AJ in In
LTE Consulting
(Pty) Ltd v Commission for Conciliation, Meditation and Arbitration
and Others
[16]
are in point, as they demonstrate the Courts’ approach in
this regard.
[45] This brings me
back to the question of Kula’s failure to testify. It is
accepted that there is no obligation on an employee
to testify if the
employer has not made out a case of misconduct. If however a
prima
facie
case is made out by the employer, and employee takes a risk
if no defence is put up.
[46] In this case,
even if the conclusions on the evidence indicated that Kula met the
requirements of the post, and the Arbitrator
was persuaded that the
information contained in her CV were mere errors, mistakes or a
result of confusion as was contended on
her behalf, in line with
Department of Home Affairs & another v Ndlovu &
others
[17]
as
referred to by Myburgh AJ in
LTE Consulting
, the fact that a
misrepresentation in the CV might very well not have induced an
appointment to the post, or was discovered long
after the
appointment, does not detract from the fact of the employee’s
initial dishonesty, as it is that dishonesty as contained
in the CV
that is ultimately what underpins the substantive fairness of the
dismissal of the employee.
[47] It being common
cause that the information in Kula’s CV was incorrect, and thus
the applicant having established
prima facie
proof of
misconduct, the ‘evidentiary burden’ shifted to Kula to
prove her own defence. Once she failed to put up a
defence or prove
her defence, the applicant’s
prima facie
proof of
misconduct became conclusive proof, and the applicant had then
discharged the overall onus.
[48] The import of
the above is that the obligation remained that of Kula to explain her
actions and why incorrect/untrue information
was put in her CV in the
first place. This was even more necessary in circumstances where no
oral evidence was led at the disciplinary
enquiry. Even if the
failure by Kula to testify at the disciplinary enquiry might have
been as a result of the approach of the
chairperson, the arbitration
proceedings nonetheless provided a prime opportunity to raise a
defence. By virtue of Kula’s
election not to testify, no
evidence was adduced to indicate what causes the alleged
errors/mistakes or confusion, or whether these
were pointed out
either at the stage of the interviews or voluntarily by her at any
stage prior to the appointment. On the contrary,
such information
came to light in November 2014, some-time after her appointment.
[49] Allegations of
misrepresentation in a person’s CV are not to be taken lightly,
and the onus is upon the employee to explain
how the incorrect
information found its way into a CV, and for the Arbitrator to make
an assessment on the probabilities as to
whether a sustainable
defence had been put up or not. In the absence of any defence, and to
the extent that in the applicant’s
view, what was contained in
the CV was a misrepresentation, that view should prevail.
[50] The Arbitrator
had further justified his conclusions and decision to reinstate on
the basis that the applicant for not adduced
any evidence of a
breakdown of the trust relationship with Kula. The Arbitrator in
reinstating Kula further relied on the evidence
of Maduna that a
trust relationship had not broken down. Again, the Arbitrator
misconstrued the test in this regard. It has since
been held that in
cases of misconduct, it is not always necessary to lead evidence
pertaining to a breakdown in a trust relations,
as the gross nature
of the misconduct, if proven, can on its own lead to a breakdown in a
trust relationship
[18]
.
[51] In this case,
the misconduct in question related to misrepresentation, which on its
own and given the circumstances of this
case, amounts to dishonesty.
Kula might have been reporting to Maduna, but the latter is not an
employer but is also an employee.
The issue of trust is between an
employer and employee, and irrespective of how Maduna had trust and
confidence in Kula, that was
irrelevant for the purposes of
determining whether the employment relationship could be restored.
[52] Information
that is put in a CV by a job candidate says a lot about him or her. A
prospective employer relies on that information
in making any
informed choices regarding candidates, on the basis that it is true
and correct. Any likelihood that the information
is or might be false
would lead to dire consequences. This is so in that it cannot be
expected of any employer to trust an employee
who starts or obtains
an appointment through falsehoods or misrepresentation. It is of no
consequence that Kula in this case was
a public official being
transferred from one province to another. The duty remained on her to
ensure that the information contained
in her CV was true and correct.
[53] Taking into
account all of the above and in consideration of the enquiry
stipulated in
Goldfields
, it ought to be concluded that it is
apparent that the Arbitrator clearly misconstrued the nature of the
enquiry, and/or undertook
the enquiry in a wrong manner, thus leading
to no fair trial of the issues. In essence, the Arbitrator diverted
from the correct
path in the conduct of the arbitration and as a
result, failed to address the question raised for determination,
which was whether
the applicant had discharged its onus of proving
the misrepresentations and falsification in Kula’s CV.
Ultimately, the Arbitrator
came to a conclusion that does not fall
within a band of reasonableness. The result thereof is that the
award ought to be
set aside.
[54] There is no
need to deal with the Arbitrator’s findings in regards to
procedural fairness of the dismissal as no relief
was granted in that
regards.
[55] Placed before
the Court was the record of the proceedings and all relevant
documentation, and in my view, and further in the
light of the
conclusions as above, no point will be served by remitting this
matter to be heard afresh. Accordingly, the Court
having had regard
to all that material is in a position to substitute the Arbitrator’s
award with its own order. I have further
had regard to the
requirements of law and fairness, and hold the view that a cost order
is not warranted in this case.
[56] Accordingly,
the following order is made;
Order:
1. The late filing
of the record of transcribed proceedings is condoned.
2. The arbitration
award issued by the second respondent under case number PSHS178-16/17
dated 15 December 2016 is reviewed,
set aside and
substituted with an order that;
‘The dismissal
of Nonkqubela Carvie Kula was fair’
3. There is no
order as to costs.
E.
Tlhotlhalemaje
Judge of
the Labour Court of South Africa
Appearances:
For the
Applicant:
I
Dala and K Mtshizana-Canca
Instructed
by:
State Attorney: Port Elizabeth
For the
First Respondent:
M Nduzulwana
Instructed
by:
Sithembele Zibi Attorneys Inc
[1]
Which provides;
“If
the applicant fails to file a record within the prescribed period,
the applicant will be deemed to have withdrawn the
application,
unless the applicant has during that period requested the
respondent’s consent for an extension of time and
consent has
been given. If consent is refused, the applicant may, on notice of
motion supported by affidavit, apply to the Judge
President in
chambers for an extension of time. The application must be
accompanied by proof of service on all other parties,
and answering
and replying affidavits may be filed within the time limits
prescribed by Rule 7. The Judge President will then
allocate the
file to a judge for a ruling, to be made in chambers, on any
extension of time that the respondent should be afforded
to file the
record.”
See
also
Ralo v Transnet Port Terminals and Others
[2015] 12
BLLR 123
at paras [10] and [11], where Van Niekerk J
held
that;
‘…
.
The plain and unambiguous wording of the practice manual is to the
effect that the applicant must be regarded as having withdrawn
the
review application.’
And,
‘
To
the extent that the applicant contends that he will suffer prejudice
on account of any application of paragraph 11.2.3 of the
practice
manual and that he will be deprived of his right to access to court
and to have his application fully ventilated, this
is simply not so.
The proper order, it seems to me, in circumstances such as the
present, is to strike the review application
from the roll. There is
no bar, either in the Rules of this court or the practice manual to
the applicant filing an application
in which he seeks to have the
review application reinstated, together with an application in which
condonation for the late filing
of the record is sought’
[2]
See
Rumba Samuels v Old Mutual
Bank
[2017] 7 BLLR
681
(LAC); (2017) 38 ILJ 1790, where it was held that;
“
[14]
The consolidated practice manual which came into operation on 2
April 2013 constitutes a series of directives issued by the
Judge
President over a period of time. Its purpose is,
inter
alia
, to provide access to justice by
all those whom the Labour Court serves; promote uniformity and/or
consistency in practice and
procedure and set guidelines on
standards of conduct expected of those who practise and litigate in
the Labour Court. Its objective
is to improve the quality of the
court’s service to the public, and promote the statutory
imperative of expeditious dispute
resolution.
[15] The practice manual is not intended to change or amend the
existing Rules of the Labour Court but to enforce and give effect
to
the Rules, the Labour Relations Act as well as various decisions of
the courts on the matters addressed in the practice manual
and the
Rules. Its provisions therefore, are binding. The Labour Court’s
discretion in interpreting and applying the provisions
of the
practice manual remains intact, depending on the facts and
circumstances of a particular matter before the court.
And,
“
[23]
…It must be emphasised that the Practice Directive, in
particular the provisions relating to archiving and retrieval
are
there to facilitate expeditious but fair adjudication of the
disputes in the Labour Court. The manual should not be used
to
enable a party to gain an unfair advantage over the other. In this
matter, the refusal of the application to retrieve the
file from
archives would mean that an employee who has served her employer for
a period of 26 years, who is not guilty of any
misconduct, and
elected to exercise her constitutional rights to fair labour
practise is dismissed at will through trumped up
charges by her
senior manager. That would indeed be a wrong message to send.
[3]
(PR192/15) [2017] ZALCPE 11 (13 June 2017), where it was held that;
“[24]
In casu
the Applicant has not filed the record within
the prescribed 60 day period and has not approached the Third
Respondent for consent
for an extension of time this. It follows
that the review application is deemed to be withdrawn.
[25]
In
Ralo v Transnet Port Terminals and
others (Ralo)
the Court accepted the legal definition
of ‘deemed’ as set out in the Namibian authority
of
Municipal Council of the Municipality of Windhoek v
Marianna Esau (LCA 25/2009, 2 March 2010)
where the Court
held that the word ‘deemed’ is considered to have a
conclusive effect. This Court concluded
by stating the
following:
“…The
plain and unambiguous wording of the practice manual is to the
effect that the applicant must be regarded as
having withdrawn the
review application”
[26]
In casu
the same fate meets the Applicant and the status
of the review application is ‘withdrawn’. In view of the
fact that
the review application is withdrawn, the alternative
relief sought by the Applicant cannot be granted.
[27]
There is however no bar, either in the Rule of
this Court or the Practice Manual to the Applicant filing an
application in which
it seeks to have the review application
reinstated. Logic dictates that the review should be reinstated and
be alive before the
late filing of the record could be condoned. An
application to have the review application reinstated could be filed
together
with an application in which condonation for the late
filing of the record is sought.
[28]
I accept that this application was an attempt to get the review
application back on track. The Applicant however should
have filed
an application wherein the order sought is for the review
application to be reinstated.
[29]
In casu
the Applicant sought condonation for the late
filing of a record without an application to reinstate the review
application. Condonation
for the late filing of a record cannot be
granted in respect of a withdrawn application.” (Citations
omitted)
[4]
See
MJRM Transport Services CC v
Commissioner for Conciliation, Mediation and Arbitration and Others
[2017] 1 BLLR 40
(LC); (2017) 38 ILJ 414 (LC) at para 17, where
it was held that;
“
By
all accounts, and to the extent that the Manual requires the
Applicant to apply to the Judge President for extension by way
of
notice of motion supported by an affidavit, and to serve such an
application, and further to the extent that answering and
replying
affidavits may be filed within the time limits prescribed by Rule 7,
it can only be inferred that the extension sought
can only be akin
to an ordinary application for condonation as Van Niekerk J
correctly pointed out in
Ralo.
There
is therefore no merit in the Third Respondent’s contention
that the application for condonation as in this case
is an irregular
step. An extension sought from the Judge President must be in the
form of an application for condonation”
[5]
Brummer v Gorfil Brothers Investments
(Pty) Ltd
[2000] ZACC 3
;
2000 (5) BCLR
465
;
2000 (2) SA 837
(CC) at para 3;
See
also
Ndlovu v S
2017 (10) BCLR 1286
(CC);
2017 (2) SACR 305
(CC) (15 June 2017)
at paras 22 – 23
;
Van Wyk
v Unitas Hospital (Open Democratic Advice
Centre as amicus curiae)
[2007] ZACC 24
;
2008 (2) SA
472
(CC)
at 477A-B;
SA
Post Office Ltd v CCMA
[2012] 1 BLLR
30
(LAC) at para [23], where it was stated that;
‘
In
my view, each condonation application must be decided on its own
facts bearing in mind the general criteria. While the rules
are
there to be applied, they are not inflexible but the flexibility is
directly linked to and apportioned in accordance with
the interests
of justice; prejudice; prospects of success; and finally, degree of
delay and the explanation thereof. The issue
of delay must be viewed
in relation to the expedition with which the law expects the
principal matter to be resolve
[6]
See Clause
11.4.2 of the Practice Manual,
which provides that;
‘Where
the respondent or the applicant has filed its opposing or replying
affidavits outside the time period set out in
the rules, there is no
need to apply for condonation for the late filling of such
affidavits unless the party upon whom the affidavits
are served
files and serves a Notice of Objection to the late filing of the
affidavits. The Notice of Objection must be served
and filed within
10 days of the receipt of the affidavits after which time the right
to object shall lapse.’
[7]
Page 253 of the Record
[8]
[2013] BLLR 327 (LAC)
[9]
[2015] 1 BLLR 50
(LAC); (2015) 36 ILJ 2802 (LAC) at para 33
[10]
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
[11]
See
County Fair Foods (Pty) Ltd v CCMA &
others
(1999) 20 ILJ 1701 (LAC), where it was
held that;
“The
decision of the commissioner as to the fairness or unfairness of the
employer’s decision is not reached with
reference to the
evidential material that was before the employer at the time of its
decision but on the basis of all the evidential
material before the
arbitrator. To that extent, the [arbitration] proceedings are a
hearing
de novo
.”
[12]
Palluci Home Depot (Pty) Ltd v Herskowitz and Others
[2015] 5
BLLR 484
(LAC) ; (2015) 36 ILJ 1511 (LAC) at paras [44] to [46]
[13]
Page 31 of the transcribed record, lines 3- 10
[14]
Woolworths (Pty) Ltd v CCMA & others
(2011) 32 ILJ 2455
(LAC) at par 34; See also
Klaasen v CCMA & others
[2005] ZALC 11
;
[2005]
10 BLLR 964
(LC) at paragraph
[26]
, where it was held that;
“[26]
In the employment law context, where there is evidence directly
implicating an employee in misconduct, or which is
adverse to his or
her version, such employee cannot afford to leave that evidence
unanswered. Although the commissioner would
not be obliged to accept
that evidence solely on the grounds that it was uncontradicted,
provided it is credible, it is unlikely
to be rejected if the
employee has chosen not to deny or contradict it. An employee’s
failure to testify will always strengthen
the case of the employer
(see Hoffmann & Zeffertt The South African Law of Evidence at
598- 599. Nevertheless, it is clearly
not an invariable rule that an
adverse inference be drawn or that the uncontradicted version should
stand. In the final analysis
the decision must depend upon the
circumstances of the litigation.
[15]
Page 211-212 of the ‘Written Record’
[16]
[2017] 12 BLLR 1259
(LC) ; (2017) 38 ILJ 2787 (LC), where it was
held that;
“[21]
That leaves the central controversy between the parties, namely
whether a reasonable commissioner could have found
the employee’s
dismissal substantively unfair. To my mind, the answer is
clearly “no”. Manifestly, the
employee was grossly
dishonest in misrepresenting that he is a chartered accountant. To
aggravate this grave misconduct, he also
lied about having a B.Com
and MBA, and showed no remorse whatsoever. This to the extent of
describing the company’s concerns
as being about “stupid
little things”. Dismissal was patently warranted.
[22]
I am fortified in my view that the commissioner’s decision was
unreasonable by three judgments of the LAC, which are
directly in
point. The first is
SA Post Office Ltd v Commission for
Conciliation, Mediation & Arbitration & others
(2011)
32
ILJ
2442 (LAC). The employee had misrepresented
that she had a driver’s licence in her application for
employment and
was dismissed for dishonesty. A CCMA commissioner
found her dismissal substantively unfair and reinstated her, with
the award
having been upheld on review by this court. But the LAC
reversed this court on appeal, with Waglay DJP (as he then was)
finding
the award unreasonable,
inter alia
, on this
basis:
“[34]
… To place an employee who was guilty of dishonesty back in
her position where honesty and integrity are paramount
to the
execution of duties, is to my mind grossly unreasonable, but more
importantly, it cannot be right and proper to reinstate
or re-employ
a person in a position that was secured by the making of false
statements.”
[23]
The second judgment in
Department of Home Affairs &
another v Ndlovu & others
(2014) 35
ILJ
3340
(LAC). The employee had misrepresented in his CV that he had a
degree in technology marketing and was dismissed for
dishonesty. A
bargaining council commissioner upheld the dismissal, with the award
having been set aside on review by this court.
But the LAC reversed
this court on appeal, and restored the commissioner’s award.
In the process, Dlodlo AJA held:
“The
fact that the misrepresentation in the CV might very well not have
induced the first respondent's appointment to the
post most
certainly does not detract from the fact of the first respondent's
initial dishonesty. The dishonesty as contained
in the CV is
ultimately what underpins the substantive fairness of the first
respondent's dismissal. Why did the first
respondent put in
his CV that which is untrue? He knew how to describe the MBA degree
which was then unfinished. He could have
described the bachelor of
technology marketing degree similarly if he found it necessary to
mention it at all in his CV.”
[24]
The third and most recent judgment is
G4S Secure Solutions
(SA) (Pty) Ltd v Ruggiero NO & others
(2017) 38
ILJ
881
(LAC). The employee failed to disclose a criminal conviction in his
application for employment as a security guard and
was dismissed for
dishonesty (14 years later). A CCMA commissioner found the dismissal
substantively unfair and awarded the employee
compensation, with the
award having been upheld on review by this court. But, again, the
LAC reversed this court on appeal and
set aside the award, with
Savage AJA finding:
“[30]
… The false misrepresentation made by the third
respondent was blatantly dishonest in circumstances in
which the
appellant is entitled as an operational imperative to rely on
honesty and full disclosure by its potential employees.
It induced
employment and when discovered was met with an absence of remorse on
the part of the third respondent. The fact that
a lengthy period had
elapsed since the misrepresentation, during which time the third
respondent had rendered long service without
disciplinary
infraction, while a relevant consideration, does not compel a
different result. This is so in that the fact that
dishonesty has
been concealed for an extended period does not in itself negate the
seriousness of the misconduct or justify its
different treatment. To
find differently would send the wrong message.””
(Citations omitted)
[17]
(2014) 35
ILJ
3340 (LAC), where it was held that;
“
[14]
The fact that the misrepresentation in the CV might very well not
have induced the first respondent’s appointment to
the post
most certainly does not detract from the fact of the first
respondent’s initial dishonesty. The dishonesty as
contained
in the CV is ultimately what underpins the substantive fairness of
the first respondent’s dismissal. Why did
the first respondent
put in his CV that which is untrue? He knew how to describe MBA
degree which was then unfinished. He could
have described the
Bachelor of Technology Marketing Degree similarly if he found it
necessary to mention it at all in his CV.
John Grogan in his
work
Dismissal,
(Juta
& Co. Ltd First published 2010, republished 2012) says the
following about dishonesty at page 188):
‘“
Dishonesty”
is a generic term embracing all forms of conduct involving deception
on the part of employees. In criminal law,
a person cannot be
convicted of dishonest conduct unless that conduct amounts to a
recognized offence. However, in the employment
law, a premium is
placed on honesty because conduct involving moral turpitude by
employees damages the trust relationship on
which the contract is
founded. The dishonest conduct of employees need not therefore
constitute a criminal offence. “Dishonesty”
can consist
of any act or omission which entails deceit. This may include
withholding information from the employer, or making
a false
statement or misrepresentation with the intention of deceiving the
employer…’
The above extract was referred to with approval by the
Constitutional Court in
Chemical Energy Paper Printing Wood
& Allied Workers Union
on behalf of
Hlebela
and Lonmin Precious Metals Refinery
(2011) 32 ILJ 2782 (CC)
at paragraph 69. A misrepresentation by an employee (as to his
qualification and skills etc.) before
the commencement of employment
has been held sufficient to warrant dismissal even if it is
discovered some time later and the
employee has rendered
satisfactory performance. In
Auret v Eskom Pension &
Provident Fund
(1995) 16 ILJ 462 (LC), the dismissal of an
employee was upheld because he had not disclosed the true extent of
fraud in
which he had been involved while working for his previous
employer.
[15]
In
Hoch v Mustek Electronics (Pty)
Ltd
(2000) 21 ILJ 365 (LC), the
court held that the employer was justified in terminating the
contract of an employee who had
misrepresented her qualifications
prior to her appointment. The same conclusion was reached in
Boss
Logistics v Phopi and Others
[2010] 5
BLLR 525
(LC) where a senior employee was found to have inflated his
qualifications and experience in his CV. In the latter case, the
court held that to accept that such an employee is entitled to
guidance, training or assistance before work performance would be
to
reward the employee for his dishonesty.”
[18]
Impala Platinum Ltd v Jansen and others
[2017] 4 BLLR 325
(LAC); See also
Interstate Bus Lines (Pty) Ltd v Phakwe
(2017)
38 ILJ 915 (LAC) at para 23, where it was held that;
“The
appellant did not lead any evidence to suggest that the trust
relationship between the appellant and the employee had
been
destroyed as a result of the employee’s conduct. It is,
of course, acceptable that the breakdown of trust may
be inferred
from the nature and seriousness of the misconduct, the conduct of
the employee after the misconduct and from any
other factors
justifying such an inference. However, there exists, in this
case, no such circumstances justifying such
a conclusion.”