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[2019] ZALCJHB 155
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Lebeya v Matlala and Others (JR2330/16) [2019] ZALCJHB 155 (14 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
number: JR2330/16
In
the matter between:
DOCTOR
LEBEYA
Applicant
and
COMMISSIONER
LAZARUS MATLALA
First Respondent
CCMA
Second Respondent
LONMIN
PLATINUM
MINE
Third Respondent
Heard: 11 January and
18 February 2019
Delivered: 14 June
2019
JUDGMENT
NORTON,
AJ
Background
[1]
The Applicant was employed as a security and risk management officer
by
the Third Respondent. He was dismissed on 25 April 2016 following
a disciplinary enquiry in which he was found guilty of dishonesty.
At
the heart of the misconduct was two fraudulent travel claims
submitted by the Applicant to the Third Respondent.
[2]
On 13 and 27 June 2015, whilst off duty the Respondent called on the
Applicant
to report for work. In terms of company policies and
procedures when an employee receives such a call out, the employee is
entitled
to claim travelling expenses if the employee uses his / her
own car. If an employee travels by any other mode, eg bus or tax,
then
the employee is entitled to be reimbursed for those costs, and
is required to submit slips as proof of such travel.
[3]
The Applicant claimed that he travelled 154 km for each trip
calculated
at R486.64 (a trip) and was reimbursed for the first trip
but not for the second. About 6 months later the Third Respondent,
viewed
security footage and discovered that the Applicant had
travelled in a colleagues car, and was thus not entitled to claim for
travelling
expenses.
[4]
The Third Respondent charged the Applicant on 14 December 2015 with
dishonesty
and misrepresentation with respect to the events of 13 and
27 June 2015. Furthermore the Third Respondent charged the Applicant
with breaching the company’s Code of Business Ethics, and the
Travelling Policy.
[5]
The Third Respondent found the Applicant guilty as charged and
dismissed
him on 25 April 2016. The Applicant referred an unfair
dismissal dispute to the Commission for Conciliation, Mediation and
Arbitration
(CCMA). The CCMA found that the dismissal was
procedurally and substantively fair.
[6]
On the 27 October 2016 the Applicant approached the Labour Court to
review
and set aside the First Respondent’s award.
Points
in limine
[7]
There were two interlocutory applications before me. First, the
Applicant
sought condonation for the late service and filing of the
review application which was 12 days late. The explanation lies with
delays occasioned by his former attorney, and Scorpion.
[8]
The second application is a rule 11 application instituted by the
Third
Respondent on 5 November 2017 to dismiss the review application
as the Applicant had failed to file the record timeously. The
Applicant
eventually filed the record on 23 May 2018. He explained
that he relied on his attorneys to follow the correct processes, and
they
had not. He also explained that he was unemployed and raising
funds for the litigation from his community.
[9]
The condonation application was granted as the lateness of the review
application was minimal with no prejudice to the employer. The
Rule 11 application was dismissed as the Applicant eventually
produced the record, and the Third Respondent then served and filed
their Answering Affidavit. The parties proceeded to draft heads
of
argument, and prepared to argue the matter. The prejudice suffered to
the Applicant if the rule 11 application was granted would
have been
unfairly severe, essentially denying him an opportunity to present
his case and have the review ventilated.
[10]
The Court proceeded to hear the merits of the matter as set out in
the pleadings and record
of the review.
Grounds
of review
[11]
The Applicant initially challenged the award on both the procedural
and substantive leg,
but in their Supplementary affidavit abandoned
his procedural challenges. Substantively the Applicant asserts that
the First Respondent
committed a reviewable irregularity in that:
18.1
The Third Respondent “failed to prove that by riding in
friend’s vehicles and claiming
for such kilometres is in
contravention of the …policy”
18.2
The commissioner ignored the Applicant’s ‘
unchallenged
version…that he was not asked as to with whom did he travel on
the dates in question
”
18.3
The commissioner ‘
erred, was unreasonable, committed a
latent gross irregularity and/or exceeded his powers in finding that
employer’s travel
policy states that employees who claim for
travelling will be required to have their privately – owned
vehicle
…”
18.4
The commissioner ‘
failed to contextualise / and or
appreciate the true nature of the travel policy including reasons and
/ or purpose for a claim,
which Applicant submits is to cover
transport costs for call out
…”
18.5
The commissioner erred by finding that “
such
misrepresentation demonstrates lack of straightforwardness…”
18.6
The
commissioner erred by finding that “
the
Applicant had contravened important rules and policies governing the
conduct of employees
…”
[1]
The
evidence before the First Respondent
[12]
The Third Respondent presented the Policy on Travel Allowances and
Business Travel. The
relevant provisions are as follows:
12.1
Scope: “…This policy is applicable to all staff who are
required to use their privately owned
vehicles for business purposes
in the RSA.”
12.2
Clause 4.1.5: “
Employees will be required to have their
privately-owned vehicle available to travel on Lonmin business when
required to do so
.”
12.3
Clause 4.2.2 “
Employees who do not receive a travel
allowance will be allowed to claim all business travelled.
”
[13]
Mr Pieterse (the Security Risk Management Superintendent) gave
evidence that an employee
who is on a call out is entitled to claim
for the kilometres travelled when using his / her privately owned
vehicle. He said that
the Applicant was not entitled to any
kilometres travelled for 13 and 27 June 2015 as he did not use his
own vehicle. He obtained
a lift from colleagues who were going to
work in the ordinary course. (On 13 June 2015 the Applicant was a
passenger in a vehicle
driven by a colleague, Mr Mamogale. On 27 June
2015 the Applicant was a passenger in a vehicle driven by Mr Moyo.)
[14]
Mr Pieterse also gave evidence that the Applicant could claim for
expenses actually incurred
on production of proof, i.e. a slip or
ticket. In such circumstances employees were required to complete a
form entitled, “
Expenses and subsistence allowance form
”.
The Applicant submitted no proof that he had paid for petrol in his
colleagues’ vehicles.
[15]
Pieterse explained that he had a blue file of the various policies
and procedures, including
the travel policy and claim forms, and
explained to the employees, including the Applicant, what they
entailed. He testified further
that trust is of paramount importance
in the industry. He found the Applicant’s conduct dishonest and
incompatible with a
continuing work relationship.
[16]
Mr Lebeya said that he claimed for payment of petrol as he filled up
Mr Mamogale’s
vehicle and Mr Moyo’s. He could not recall
how much he paid for petrol on the separate occasions. He also did
not produce
any slips indicating the amount paid. This was confirmed
by Mr Mamogale who testified that Mr Lebeya had paid for petrol when
he
gave him a lift to work.
[17]
Mr Moyo testified in cross examination at the CCMA that he sometimes
gave a lift to a different
employee, namely Mr Mboweni. Mr Mboweni
claimed for travel, and was dismissed by the Third Respondent. The
Applicant persisted
with his view that he was entitled to claim for
kilometres travelled, when he had not used his own car, but had
travelled with
colleagues in their own cars.
The
arbitrator’s award
[18]
The
arbitrator’s award is clearly written and well structured. The
arbitrator summarised the evidence and found that the Applicant
claimed on the 13 and 27 June for 154 kms x R3.16 per km on both
days. The arbitrator sensibly approached the matter through the
gaze
of Item 7 of Schedule 8 of the Labour Relations Act
[2]
(the LRA) by asking the following questions:
18.1
Did the employee transgress a workplace rule?
18.2
Was the employee aware of the rule?
18.3
Was the employee aware of the consequences of contravening the rule?
18.4
Did the employer apply the rule consistently?
18.5
Was dismissal the appropriate sanction?
[19]
The arbitrator analysed the facts, and answered these questions in
the affirmative. He
found that the Travel Policy and Code of Business
Ethics established the rule of ethical conduct when claiming for
travelling expenses
when travelling in the employee’s own
vehicle. The employee was aware of the rule. Noting that a different
employee, Mr Mboweni
had previously been dismissed for precisely the
same misconduct, he reasonably knew the risk of his transgression.
[20]
The
arbitrator found that the Applicant’s misconduct constituted
dishonesty and that dismissal was the appropriate sanction.
He
concluded by findng “
that
the Respondent cannot reasonably be expected to keep the Applicant in
its employ, the applicant is a dishonest employee
.”
[3]
Analysis
[21]
The “grounds” of review presented by the Applicant, are
no grounds at all.
The Applicant had breached his employer’s
policies; use of the employee’s own private car was a
prerequisite for claiming
for travel costs for kms / distance
travelled; the purpose of such a policy is to reimburse the employee
for travel costs incurred
travelling to work on a “day off”.
The Applicant was entitled to produce the slips for the petrol he
paid for when
he was a passenger in his colleagues’ cars, but
couldn’t do so. (Had he done so, the Third Respondent would
have reimbursed
him for those costs.) His conduct was dishonest and
calculated to mislead Lonmin into making payment to him for travel
costs he
had not incurred.
The
Applicant’s submission that the arbitrator’s award is
irrational, or that the arbitrator exceeded his powers, is
simply not
supported by the evidence. The Applicant has wholly failed to pass
the threshold for review which is to demonstrate
that the
arbitrator’s award falls outside of the spectrum of
reasonableness contemplated in the Constitutional Court’s
decision in
Sidumo
& another v Rustenburg Platinum Mines & others
[4]
and/or show that the arbitrator committed misconduct, a gross
irregularity, or exceeded his powers as set out in section
145(2) of
the LRA. Therefore, the award sits comfortably insulated from the
Applicant’s review challenge.
[22]
Accordingly I make the following order:
Order
1.
The Application is dismissed.
_____________________
D.
Norton
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Doctor Lebeya
For
the Third Respondent: N O Mamabolo Incorporated
[1]
Para
35 of the Supplementary Affidavit.
[2]
66 of 1995, as amended.
[3]
Para
64 on p. 14 of the arbitration award.
[4]
[2007]
12 BLLR 1097
(CC).