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[2019] ZALCJHB 163
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Rand Mutual Admin Services (Pty) Ltd v Dintoe and Another (JR1247/16) [2019] ZALCJHB 163 (28 June 2019)
in the labour court of
South Africa, JOHANNESBURG
Not
Reportable
case
no: JR 1247/16
In the matter between:
THE RAND MUTUAL ADMIN
SERVICES (PTY) LTD
Applicant
and
MOTLAGOILE
DINTOE
First Respondent
COMMISSIONER LAZARUS
MATLALA
N.O.
Second Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Third Respondent
Heard:
25 June 2019
Delivered:
28 June 2019
JUDGMENT
MAHOSI.J
Introduction
[1]
This is an application in terms of section 145
of
the Labour Relations Act (LRA)
[1]
to
review
and set aside the arbitration award issued by the second respondent
(the commissioner) under the auspices of the third respondent
under
case number NWRB1-16 dated 21 June 2016.
[2]
The issue is whether the commissioner, on the evidence before him,
came to a conclusion
that no reasonable decision maker could come to.
Summary of salient
facts
[3]
The applicant employed the first respondent as a branch manager of
its Rustenburg
branch with effect from 1 May 2015. In terms of
the contract of employment, the first respondent was required to
compile and submit
a month end report on the basis of which
the applicant would invoice its client. It is not in dispute that,
once the month
end report is compiled, it must be loaded on the
SharePoint
Server within
three days. The Regional Manager: Claims Mr Rhulani
Mackauckau (Mackauckau),
would thereafter
access the reports that were uploaded on the
SharePoint Server by the branches, collate information and submit the
consolidated
report to the Executive Manager for review by the
Executive Board.
[4]
On 4 November 2015, the first respondent uploaded the August month
end report
on
the SharePoint system. The following day, on 5 November 2015, the
third respondent accessed the system and renamed the August
month end
report to “Rustenburg Branch Month End 2015.” While
perusing the report submitted by the
first respondent, Mr Mackauckau noticed that the report had been
previously submitted as for
the
month of August 2015. An explanation was sought from the
first respondent. In his letter of explanation dated 12 November
2015, the first respondent stated
that
he uploaded the report while testing the system.
[5]
This resulted in the first respondent’s suspension and he was
subsequently
issued
a notice to attend a disciplinary hearing to answer to the following
allegations:
‘
2.1
Dishonesty
In
that on the 4
th
November 2015, you conducted yourself I a deceitful manner when you
changed the date on the August 2015 monthly Report cover page
and
submitted the report as a newly compiled October 2015 Monthly Report.
Such action is in breach of the trust relationship between
yourself
and the company
2.2
Insubordination
In
that on the 26
th
October 2015, you failed to follow a lawful and reasonable
instruction when you left the office for almost two hours for
personal
reasons without prior permission and/or authorization as
previously discussed.’
[6]
Following the disciplinary hearing the first respondent was found
guilty on charge
1 and the sanction of dismissal was imposed with effect from
10
December 2015. Dissatisfied with his dismissal, the first
respondent referred an unfair dismissal dispute to the third
respondent challenging both the procedural and substantive
fairness of his dismissal. The dispute was conciliated unsuccessfully
and it was referred to arbitration that was held on 14 March 2016, 22
April 2016 and 3 June 2016.
[7]
On 21 June 2018, the commissioner issued an arbitration award in
terms of which he
found that the first respondent’s dismissal
was substantively unfair and ordered the applicant to reinstate him
retrospectively.
It
is this award that is the subject of this application.
The arbitration and
the award
[8]
The commissioner recorded the issue to be decided at paragraph 4 of
his award that
reads:
‘
The
issue concerns the dismissal of the applicant on 14 December 2015. I
was called upon to decide whether the dismissal was substantively
unfair. The issue in dispute was whether the applicant acted
purposely in this matter.’
[9]
The applicant led oral evidence of five witnesses and submitted a
bundle of documents
as part of the evidence. Its case was that the
first respondent conducted himself in a deceitful manner when he
changed the date
of the August 2015 report. The applicant submitted
that by altering the cover of the August report, the first respondent
intended
to mislead the employer in believing that the report was for
October 2015.
[10]
The first respondent’s case was that he uploaded the month end
report with an intention to test
the system as he was not properly
trained to compile and upload same on the system.
[11]
The commissioner recorded, as common cause facts, that the first
respondent was aware of the rule that
he was required to submit
accurate monthly reports within three working days of the new month;
arrangements were made for Ms Segopotso
Kgatle to assist the
applicant in compiling such reports; the first respondent was
counselled for poor work performance on 21 October
2015 concerning
timeous submission of monthly reports and further that the first
respondent uploaded the report in the 2014/2015
folder instead of
2015/2016 folder.
[12]
Having done so, the commissioner firstly considered whether the first
respondent was properly trained
on completion and uploading of the
monthly report and found that the applicant failed to provide proper
training. It was on this
basis that he accepted the first
respondent’s version that in October 2015, he did not know how
to complete and upload the
monthly reports.
[13]
The commissioner then considered whether the first respondent acted
in a deceitful manner as charged
by the applicant and arrived at the
finding that appear in his award as follows:’
‘
My
findings are that had to the applicant intended to deceive the
respondent, he could have amended all the dates in the report,
but he
did not do so. The applicant only uploaded the month end report of
August 2015 which was the report used by Segopotso Kgatle
in her
illustration on how to upload such a report. According to the
applicant he uploaded the August 2015 report while he was
learning
how to upload files on the system. He described that as a test
document and not as an authentic October 2015 report as
alleged by
the respondent. I am unable to find any intention by the applicant to
deceive the respondent in this case but his conduct
demonstrates that
he was reckless in sending the report, but not dishonest.’
[14]
It was on the basis of the above finding that the commissioner found
the first respondent’s dismissal
to have been substantively
unfair. The applicant brought this application on the grounds that
are considered below.
The grounds for review
[15]
The applicant seeks to review the award on a number of grounds.
However, the challenge
is mainly that the commissioner
misconstrued the nature of the dispute
before
him, failed to take into account the applicant’s
evidence and further
misconstrued
and/or disregarded the important evidence of witnesses
which resulted in him arriving at an award that no reasonable
decision-maker
could
arrive at.
[16]
In opposition, the first respondent contends that the analysis of the
transcript and the award does
not support the applicant’s
contention that there was misconduct or gross irregularity on the
part of the commissioner. Further
that the commissioner considered
all the relevant facts and circumstances properly presented during
the arbitration proceedings
and reached a decision that fell within a
band of decisions that could be considered as reasonable.
The applicable law
[17]
The test laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
is a test for the substantive reasonableness of the outcome or result
of an arbitration award, which is an outcome based enquiry
[3]
,
entailing a stringent test aimed at ensuring that arbitration awards
are not lightly interfered with.
[4]
[18]
In
Bestel
v Astral Operations Ltd and Others
[5]
the Court stated as follows:
‘
It is important to
emphasise,
as
is exemplified
from
Carephone
,
and in
Schwartz
,
supra,
that
the ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered to
be correct by
the reviewing court; that is whatever this Court might consider to be
a better decision is irrelevant to review proceedings
as opposed to
an appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[6]
[19]
For the applicant to suceed with the review application, it must be
established that the commissioner’s
decision fell outside the
bounds of reasonableness based on all the material that was before
the commissioner, including for the
reasons not considered by the
commissioner.
[7]
Analysis
[20]
The question is whether the commissioner addressed the questions
raised for determination, evaluated
the facts presented before him
and arrived at a conclusion that is reasonable.
[8]
[21]
The commissioner seems to have been unsure
of what the issue before him was. Although at the beginning of his
award, he recorded
that the issue to be decided was whether the
dismissal was substantively fair and whether the first respondent
acted purposely
in uploading the August 2015 report, it is not clear
why he considered whether the third respondent was properly trained
to upload
the report on the SharePoint system. The issue before him
was that of misconduct and not poor work performance. In so doing, he
committed a material gross irregularity.
[22]
The main question the commissioner was required to consider was
whether the applicant committed
the misconduct he was charged with,
namely whether he acted in a deceitful manner when he changed the
date on the August 2015 and
submitted the report as a newly compiled
October 2015 monthly report. In determining this, the commissioner
was faced with two
mutually destructive versions. In
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell & Cie SA and
Others
[9]
the Court had the following to say in regard to the way in which a
decision-maker has to make a finding on disputed issues:
‘
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities.’
[23]
The undisputed evidence before the commissioner was that, as a branch
manager, the first respondent
was required, in terms of his contract
of employment, to submit monthly reports on the third day of every
month. On 21 October
2015, the third respondent attended a poor work
performance counselling session during which one of the issues raised
was his failure
to submit the month end report timeously. On 4
November 2015, which was the last day to submit the month end report
for October
2015, Ms Kgatle demonstrated to the third respondent how
to upload the report on the SharePoint system and further created a
folder
in which the third respondent could save all his reports. This
was done upon the third respondent’s request. Later that day,
the first respondent uploaded the report that was previously uploaded
in August 2015 on the system. On 5 November 2015, the third
respondent accessed the August 2015 report he submitted the previous
day and renamed it to “Rusternburg Branch month-end
October
2015.” Further to that, the first respondent edited the cover
page to make it read October 2015. This report was
left on the system
until 12 November 2015 when he was requested to provide an
explanation for his conduct.
[24]
In explaining his conduct, the record evidences that the first
respondent proffered different
versions. The first one was that he
uploaded the August 2015 report in a process of testing the system as
he was not properly trained
[10]
.
The second one was that he made an honest mistake.
[11]
The third version was that he had the intention to alter the inside
document to reflect the October report.
[12]
Notwithstanding the first respondent’s evidence that was
riddled with inconsistencies and contradictions, the commissioner
accepted his version without giving reasons for doing so. His
decision to choose the first respondent’s version over the
applicant’s when there were conflicting versions is so
implausible as to render the award unreasonable.
[25]
Not only that, the commissioner also made a finding that had the
first respondent intended to
deceive the applicant, he would have
amended all the dates in the report, which he did not do. It is not
clear what the commissioner
based this finding on because firstly, he
failed to assess the basis on which the first respondent made the
amendments on the August
2015 report. Secondly, as earlier intimated,
the record evidences that one of the first respondent’s
versions was that he
had the intention to alter the inside document
to reflect the October 2015 report. Of importance, is that the first
respondent
did not voluntarily declare that, while he was testing the
system, he mistakenly submitted the amended August 2015 report.
Instead,
he waited until Mr Mackauckau realised that the report he
submitted as one for October 2015 resembled the one previously
submitted
for August 2015.
[27]
It is clear from the reading of the award that, in accepting the
first respondent’s version,
the commissioner was influenced by
his finding that the he was not properly trained to complete and
upload the monthly reports.
Had the commissioner not accepted the
first respondent’s version, he surely would not have found that
his dismissal was substantively
unfair.
[27]
In light of the above, the applicant succeeded in making out a case
that the commissioner’s decision
was unreasonable and that he
committed a gross irregularity in misconstruing the nature of the
enquiry before him and in disregarding
material evidence. I do not
deem it wise to remit the dispute to the CCMA for fresh arbitration.
I will determine the dispute in
terms of section 145(4)(a) of the
LRA.
[28]
The first respondent was not charged and dismissed for failing to
upload the monthly report. The issue
was that he was dishonest in
changing an existing report of August 2015 and submitting it as a
report for the month of October
2015. It is apparent from the record
that the first respondent committed the misconduct he was charged
with and further that his
justification was highly improbable.
[29]
With regard to costs, I am of the opinion that the requirements of
law and fairness dictate that there
should be no order as to costs.
[30]
In the circumstances, I make the following order
Order
1.
The arbitration award issued by the second respondent under the
auspices of the
third respondent under case number NWRB1-16 dated 21
June 2016
is reviewed and set aside and
substituted with the following order.
1.1
The dismissal of the first respondent was substantively fair.
2.
There is no order as to costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Advocate Xolani Matyolo
Instructed
by:
Mervyn Taback Incorporated
For
the third respondent: Mr Parsons of Parsons
Attorneys
[1]
Act
66 of 1995 as amended.
[2]
[2007]
12 BLLR 1097 (CC).
[3]
Ellerine
Holdings Ltd v Commission for Conciliation, Mediation and
Arbitration and others
(2008)
29
ILJ
2899
(LAC) at 2906H-I.
[4]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 100;
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR 1074
(SCA) at para 13.
[5]
[2011] 2 BLLR 129
(LAC)
.
[6]
Id
fn 5 at para 18.
[7]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 103.
[8]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 16.
[9]
(427/01)
[2002] ZASCA 98
(6 September 2002)
.
[10]
Transcribed record at
page
254, line 5
[11]
Transcribed record at
page
306 line 4-7
[12]
Transcribed record at page 314, line11-13