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[2019] ZALCJHB 236
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Nongalaza v South African Local Government Bargaining Council and Others (JR2580/17) [2019] ZALCJHB 236 (5 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: JR 2580/17
In the matter between:
BAURENCIA
EUNICE NONGALAZA
Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
VENTER,
PM
N.O.
Second
Respondent
SOL PLAATJIE MUNICIPALITY
Third
Respondent
Heard: 1 August 2019
Judgment
delivered: 5 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second
respondent (the arbitrator) on 12 September
2017. In his award, the arbitrator appealed the dismissal of the
applicant after finding
that she had committed misconduct that
warranted the termination of her employment.
[2]
The review application was filed outside of the statutory time limits
and the applicant
has applied for condonation. That application was
not opposed, and the late filing of the application is accordingly
condoned.
[3]
The material facts are captured in the award and I do not intend to
repeat them here.
For present purposes, it is sufficient to state
that the applicant was employed on 1 January 2011 as a human
resources administrator,
and remained in that position until the date
of her dismissal, 20 June 2017. The applicant was dismissed on
charges of dishonest
conduct relating to the processing of
transactions on the third respondent’s IT system. In
particular, it was alleged that
she was party to a transaction in
which an employee (Kilelo) sold leave days to which she was not
entitled, and that she processed
an application for the sale of leave
days in respect of an employee (Koopman) who had never applied to
sell leave. Submissions
were made in the present proceedings
regarding the formulation of the allegations of misconduct against
the applicant, and in particular,
submission to the effect that the
charge against her was one of fraud and that the elements of fraud
had not been proved. The wording
of the charges is sufficiently broad
to incorporate dishonest conduct relating to the undue payments
concerned and indeed the finding
of the arbitrator is that the
applicant had not been honest in her dealings with her employer and
that she was guilty of very serious
misconduct.
[4]
The arbitration hearing assumed a form that is not usual. The
arbitrator clearly canvassed
the issues in dispute and on the basis
of what was common cause, the parties agreed that a report by a
forensic investigator ought
to be admitted, that the applicant
testify thereafter and that the forensic auditor be recalled as a
rebuttal witness in respect
of a single aspect. The report of the
forensic investigator followed on an investigation into large scale
fraud committed at the
third respondent by what appears to be a
syndicate.
[5]
In his award, the arbitrator acknowledged that it was for the third
respondent to
establish that the applicant’s dismissal was
substantively fair. He recorded (correctly) that there were two
mutually destructive
versions before him and in respect of the first
charge, concluded that there was overwhelming evidence that the
transaction concerned
had been captured by the applicant.
[6]
The applicant’s grounds for review are that the arbitrator
misconceived the
nature of the enquiry, that he committed a gross
irregularity in the conduct of the proceedings, that he failed to
apply his mind
to the evidence and that he reached a decision that no
reasonable decision-maker could have reached. In particular, the
applicant
submits that the third respondent’s failure to lead
evidence was fatal to its case, and that the arbitrator’s
conclusion
that the applicant was dishonest in the absence of such
evidence resulting in an unreasonable finding that cannot be
sustained
on the record. Further, the applicant submits that the
arbitrator ignored the issue of sanction, and that had he done so, he
would
have concluded that dismissal was not an appropriate sanction.
[7]
The applicable legal principles are well-established. This court is
entitled to interfere
with an award made by a commissioner if and
only if the commissioner misconceived the nature of the enquiry (and
thus denied the
parties a fair hearing) or committed a reviewable
irregularity which had the consequence of an unreasonable result. The
failure
by an arbitrator to attach particular weight to evidence or
attachment of weight to the relevant evidence and the like is not in
itself a basis for review; the resultant decision must fall outside
of a band of decisions to which reasonable decision-makers
could come
on the same material (see
Herholdt v Nedbank Ltd
[2013] 11
BLLR 1074
(SCA)). In other words, the test is two-staged. First, the
applicant must establish a misconception of the nature of the enquiry
or some misconduct or misdirection on the part of the arbitrator. If
that is established, whether a decision is unreasonable in
its result
ultimately requires this court to consider whether apart from the
flawed reasons of or any irregularity by the arbitrator,
the result
could still be reasonably reached in the light of the issues and the
evidence.
[8]
In
Gold Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)), The Labour Appeal Court noted that a review court is not
required to take into account every factor individually, consider
how
the arbitrator treated and dealt with each factor and then determine
whether a failure by the arbitrator to deal with one on
more factors
amounted to a process related irregularity sufficient to set aside
the award. The court cautioned against adopting
a piecemeal approach
since a review court must necessarily consider the totality of the
available evidence (at paragraph 18 of
the judgement). Specifically,
the questions for a review court to ask is whether the arbitrator
gave the parties a full opportunity
to have their say in respect of
the dispute, whether the arbitrator identified the issue in dispute
that he or she was required
to arbitrate, whether the arbitrator
understood the nature of the dispute, whether he or she dealt with a
substantial merits of
the dispute and whether the decision is one
that another decision maker could reasonably have arrived at based on
the evidence
(see paragraph 20). So, when arbitrator fails to have
regard to the material facts it is likely that he or she will arrive
at a
decision that is unreasonable. Similarly, where an arbitrator
fails to follow proper process he or she will arrive at an
unreasonable
outcome. But, as the court emphasised, this is to be
considered on a totality of the evidence and not on a fragmented,
piecemeal
analysis (at paragraph 21).
[9]
The applicable test confirms the line between an appeal and a review
– this
court is not at liberty to substitute an arbitrator’s
decision simply because it considers the arbitrator to have come to
an incorrect decision. The applicant must meet the more
exacting threshold of establishing that on the record of the
evidence,
and regardless of any reviewable irregularities on the part
of the arbitrator, the arbitrator’s decision falls outside of
a
band of decisions to which a reasonable decision-maker could come on
the available evidence.
[10]
I deal first with the procedure adopted by the arbitrator. As I
have indicated, the procedure
was one agreed to by the parties’
legal representatives, and which resonates with the statutory
purposes of informality and
expeditious dispute resolution (see s 138
of the LRA). The arbitrator clearly appreciated the nature of the
enquiry, even if the
process adopted was not the norm. There is no
merit in the attack on the award on the basis of the nature or form
of the arbitration
process.
[11]
Turning next to the arbitrator’s evaluation of the evidence, in
essence, the case before him
was one in which it had been agreed that
applications to encash annual leave had been made and processed on
the IT system, and
that the applicant’s user name had been
utilised in each case to access the system. What the arbitrator had
to decide was
whether it was the applicant who had effected the
changes, or whether the changes had been effected by some other
person using
the applicant’s unique password to gain access to
the system.
[12]
It is correct, as the applicant submits, that she denied processing
the transaction that led to Kilelo’s
payment of 38 leave days.
It is also correct that she testified that the system was defective.
The applicant’s version, in
essence, was that in respect of the
first charge, in accordance with the applicable procedure,
applications to encash leave are
signed by the relevant employee and
sent to a supervisor for approval. The document that formed the basis
of the first charge showed
that a Mrs Oktober was the employee
completed and signed the form on behalf of Kilelo. It was not
disputed that ordinarily, the
person who completed the form (in this
case, Oktober), would be the same person who processes the
transaction on the system. The
applicant denied that she worked on
this transaction and that she had any knowledge of stood to benefit
from it. In regard to the
second charge, the applicant’s
evidence in summary that she was instructed by her supervisor
Margaret Long to complete a
form to encash leave on behalf of an
employee named L Koopman for periods of 31 and 36 days. The applicant
testified that she complied
with the instruction and had no reason to
question it. The applicant assumed that the money would be paid
during at the end of
the current month, August 2016, and captured the
form on the system. Long later advised the applicant that the payment
was to be
made in respect of the July 2016 pay month, and that
payment therefore to be made by EFT. The applicant then destroyed the
form
in respect of August 2016, and completed a new form for payment
in respect of July 2016. The days also changed to 31 and 41, although
the applicant did not amend the number of days leave. It was
submitted on the applicant’s behalf that there was no evidence
to show that the applicant was guilty, nor was there any evidence to
reveal any payment being made consequent on the transaction.
It is
common cause that the transaction was cancelled when it was
discovered that it was fraudulent since L Koopman had not instructed
the third respondent to encash her annual leave.
[13]
Theron’s evidence established that no two persons could log
into the same profile on the third
respondent’s IT system
simultaneously. He testified that he had experience in systems such
as that operated by the third
respondent, and in the chronological
records of changes made to any profile by a user logged into the
system. There was no reason
to call Theron’s evidence into
question, and it was not seriously challenged in cross-examination.
[14]
I fail to appreciate how it can be said that the arbitrator committed
a reviewable irregularity by
preferring the third respondent’s
version over that of the applicant. His decision to reject the
applicant’s version
was not unreasonable, nor did it have the
result of an outcome that was so removed from the evidence that it
fell into a band of
decisions to which no reasonable decision-maker
could come. Of particular moment here is the credibility of the
applicant. She
did not fare well under cross-examination and as the
arbitrator observed, she was extremely evasive when questioned about
the fact
that the system reflected her details as the person having
accessed the relevant profiles. The applicant’s explanation
that
it was possible for more than one user to access an employee
profile at the same time was refuted by Theron’s evidence, but
even on the applicant’s own version, she was unable to explain
why she had accessed Kilelo’s profile in the first place.
The
overall impression of the applicant’s evidence is that she
adjusted her testimony as the proceedings progressed, seeking
ways to
exculpate herself as and when the contradictions in her testimony
were exposed during cross-examination. In respect of
the Koopman
transaction, the applicant’s initial version was that she had
completed the forms and taken them to Long. These
were destroyed when
she was given the instruction to allocate the transaction to the July
pay month. Initially, the applicant testified
that she had accessed
Koopman’s profile only once. Under cross-examination, she
stated that she had done so twice –
first to process the
initial transaction, and thereafter to correct it. The chronology put
to the applicant indicated that she
had first accessed Koopman’s
profile at 9:49 on 1 August 2016. At 9:50, a transaction ‘leave
sold’ was registered
under the applicant’s username.
Thereafter, Margaret Long accessed the profile at 10:17, and a ‘leave
sold’ transaction
is recorded. The log shows the applicant
re-entering the system at 10:29, until 10:33. When confronted with
evidence that she had
attempted to amend Koopman’s initials
while logged into the profile, the applicant was unable to offer an
explanation. The
arbitrator not unreasonably rejected the applicant’s
evidence that she had only entered the system once in relation to the
Koopman transaction, and that she had done no more than complete the
relevant forms and capture a transaction on Long’s instruction.
[15]
In short, the arbitrator did not commit any reviewable irregularity
in relation to his assessment of
the evidence and in drawing the
conclusion from that evidence that the applicant was guilty of
serious misconduct. In so far as
the applicant attacks the
arbitrator’s decision that dismissal was an appropriate
sanction, it is trite that arbitrators’
must be afforded
deference in regard to their decisions on sanction, and that the same
reasonableness threshold applies to their
assessments and decisions
in this regard. The arbitrator cannot be faulted for concluding that
the misconduct that he found to
have committed by the applicant was
very serious, and that dismissal was an appropriate penalty.
[16]
I am not satisfied that the applicant has demonstrated that the
arbitrator committed a reviewable irregularity,
or that the decision
he reached failed to meet the reasonableness threshold. The
application stands to be dismissed.
[17]
Finally, in so far as costs are concerned, for the purposes of s 162,
the interests of the law and
fairness are best met by each party
bearing its own costs. It is not clear whether the application is
supported in these proceedings
by a trade union, but I will give her
the benefit of the doubt and apply the protocol in terms of which
this court rarely orders
individual employees who seek recourse
against their employers to pay the costs of the proceedings.
I
make the following order:
1. The application
is dismissed.
2. There is no order
as to costs.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr. M Makhura, Cheadle Thompson & Haysom Inc.
For the respondent: Adv. F Venter
instructed by Van De Wall Inc