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[2019] ZALCJHB 198
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City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR266/17) [2019] ZALCJHB 198; (2020) 41 ILJ 184 (LC) (19 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG
case no: JR 266/17
Not
reportable
In
the matter between:
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
First
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL
First
Respondent
ADVOCATE
T L MABUSELA
N.O
Second
Respondent
SAMWU
obo KGOMOTSO BANDA
Third
Respondent
Heard
:
14 August 2019
Delivered
:
19 August 2019
Summary:
(Review – reasonableness – arbitrator could only have
arrived at findings by ignoring critical
relevant evidence –
arbitrator misconstruing requirement of confession in employment
context)
JUDGMENT
LAGRANGE
J
Background
[1]
This is a review application of an arbitration award in which the
arbitrator found the third
respondent’s dismissal was
substantively unfair. Essentially the review is based on
unreasonableness.
[2]
The third respondent (‘Banda’) was found guilty during
his disciplinary inquiry
of acting in concert with one other employee
to defraud the Tshwane municipality by performing illegal
transactions on the SAP
system after gaining access to it unlawfully
using the login credentials and passwords of three other employees.
The three employees
in question did not use the PC used by Banda and
were not even working on the same premises. Banda shared the PC with
one other
employee. The fraudulent transactions consisted of closing
certain customer’s municipal rates debtor accounts and creating
new accounts for them thereby extinguishing the debt and causing the
municipality a loss of approximately R 168,000-00.
The award
[3]
The arbitrator hearing the case was “not convinced” that
Banda had committed
the misconduct. In summary, his account of the
evidence was as follows:
3.1
The arbitrator accepted that the passwords and credentials that were
used to open and close accounts
belonged to employees who did not
work on the PC which Banda and one other employee (‘Mavuso’)
shared at a different
physical location.
3.2
The investigator testified that Banda had confessed to the activities
and that he obtained the
credentials used to access the system from
another employee [Makoka] working at the same premises as the
employees whose credentials
were used.
3.3
The investigator testified that Banda also identified two other
employees who had assisted him,
and both of these employees resigned
when the allegations were brought to their attention.
3.4
The investigator eliminated other employees who had used the same PC
as suspects because there
was no evidence linking them with the
fraudulent transactions. An alternative suspect identified by Banda
was not one of the employees
whose profile was identified as using
the PC in question.
3.5
The other employee who use the PC in question had no knowledge of the
SAP system, which was used
to perpetrate the fraud.
3.6
Banda admitted being trained on the SAP system.
3.7
Banda claimed to be ignorant about the reasons why the other two
employees implicated had resigned.
He admitted to requesting the name
of one employee from Makoka but claims his interest was in making
contact with the employee,
apparently as he supposedly had romantic
designs on her. He claimed he hardly used his own work email because
he uses his personal
one.
[4]
The arbitrator reached his conclusion that he was not “convinced”
the third
respondent had committed the alleged misconduct on the
following basis:
4.1
The evidence against the applicant was circumstantial consisting
inter alia
of the evidence of the two persons using the
computer, he was the only one trained to open and close accounts on
the SAP system.
4.2
Although the chairperson of the inquiry said his decision would have
been influenced if he had
known that there were eight other employees
using the PC in question, one of whom had SAP training, the
arbitrator could find no
reason why it was Banda’s ID that was
used to open and close accounts even if his version was that it could
be anyone who
knew his credentials.
4.3
The arbitrator accepted that the other two employees had resigned
when confronted by the investigator
because they knew that was the
only option, but that did not make Banda guilty.
4.4
The fact that the third respondent contacted Makoka to obtain the
details of someone who was not
on duty did not mean he did so for
ulterior motives.
4.5
There was nothing wrong with the disciplinary chairperson’s
conclusion that Banda was guilty
except that the chairperson did not
know there were other persons using the PC.
4.6
Even though the investigator said that he was only able to track the
other employees who were
implicated because of Banda’s
confession, the confession was disputed by Banda and there was no
evidence corroborating the
existence of the confession, nor did it
comply with the requirements of a confession, which the arbitrator
did not identify. In
this regard it appears that the arbitrator would
only have been prepared to accept that a confession was made if there
was a formal
written statement to that effect. In the absence of
corroboratory evidence that the alleged confession was made, there
was nothing
in the investigator’s evidence that could assist
the arbitrator in making an informed decision.
Grounds of review:
[5]
Essentially, the applicant contends that the decision is not one that
a reasonable arbitrator
could have reached on the evidence before the
arbitrator. Amongst the specific reasons advanced are:
5.1
The evidence was not circumstantial but direct.
5.2
The arbitrator improperly disregarded the investigator’s
evidence even though he testified
that he would not have been able to
identify two other employees who were implicated without Banda’s
confession and that
those employees resigned when confronted with the
information provided by Banda.
5.3
The arbitrator committed an error of law in deciding that only a
formal confession would carry
any weight.
5.4
In assessing Banda’s evidence, the arbitrator ignored that
despite Banda’s denial,
it was established that he had received
SAP training and knew how to open and close accounts.
[6]
A number of other generally stated grounds of review were raised by
the municipality but
without providing factual substratum for making
those claims. Accordingly, these have not been considered.
[7]
Banda argues that the failure of the applicant to provide evidence
how the other eight employees
who might have used the PC could not be
linked to the misconduct justified the arbitrator’s conclusion.
He also argues that
the applicant failed to show how the alleged
irregularities in the award affected the outcome.
Evaluation:
[8]
It is true that much of the case against Banda was circumstantial, or
indirect, evidence
of his involvement. But the mere fact that it was
circumstantial does not mean it could not be compelling.
[9]
The arbitrator completely failed to have regard to the investigator’s
evidence that
he was only able to identify to other persons
implicated in the fraudulent scheme based on the information provided
by Banda. The
arbitrator simply avoided the inescapable fact that, on
the evidence the only explanation how the investigator came by this
information
was that it was provided by Banda himself. In contending
that in the absence of corroboratory evidence that Banda made a
confession,
the investigator’s evidence could not be relied on,
the arbitrator completely ignored the corroboratory evidence that
other
persons involved could not have been identified without Banda
providing that information.
[10]
In taking into account that other people had used the computer used
by the Banda, the arbitrator also ignored
the evidence that the
investigator found that none of the others could be linked to the
fraudulent transactions and the alternative
suspect mentioned by the
third respondent did not have a user profile on the computer at all.
In this regard what was particularly
telling was a series of emails
sent from Banda’s municipal email address to the persons whom
the investigator claimed Banda
had identified as helping him close
and open accounts. In the arbitration, the arbitrator was plainly
aware of the difficulty this
presented to Banda, and then suggested
to Banda that someone else may have used his email address when he
was not using the PC,
even though Banda had not advanced this
explanation himself. The arbitrator then ought to have considered
that the emails in question
amounted to a lengthy to and fro
conversation which was not confined to a few minutes of the day as
might be expected if someone
opportunistically took advantage of
Banda’s temporary absence from his workstation. Even more
remarkably, the arbitrator
ignored the utterly incredible evidence of
Banda that he was aware of the emails which were sent in his name but
that even though
he claims not to have sent them, it did not alarm
him that his email was being abused by an unknown third party in this
way.
[11]
In discounting the information provided to the investigator, the
arbitrator was also able to avoid dealing
with the investigator’s
evidence that the names that the third respondent claims were given
to him by Makoka were the very
persons whose computer identities were
used to open and close accounts when they were absent from work.
Similarly, the only explanation
provided in the evidence for the
investigator to contact Makoka about the provision of names to the
third respondent was that the
third respondent said he received the
details from Makoka. In this regard the arbitrator also failed to
consider the conflicting
versions about why Banda claimed he
contacted Makoka. Makoka was very clear that he wanted to know the
identity of someone who
was absent from work, whereas Banda claimed
he was trying to get hold of someone. The arbitrator failed to
reconcile the evidence
of Makoka that Banda did not ask if a
particular person was at work, but asked for the name of a person who
was not, whereas Banda
was essentially claiming he was trying to get
hold of someone he had identified.
[12]
The pattern of the arbitrator simply turning a blind eye to evidence
contrary to his conclusions is so obvious
it is strongly suggestive
of bias on his part, apart from the fact that his findings were
irrational because he could only have
reached them by ignoring such
evidence. I am satisfied on the evidence that no reasonable
arbitrator could have arrived at his
findings on the evidence before
him. On the contrary had he dealt with the inconvenient evidence he
ignored he would have been
compelled to conclude that the only
reasonable inference to draw was that Banda was guilty as charged.
The fraudulent misconduct
being of a very serious nature his
dismissal was justified.
Order
[1]
The second respondent’s finding in the arbitration award in
case PMD 111312 dated
9 January 2017 handed down under the auspices
of the first respondent that the dismissal of Mr K Banda was
substantively unfair
and the relief awarded in paragraph 6 of the
award is reviewed and set aside, and substituted with a finding that
he was guilty
as charged and his dismissal was fair.
[2]
No order is made as to costs.
_______________________
R
G Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
W
Bekker instructed by Gildenhuys Malatji Inc.
THIRD
RESPONDENT:
L
Tooka of M S Molebaloa Attorneys Inc.