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[2019] ZALCJHB 239
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Lebeya v Matlala and Others (JR2330/16) [2019] ZALCJHB 239 (23 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT Johannesburg
Not Reportable
Case no: JR2330/16
In
the matter between:
DOCTOR
LEBEYA
Applicant
and
COMMISSIONER
LAZARUS MATLALA
First Respondent
CCMA
Second Respondent
LONMIN
PLATINUM
MINE
Third Respondent
Delivered:
23 August 2019
JUDGMENT
IN THE APPLICATION FOR LEAVE TO APPEAL
NORTON
AJ
Introduction
[1]
On 14 June 2019 my judgment dismissing the Applicant’s review
application
was handed down.
[2]
On 8 July 2019 the Applicant filed an application for leave to
appeal.
[3]
On 10 July 2019 the Third Respondent gave notice of its intention to
oppose
the Applicant’s application for leave to appeal.
[4]
On 17 July 2019 the Applicant filed its submissions, and about a week
later, so did the Third Respondent.
Applicant’s
stated grounds
[5]
The Applicant’s stated grounds in the application for leave to
appeal
are largely conclusions of law. In the submissions the
Applicant’s grounds may be distilled to the following:
5.1.
The
sanction of dismissal was too harsh: Noting that he had an
unblemished disciplinary record; he was not suspended after he was
charged and continued with his normal duties, the Security
Superintendent who alleged at the CCMA that the trust
relationship
had broken down appointed him to act for a week in his
position.
[1]
5.2.
Not
every dishonest act justifies dismissal
[2]
:
By implication the Applicant’s claim for travel, which was
unjustified and contrary to Lonmin’s policy, whilst dishonest
did not justify dismissal.
5.3.
The Commissioner erred when he found that the Applicant had
not incurred expenses travelling to work, when he had filled up his
colleague’s vehicles with petrol.
Third
Respondent’s opposition
[6]
There
was no good reason to suspend the employee after the commission of
the offence as the evidence of misconduct (video footage
and the
travel slips) was with the supervisor.
[3]
There
was a shortage of staff and hence the Applicant was asked to act as a
Security Superintendent for a short period of time.
[7]
Three
employees charged with the same offence were dismissed, and one
resigned.
[4]
[8]
The
Applicant did not produce any proof that he had incurred expenses
travelling to work. In any event, he had not submitted a claim
for
reimbursement for petrol, but rather for kilometers travelled.
[5]
Evaluation
[9]
When deciding whether to grant leave to appeal, the Applicant
is duty bound to set out the facts and the law which demonstrate that
another court would come to a different decision. In other words, the
Applicant must show that the apparent misdirection is material,
and
that there are prospects of another court arriving at a different
decision, or there are compelling reasons why the matter
should be
heard by a higher court.
[10]
The Applicant has failed to pass the test for a successful
application for leave to appeal. It is unlikely that the another
would
come to a different determination on the matter because:
10.1.
The Third Respondent regarded the
presentation of fraudulent travel claims as serious and had
previously dismissed employees for
the same offence;
10.2.
The Applicant was aware of the risk that he
took when he did so, but presumably reconciled himself to that risk,
assuming that he
would not get caught; and
10.3.
The Applicant never acknowledged any
wrongdoing, and a lesser sanction, noting the progressive discipline
principles, would not
have been appropriate in this case.
[11]
Whilst
it is true that the Labour Court has acknowledged that not every
dishonest act by an employee justifies dismissal, the ultimate
test
for fairness, according to Grogan AJ in
Carter
v Value Truck Rental
(2005) 36 ILJ 711 (SE) is “
whether
the employer can reasonably be expected to continue to trust the
employee…”
[6]
[12]
I conclude that the Third Respondent cannot
reasonably be expected to continue to trust the employee: when
there has been
no acknowledgement of wrongdoing; the employee has
wrongly persisted with his view that he was justified to claim for
kilometers
travelled (when he filled up his colleagues’
vehicles but brought no slips to his employer for reimbursement);
when he knew
that such misconduct would lead to dismissal; and his
employer (represented by Mr. Pieterse) said he no longer trusted him.
[13]
In the circumstances I am of the view that
the LAC is unlikely to arrive at a different decision.
[14]
Accordingly, I make the following order:
Order
[15]
The Application is dismissed.
____________________
NORTON AJ
Acting
Judge of the Labour Court of South Africa
[1]
Paragraph
19
[2]
Paragraph
27.1
[3]
Paragraph
7
[4]
Paragraph
33
[5]
Paragraph
21
[6]
Para
46