About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 238
|
|
Ming v MMI Holdings Ltd and Others (JR1211/17) [2019] ZALCJHB 238 (28 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
1211/17
In
the matter between:
ELIZABETH
LEE MING
Applicant
and
MMI
HOLDINGS
LTD
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION Second
Respondent
TSHEPISO
MASHIGO N.
O Third
Respondent
Heard
:
21 August 2019
Delivered
:
28 August 2019
Summary:
Point in limine
–
peremption of review –
Not entertained. Review enrolled – the award is one that a
reasonable commissioner may arrive
at. Held: (1) The application for
review is dismissed. (2) No order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
Although salivating arguments were presented from both sides on the
issue
of peremption, I chose not to entertain this point of law for
two reasons. The Registrar of this Court enrolled a review
application
and duly notified the parties on 6 June 2019. The review
application stands opposed. In opposing the application, the first
respondent
raised a preliminary point of peremption. The first
respondent contended that by demanding payment of the compensation
ordered
by the third respondent, the applicant perempted her right of
review. That being the case, this Court must dismiss the review on
that basis only. The applicant contended otherwise and persisted with
the review aimed at reversing the decision of the third respondent
to
the effect that the dismissal of the applicant is substantively fair.
Why
the Court chose not to decide the peremption point?
[2]
Key and fundamental is that given the view this Court takes at the
end,
it would be purely academic for this Court to pronounce itself
on the issue. Secondly, counsel for the applicant submitted that
if
the review is dismissed, it would serve no purpose for the Court to
pronounce itself on the point. In my view, it is a submission
well
made.
Background
facts
[3]
The applicant was employed by the first respondent in the position of
Chief Marketing Officer. Certain allegations of misconduct were
levelled against the applicant. The veracity of those allegations
were to be tested in a disciplinary enquiry which was scheduled to
occur on 21 and 22 July 2016. The enquiry was postponed at the
behest
of the applicant to seek legal representation. The request for
external legal representation was refused. The hearing was
scheduled
to proceed on 15 August 2016. On this day, the hearing was postponed
on account of the unavailability of the applicant’s
internal
representative. The hearing was then scheduled to proceed on 26
August 2016. A day before, the applicant submitted a sick
note
stating that she was indisposed until 30 August 2016.
[4]
On 30 August 2016, the applicant launched an urgent application in
this
Court seeking to interdict the continuation of the hearing. On 9
September 2016, my brother Van Niekerk J heard the application
and
dismissed it on 12 September 2016. Owing to that, the hearing was
scheduled to proceed on 26 September 2016. Prior to the commencement
of the scheduled hearing and on 17 September 2016, the applicant
injured her shoulder in an ice hockey match.
[5]
On 16
September 2016, the HR Business Partner, Bronwyn Swanson sent an
email
[1]
communication to the
applicant advising her of the continuation of the hearing. On 23
September 2016, a reminder of the hearing
date was sent to the
applicant. In response to the notification, the applicant stated the
following:
“
Unfortunately I
will not be able to be at the office next week Monday. I was
injured
very badly
in my ice hockey game and my doctor booked me
off until Monday 3 October.
Please see attached
medical certificate…”
[6]
As a result, the hearing could not proceed on the scheduled date. On
1
October 2016, the applicant submitted a note stating that she
should be booked of between 3 and 10 October 2016. The first
respondent
discovered that on 18 September 2016, a day after her
shoulder injury, the applicant participated in a hockey match. On 21
to 22
September 2016 she drove herself to Cape Town for a conference.
On 27 September 2016 she participated in ice hockey practice. On
29
September 2016 she attended the annual “Assegai” awards
held in Johannesburg as a judge in the awards.
[7]
Upon discovery of those facts, on 4 October 2016, the applicant was
notified
of the second disciplinary enquiry. A detailed notice signed
by Mr. Juan De Beer stated that this enquiry was to investigate
allegations
of gross misconduct which includes dishonesty as well as
her absence without leave. The notice detailed what the first
respondent
discovered after the email alleging bad injury. The
hearing to investigate these allegations was scheduled to happen on 7
October
2016. On 6 October, the applicant sent a detailed email to Mr
Juan De beer. In it she stated that she was booked off until the 10
th
and that she was unavailable until October 24
th
.
[8]
On the scheduled date, 7 October the applicant failed to attend. The
hearing
continued in her absence and she was found guilty and
dismissed. Aggrieved by her dismissal, she referred a dispute to the
second
respondent for resolution. The third respondent was appointed
to resolve the dispute alleging unfair dismissal through arbitration.
On 3 May 2017, the second respondent published his award in which he
found that dismissal of the applicant was substantively fair
but
procedurally unfair. He awarded the applicant four months
compensation for procedural unfairness. On 16 May 2017, the
applicant’s
attorneys, Welman and Bloem Inc demanded payment of
the compensation amount into their trust account. After the necessary
deductions,
the first respondent effected the demanded payment.
[9]
On or about 21 June 2017, the applicant launched the review
application
effectively seeking to challenge the finding that the
dismissal is substantively fair.
Grounds
of review
[10]
In her
founding papers, the applicant simply recited the provisions of
section 145 of the Labour Relations Act
[2]
(LRA). Further, she stated that the award is not one that a
reasonable commissioner may arrive at. In amplification of the
grounds,
the applicant contended that the third respondent made an
incorrect decision and/or assumption when he held or assumed that she
exaggerated the extent of her injury in order to avoid attending the
first hearing. She further contended that the third respondent
failed
to correctly consider the issues before him which was to determine
whether or not the first respondent had in fact proven
a break in
trust between her and her employer. Because of the alleged
irregularities, she did not enjoy a fair trial. The third
respondent
missed the issues he had to determine. The applicant supplemented her
grounds and alleged that the third respondent
failed to properly
identify the issues. The decision that the sanction of dismissal was
appropriate is not one that a reasonable
commissioner may arrive at.
Evaluation
[11]
The role to determine whether a dismissal for reasons of misconduct
is fair or not is a
role approbated to arbitrators in terms of the
LRA. The supervisory role of this Court using its review powers is to
determine
whether the outcome arrived at by arbitrators is one that
falls within the bounds of reasonableness. Therefore, it is not the
role
of this Court to, at will, interfere with the outcome arrived at
by the arbitrator even in the circumstances where the outcome falls
within the bounds of reasonableness.
[12]
Critical in this matter is the statement made by the applicant on 23
September 2016. She
represented to the first respondent that she was
badly injured. This, it follows as day follows night that she did in
order to
not attend the hearing she was reminded of. The
consideration then becomes whether the applicant was honest and
truthful when she
represented to her employer that she was badly
injured? It does not require a rocket scientist to take note that a
person who is
badly injured like the applicant alleged cannot shortly
thereafter play in the sport that got her injured in the first place,
drive
a car for a long distance and also perform judging duties. If a
person performs those activities, it is not wrong to take a
prima
facie
view that the injury was exaggerated.
[13]
This Court disagrees with a submission that the first respondent was
behoved to present
medical evidence to show that the injuries are
such that the applicant could not have been able to perform the
discovered duties.
On the contrary, given the discovery made, it was
perfectly in order for the first respondent to take this
prima
facie
view:
“
In the light of
the above, it is Momentum’s considered opinion that based on
your recent social behaviour during the period
of your alleged
incapacity you were indeed able to attend a disciplinary inquiry
which would have required modest physical exertion.
Momentum can only
deduct that you have intentionally used the alleged injury of your
shoulder to not attend the disciplinary inquiry
and to frustrate the
process as to finalise the disciplinary inquiry.”
[3]
[14]
Given the conduct of the applicant, it is not too difficult to
observe that she did not
wish to be subjected to a disciplinary
process. She did everything she could to avoid this process. Regard
being had to the pattern
followed by the applicant, it is probable
that when she represented to her employer that she was badly injured,
she was not being
honest and truthful. She is a person, given the
pattern, who would stop at nothing to avoid the continuation of the
hearing. The
following finding by the third respondent is reasonable
or falls within the bounds of reasonableness in light of the common
cause
facts that the applicant indeed was involved in the discovered
activities.
“
All these
activities the applicant was involved in needed her to concentrate
and she could have done the same in the disciplinary
inquiry. It
would appear that the applicant
exaggerated the extent of her
injuries in order to avoid attending to her disciplinary hearing.”
[15]
Exaggerating injuries is misrepresentation of something as true which
is in fact false.
When reporting her injuries to her employer, the
applicant used the expression “
very badly
”. The
word ‘very’ is an adverb that seeks to denote something
in a high degree. It is often equated with the
word “
too”
which suggest an excessive and undesirable amount.
[16]
Clearly,
the injury of the applicant was not of a high degree. If it was, to
justify her failure to attend an inquiry, she should
not have been
able to attend to the activities mentioned above. By definition,
dishonesty means lack of honesty or integrity or
improbity. In
Nedcor
Bank Ltd v Frank
[4]
the Court held that dishonesty entails lack of integrity or
straightforwardness, in particular a willingness to steal, cheat, lie
or act fraudulently. There is no doubt in my mind that the applicant
exaggerated her injury. This exaggeration is an act that lacks
integrity or straightforwardness with a clear willingness to lie.
Therefore, it can never be doubted that the applicant was indeed
guilty of dishonesty. That being the case, a finding that her
dismissal was for a fair reason cannot be faulted.
[17]
A
submission was made that not in every case of dishonesty that
dismissal is an appropriate sanction. In support of that submission,
reliance was placed on the decision of the Labour Appeal Court in
Absa
Bank Ltd v Naidu and Others
[5]
.
Before I consider this judgment I need to say that arbitrators are
not, at large, to interfere with the sanction of the employer.
If the
sanction is fair, it is a reviewable irregularity for an arbitrator
to interfere with such a sanction. The question then
becomes, is it
fair to dismiss an employee guilty of dishonesty? The answer is a
resounding yes.
[18]
Turning to
the
Absa
decision
supra,
the
Court stated that “
of
course, it is accepted that not every misconduct offence involving
dishonesty warrants a sanction of dismissal
”.
However, it concluded that generally a sanction of dismissal is
justifiable and, indeed warranted where the dishonesty
involved is of
a gross nature. In confirming the fairness of dismissal of Naidu, the
Court took into account the senior position
in which she operated.
Similarly, the applicant was a senior employee to whom a premium of
trust was placed. The Court accepted
as being correct its earlier
decision in
Shoprite
Checkers (Pty) Ltd v CCMA and Others
[6]
.
[19]
Accordingly, in my view,
Absa
, is not authority for the
proposition that dishonesty does not always destroy trust. In my
view, the third respondent cannot be
faulted when he concluded thus
on the issue of the sanction of dismissal:
“
Although the
respondent made no attempts whatsoever to prove that the trust
relationship had broken down,
having been established that the
applicant was dishonest, an offence of dishonesty in itself destroys
the very fabric upon which
employment relationship is based”
[20]
The above finding resonates with what was said in
Shoprite
Checkers
and approved in
Absa
. Quintessentially, the
finding that the dismissal was substantively fair is one that a
reasonable commissioner can arrive at.
[21]
For all the above reasons, the application for review falls to be
dismissed. With regard
to costs, much as I was tempted to make an
order as to costs, I take note of the fact that the review was not
dismissed on the
basis of the peremption point. Had it been dismissed
for that, I would have been minded to make an order as to costs. When
it comes
to costs, this Court retains a wide discretion in terms of
section 162 of the LRA. In my view an appropriate order to make is
that
of no order as to costs.
[22]
In the results, the following order is made:
Order
1.
The application for review is dismissed.
2.
There is no order as to costs.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant :
Advocate R Grundlingh
Instructed
by :
Welman and Bloem Inc, Pretoria
For the First
Respondent : Advocate G Leslie SC
Instructed
by :
Louis Van Zyl, Claremont.
[1]
“
Please
note that your hearing will continue on 26 September 2016 at 09:00.
The venue that the hearing will be held in is Meeting
Room Macro in
the Annex Building at Head Office
.”
[2]
Act 66 of 1995, as amended.
[3]
Statement made in the notice to attend a hearing,
[4]
[2002] 23 ILJ 1243 (LAC).
[5]
[2015] 36 ILJ 602 (LAC).
[6]
[2008] 9 BLLR (LAC).