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[2019] ZALCJHB 245
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Thebe Investment Corporation (Pty) Ltd v Moni NO and Others (JR1775/17) [2019] ZALCJHB 245 (20 September 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1775/17
In
the matter between:
THEBE
INVESTMENT CORPORATION (PTY) LTD
Applicant
and
MONI,
NATASHA
N.O
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
VERONICA
MAFANYA
Third Respondent
Heard: 4
September 2019
Delivered: 20
September 2019
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction.
[1]
In this application, the applicant, Thebe Investment Corporation
(Pty)
Ltd (Thebe), seeks an order reviewing and setting aside the
arbitration award issued by the first respondent, Natasha Moni
(commissioner)
under case number GAJB26261-16, dated 5 July 2017,
under the auspices of the second respondent, the Commission for
Conciliation,
Mediation and Arbitration (CCMA). The commissioner made
the following award:
‘
1.1
The applicant’s dismissal is both procedurally and
substantively unfair.
1.2 The
respondent is to pay 12 x R31 604.00 which amount to R379 248.00
(three hundred and seventy-nine thousand
two hundred and forty-eight
rand) to the applicant within 14 days from receipt of the award.
1.3 No
order as to costs.’
[2] Thebe
contends that the commissioner committed a gross irregularity,
misconceived
the nature of the inquiry and arrived at a decision that
no reasonable decision maker could have arrived at.
[3]
The application is only opposed by the third respondent, Ms Veronica
Mafanya
(Ms Mafanya).
Factual
context
[4]
Ms Mafanya was in the employ of Thebe as Personal Assistant with
effect
from 2 August 2009. At the time of her dismissal, on 4
November 2016, Ms Mafanya held a position of Team Assistant.
[5]
Thebe is an investment company with two divisions, Thebe Services
Division
(TSD) which focuses on investments in the services industry
and Thebe Energy and Resources Division (TER) which focusses on
investments
in the energy resources sector.
[6]
Thebe underwent two interrelated phases of retrenchment in 2016.
Phase
1 retrenchment process (Phase 1) was concluded in May 2016. The
business rationale for Phase 1 was primarily to cut costs.
[7]
Prior to Phase 1, the Chief Executive Officers (CEO’s) of the
respective
divisions had their own Personal Assistants. Consequent to
Phase 1, the Personal Assistant positions were merged with the Team
Assistant positions. The Personal Assistant positions became
redundant as Team Assistants performed the same duties. One Team
Assistant
was allocated to support Mr Sizwe Mncwango (Mr Mncwango),
TER CEO and Mr Jerry Mabena (Mr Mabena), TSD CEO.
[8]
A number of the Personal Assistants were retrenched during Phase 1.
Ms
Mafanya was, however, one of the Personal Assistants that were
appointed to the position of Team Assistant and specifically to
support Messrs Mncwango and Mabena.
[9]
Thebe also communicated its intention to undertake Phase 2
restructuring
process (Phase 2) and the initial focus was solely to
restructure the Finance Department pursuant to the introduction of
the new
system.
[10]
At the conclusion of Phase 1, it became apparent to Thebe that the
cost cutting objectives
had not been achieved. In order to archive
the level of costs cutting, Thebe contemplated broadening the scope
of Phase 2, which
meant that positions other than those that were in
the Finance Department would be affected as well. The additional cost
cutting
intention of Phase 2 was not disclosed to the employees
during Phase 1 because it was only contemplated by Thebe after Phase
1
had been concluded.
[11]
Phase 1 was not well received by the employees and had a severe
negative impact on the
morale of those that were not retrenched.
Thebe had to embark on a very strong change management intervention
aimed at restoring
trust, faith and confidence of its employees.
[12]
The introduction of an additional purpose of Phase 2, which had a
potential to affect the
job security of a number of people other than
those employed in the finance department, had to be managed carefully
in order to
ensure that it did not ignite a widespread drop in morale
and productivity throughout the company once more. As a result, the
discussions
contemplating the extension of the scope of Phase 2 were
kept highly confidential until such time that Thebe had a clear idea
as
to who they believed would be affected by the retrenchments
occasioned by the additional costs cutting intention of Phase 2.
[13]
The prospect of such retrenchments could not, before it reaches the
appropriate level of
clarity, be disclosed to all the managers or
Executive Committee (Exco) members. In order to maintain the required
level of confidentiality
during the contemplated phase of the
additional cost cutting intention of Phase 2, the following measures
were adopted:
13.1
Only three people were privy to such contemplating discussions,
namely Mr Vusi Khanyile (Mr Khanyile),
Chairman of the Board of
Directors; Ms Amanda Earle (Earle), Human Resources Manager, and Mr
Mncwango.
12.2
All the discussions were incorporated in a single document that was
only shared between the above
mentioned three individuals. It was
electronically saved on Mr Mncwango’s desktop computer under
the heading ‘Cost
Containment/Restructuring’ (Phase 2
document) and there were no hard copies printed.
[14]
According to Thebe, the Phase 2 document was a spreadsheet that
contained the names of
all the people that could and could not
possibly be affected by the retrenchment. This list was not finalised
and was only a discussion
document.
[15]
Sometime in September 2016, before Phase 2 commenced, one of the
employees approached Mr
Mncwango and informed him about a rumour that
Thebe was planning on ‘chopping heads once more’. The
name of the person
who approached Mr Mncwango was never disclosed.
[16]
Mr Mncwango suspected Ms Mafanya as the source of the rumour since
she had access to his
office and could have seen the contents of the
Phase 2 document. He confronted Ms Mafanya twice on whether she had
disclosed the
contents of the Phase 2 document but she denied. It was
only on the third occasion that she conceded to disclosing the
contents
of the Phase 2 document.
[17]
On 21 October 2016, following a meeting with Mr Mncwango and Ms
Earle, Ms Mafanya was issued
with a notice of suspension and notice
to attend a disciplinary hearing in terms whereof she was charged
with two charges framed
as follows:
‘
Breach
of confidentiality and/or dishonesty – in that on 19 December
2016, when confronted about disclosing confidential information
regarding a possible retrenchment exercise to a colleague, you
initially declined before admitting to the disclosure. Which
resultantly
put the company at risk, and unsettled the staff with
information that is not confirmed and /or made known to the
employees.’
[18]
The chairperson of the disciplinary enquiry found Ms Mafanya guilty
as charged and recommended
a sanction of dismissal. Ms Mafanya lodged
an internal appeal which was unsuccessful. Ms Mafanya then referred
the matter to CCMA.
The arbitration proceedings sat after a failed
conciliation and the commissioner rendered the impugned award.
The
arbitration proceedings
[19]
At the commencement of the arbitration proceedings, Ms Mafanya’s
attorney summarised
the issues in dispute as follows:
19.1.
On procedural fairness, Ms Mafanya took issue with the fact that Mr
Mncwango was the initiator and the person
who ultimately affected her
dismissal as per the recommendations of the chairperson of the
disciplinary enquiry. Also that Mr Mncwango
was also involved in the
appeal process.
19.2.
On substantive fairness, Ms Mafanya conceded that she did share the
information with a colleague but disputed
the fact that it was
confidential. She also took issue with the fact that the Phase 2
document contained the details of the employees’
names who were
going to be effected by the Phase 2 restructuring.
[20]
Mr Mncwango testified that the planning discussion on Phase 2
commenced around August or
September 2016. The Phase 2 document was
the working document in a form of a spreadsheet with the names of the
employees who would
be affected and the comments on each individual
using different colours. The Phase 2 document was saved on his
computer icon and
remained there until he had finished working on it.
[21]
Before the
commencement of Phase 2 by the issuing of section 189(3) of the
Labour Relations Act
[1]
(LRA)
notices, Mr Mncwango was approached by someone who accused him of
intending on chopping heads. That was during late September
2016 and
early October 2016. The Phase 2 section 189 notices were only issued
early November 2016.
[22]
When confronted, Ms Mafanya denied that she had seen the Phase 2
document, Mr Mncwango
told Ms Mafanya that he was going to
investigate the matter but would not want to go behind her back,
hence he confronted her.
It was when she was confronted for the third
time that she conceded that she had seen the Phase 2 document and
discussed it with
someone. That she did during the meeting with Mr
Mncwango and Ms Earle on 21 October 2016.
[23]
It was HR that processed the applicant’s dismissal after
receiving the findings and
recommendations from the chairperson of
the disciplinary enquiry which were duly accepted by Mr Mncwango. Mr
Mncwango denied that
he participated in the appeal process. It was Mr
Khanyile who dealt with the appeal.
[24]
On the other hand, Ms Mafanya testified that she only saw the heading
but not the entire
Phase 2 document. She was adamant that she never
saw a spreadsheet with peoples’ names. However, Ms Mafanya
conceded that
she did speak to Ms Nobuzwe, one of Thebe’s
executives, about the Phase 2 document that she had seen on Mr
Mncwango’s
laptop.
[25]
It was her evidence, further, that She was very disappointed with Ms
Nobuzwe because she,
Ms Nobuzwe, used to discuss confidential issues
that had been discussed during the Exco meetings and she, Ms Mafanya,
never told
Mr Mncwango about them. As a result, she confronted Ms
Nobuzwe who denied ever telling Mr Mncwango about their conversation.
[26]
She lodged an appeal solely because she was challenging the procedure
that led to her dismissal
and the harshness of the sanction.
[27]
When she was quizzed about lying twice when Mr Mncwango approached
her, she said that she
had panicked. She testified that Ms Nobuzwe
knew about the contents of the Phase 2 document because it was
discussed during Exco
meetings. However, this version was not put to
Mr Mncwango.
[28]
Ms C Brown who was called by the applicant confirmed Mr Mncwango’s
evidence that
Phase 2 was only aimed at the Finance Department and
that the commencement date was never communicated to the staff during
Phase
1.
Review
test
[29]
The review
test is
comprehensively
spelt out in
Sidumo
and Another v Rustenburg Platinum Mines
[2]
and
subsequently
expounded in various
dicta
of both the Supreme Court of Appeal (SCA) and the Labour Appal
Court (LAC).
[3]
Pertinently,
in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others,
[4]
LAC underscored the fact that:
[15] …the
Labour Court’s approach to the review of the Commissioner's
award transcends the mere identification
of process related errors to
reveal the Commissioner’s basic failure to apply his mind to
considerations that were material
to the outcome of the dispute,
resulting in a misconceived hearing or a decision which no reasonable
decision-maker could reach
on all the evidence that was before him or
her.
[16]
Significantly, as was held by the SCA in
Herholdt
and endorsed
recently by this Court
in Head of the Department of Education v
Jonas Mohale Mofokeng and Others
, ‘for a defect in the
conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii) of
the LRA, the arbitrator must have
misconceived the nature of the enquiry or arrived at an unreasonable
result’.
Thus, as recognised in Mofokeng, it is not only the
unreasonableness of the outcome of an arbitrator's award which is
subject to
scrutiny, the arbitrator ‘must not misconceive the
inquiry or undertake the inquiry in a misconceived manner’, as
this
would not lead to a fair trial of the issues
. In further
approval of
Herholdt
, this Court in
Mofokeng
stated
that:
‘
Mere errors of
fact or law may not be enough to vitiate the award. Something more is
required. To repeat: flaws in the reasoning
of the arbitrator,
evidence in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material
factors etc. must be
assessed with the purpose of establishing whether the arbitrator has
undertaken the wrong inquiry, undertaken
the inquiry in the wrong
manner or arrived at an unreasonable result.
Lapses in lawfulness,
latent or patent irregularities and instances of dialectical
unreasonableness should be of such an order (singularly
or
cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the
material
that was before him or her
.’ (Emphasis added)
Did
Ms Mafanya disclose confidential information?
[30]
The commissioner found that there was sufficient evidence to
substantiate the Thebe’s
allegation that Ms Mafanya had
discussed the Phase 2 document she had seen on Mr Mncwango’s
laptop headed ‘cost containment/restructuring.
However, there
was insufficient evidence to prove that she had disclosed the
contents.
[31]
In reaching this conclusion, the commissioner was clearly oblivious
of the concession by
Ms Mafanya that she did discuss the Phase 2
document with Ms Nobuzwe because she was afraid. She also testified
that she was angry
with Ms Nobuzwe as she did not expect her to go
and tell Mr Mncwango because she, Ms Nobuzwe, used to tell her
confidential information
that had been discussed during Exco
meetings. Also, if Ms Mafanya only saw the heading of the Phase 2
document, what was difficult
with being upfront with Mr Mncwango the
first time she was confronted.
[32]
Matters got worse for Ms Mafanya because her main defence was that
the information she
had disclosed had already been public knowledge.
However, the heading of the Phase 2 document only stated ‘costs
containment/restructuring’
and it is common cause that there
was no date indicated. It is, therefore, difficult to perceive how Ms
Mafanya managed to fathom
that the document pertained to the eminent
Phase 2 retrenchments without opening and reading the contents
thereof.
[33]
Mr Mncwango’s evidence that the scope of Phase 2 was extended
to include cost cutting
measures that affected the whole of the
organisation and that the discussion in that regard was top secret
was not challenged.
Also, Mr Mncwango testified that Thebe was
seriously prejudiced because the information that had been disclosed
was highly confidential
and sensitive as the scope of the Phase 2
restructuring had not been crystallised and communicated formally.
The Phase 2 document
was a work in progress but already contained
names of employees whose positions had been considered for
restructuring, so he further
testified. This evidence was never
challenged.
[34]
In the light of Mr Mncwango’s unchallenged evidence, nothing
much turns on the minute
of the meeting of 21 October 2017.
Notwithstanding, Ms Mafanya conceded that she did indeed confess to
the disclosure of the contents
of the Phase 2 document as duly
recorded in the minute. Obviously, there was no need to call Ms Earle
to testify.
[35]
In my view, the only conclusion that should have been deduced from
the common cause facts
and the unchallenged evidence ought to have
been that the applicant saw the confidential information contained in
the Phase 2 document
that was on Mr Mncwango’s laptop and
discussed it with Ms Nobuzwe. In doing so, Ms Mafanya disclosed the
confidential information
without permission. Therefore, there is no
merit in the submission by Mr Sineke, who appeared on behalf of the
applicant, that
Thebe failed to prove that Ms Mafanya disclosed the
confidential information.
Was
Ms Mafanya dishonest?
[36]
Ms Mafanya was offered an opportunity to be upfront with Mr Mncwango
twice but to no avail.
She was ultimately constrained to confess her
misdeed when she saw that Mr Mncwango was not budging. Clearly, the
commissioner’s
finding that ‘her lie was not deliberate’
is incongruous with the evidence that was before her. In any event,
even
that confession was superficial and ephemeral. Ms Mafanya
subsequently
denied ever seeing the contents of
the Phase 2 document despite a concession that she did discuss it
with Ms Nobuzwe.
[37]
Mr Orton, who appeared on behalf of Thebe, correctly submitted that
Ms Mafanya was insincere
and unrepentant. Mr Sineke did not even
attempt to address this issue in his submissions for obvious
reasons.
Was
the sanction of dismissal appropriateness?
[38]
Ms Mafanya was an assistant to two CEO’s and inherent in that
position is the confidentiality
undertaking as she had access to
confidential information that other ordinary employees and executives
would not normally be privy
to. In this instance, she conceded during
cross examination that the information contained in the Phase 2
document was confidential
even though she was adamant that she only
saw the heading.
[39]
Given my findings above, the probabilities support the version of
Thebe that Ms Mafanya
did see the confidential information contained
in the Phase 2 document which she, in turn, disclosed to Ms Nobuzwe.
[40]
It is a well-accepted principle that dishonesty offends the core of
the employment relationship,
which is trust, especially in the
circumstances typified in this matter. Ms Mafanya was a Team
Assistant who, by virtue of her
position, was expected to demonstrate
the utmost good faith in her dealings with offices of the CEO’s.
It is without doubt
that the breach of utmost good faith in this
instance rendered the continued employment relationship intolerable.
Moreover, Ms
Mafanya did not show even a trickle of contrition.
[41]
In
Theewaterskloof
Municipality v SALGBC and Others,
[5]
quoted with approval by the LAC in
Sylvania
Metals (Pty) Ltd v Mello N.O. and Others
,
[6]
where this Court ‘recognised that the general principle is
whether the conduct of the employee is incompatible with the trust
and confidence necessary for the continuation of the employment
relationship; and that where an employee has been afforded an
opportunity to correct his or her behaviour and nevertheless persists
in taking a confrontational course ‘there can be very
little
room for the notion of corrective discipline’’.
[42]
Clearly, Ms Mafanya’s clean disciplinary record and personal
circumstances could
not have been of any assistance.
Procedural
fairness
[43]
Mr Mncwango’s role during the disciplinary enquiry and the
internal appeal were the
only issues in dispute on procedural
fairness. Ms Mafanya seemed to have bemoaned the fact that Mr
Mncwango was the initiator during
her disciplinary enquiry and
subsequently accepted the chairperson’s findings and
recommendations.
[44]
It is not clear, nonetheless, as to how Ms Mafanya was prejudiced by
such conduct as no
evidence was led in this regard. However, Mr
Mncwango testified that the chairperson of the disciplinary enquiry
was an external
person whose recommendation had to be endorsed by
Thebe and that is what he did as the TER’s CEO.
[45]
Also, Mr Mncwango’s evidence that he was never involved in the
appeal process was
never challenged.
[46]
The
commissioner clearly misdirected herself by pronouncing on issues
that were not in dispute. In the final analysis, it is clear
that the
procedure that Thebe had followed during and preceding Ms Mafanya’s
dismissal was in accordance with the test outlined
in
Avril
Elizabeth Home for the Handicapped v CCMA and Others
[7]
referred to by the commissioner.
Conclusion
[47]
In all the circumstances,
the commissioner
failed to apply her mind to issues which, as shown above, were
material to the determination of the dispute. As
a result, she
clearly misconceived the nature of the enquiry by failing to deal
with the issues raised for determination; which
were disclosure of
confidential information and dishonesty.
[48]
I am satisfied that the award
cannot stand
as it is not sustainable on the facts of this case and certainly does
not fall within the category of reasonable decision
makers.
Remedy
[49]
In the interest of justice, I am hesitant to remit
this matter back to the CCMA because of the consequential delays.
Also, there
is no challenge on the adequacy of the record of the
arbitration proceedings. As such, I am in a position to deal with the
matter
to finality.
[50]
Given the findings I have arrived at above, it is
clear that the dismissal of Ms Mafanya was substantively and
procedurally fair.
Costs
[51]
In accordance with the requirements of the law and
fairness, each party must carry its own costs.
[52]
In the result I make the following order.
Order:
1.
The arbitration award dated 5 July 2017 issued under case number
GAJB26261-16 is reviewed and set aside and substituted
with the
following order:
1.1 The dismissal of the
third respondent, Ms Mafanya, is substantively and procedurally fair.
2.
There is no order as to costs.
____________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr R
Orton of Snyman Attorneys
For
the Respondents: Mr W Sineke of Sineke Attorneys
[1]
Act 66 of 1995 as amended.
[2]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd
and
Others
[2007] 12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC) paras 78 and 79.
[3]
See:
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC);
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074 (SCA).
[4]
2014] ZALAC 81
;
[2015] 5 BLLR 484
(LAC); (2015) 36 ILJ 1511 (LAC) at
paras 15 to 16.
[5]
(2010) 31 ILJ 2475 (LC) at para 37.
[6]
(JA83/2015)
[2016] ZALAC 52
(22 November 2016) at para 27.
Unreported.
[7]
(2006) 27 ILJ 404 (LC);
[2006] 9 BLLR 833
(LC).