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[2019] ZALCJHB 337
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Dean v Commission for Conciliation Mediation and Arbitration and Others (JR1956/16) [2019] ZALCJHB 337 (3 December 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
1956/16
In
the matter between:
PETER
DEAN
Applicant
and
THE COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
ARNE SJOLUND N. O
Second Respondent
FESTIVE
(A DIVISION OF ASTRAL
OPERATIONS
LIMITED)
Third Respondent
Heard
:
26 November 2019
Delivered
:
03 December 2019
Summary:
Review – although arbitration is a hearing
de novo
– a commissioner does not start at a clean slate. Duties –
to determine, through evidence, whether the misconduct that
led to a
dismissal is established and whether the sanction of dismissal is
fair. The duty of the reviewing Court is not to appeal
but to review
by applying the test whether the decision arrived at by a
commissioner tasked with the determination of fairness
is one that a
reasonable decision maker may arrive at. Held: (1) The application
for review is dismissed. (2) No order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an application seeking to review and set aside an arbitration
award issued by the second respondent, in terms of which the
dismissal of the applicant was found to be fair. The applicant was
dismissed for misconduct of fraud and/or dishonesty. The applicant
contends that the award is defective and ought to be set aside
by
this Court.
Background
facts
[2]
The applicant was employed by the
respondent on or about 18 December 2012 as Refrigerator Foreman.
Following an internal investigation,
the applicant was charged with
three acts of misconduct. Two of the acts involved fraud and or
dishonesty in that for a period
of about eight months (January to
August 2015), the applicant improperly claimed overtime, which could
not be reconciled with the
clock cards and that for the month of
September 2015 there were no clock cards for the claimed overtime.
[3]
The applicant was found guilty of two of
the allegations of fraud and dishonesty in relation to the months of
April and September
2015 overtime claims. Resultantly, on 25 December
2015, the applicant was dismissed. Aggrieved by his dismissal, the
applicant
referred a dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA) alleging unfair dismissal. At the
arbitration
proceedings, the applicant sought legal representation.
On 30 March 2016, the second respondent issued a written ruling
refusing
legal representation. After hearing evidence, the second
respondent issued the impugned award on 9 August 2016.
[4]
Aggrieved by the award dated 9 August 2016,
on or about 21 September 2016, the applicant launched the present
application. The application
is opposed by the third respondent.
Grounds
of review
[5]
In his founding papers, the applicant
alleged that the award is not one that a reasonable commissioner
would arrive at when the
evidence and the law are taken into
consideration. He further alleged that the award is riddled with
defects because:
5.1
The
second respondent failed to comply with provisions of the Labour
Relations Act
[1]
(LRA) with
regard to conducting a fair and proper arbitration;
5.2
Factual findings did not correspond with
the evidence placed before her;
5.3
She exceeded her powers in that she acted
in an
ultra vires
manner;
5.4
Failed to apply mind to the facts and the
law;
5.5
Issued an irrational, unjustifiable and an
unreasonable award;
5.6
Failed to assess the evidence;
5.7
Denied legal representation and;
5.8
Committed gross irregularity and
misconduct.
The
issue of legal representation
[6]
On this issue, the second respondent issued a separate written ruling
on 30 March 2016. In terms of section 158 (1) (g) of the LRA, this
Court retains jurisdiction to review the performance or purported
performance of any function provided for in the LRA on any grounds
permissible in law. The applicant in his notice of motion did
not
seek an order to review this ruling. What the applicant did,
improperly so, was to raise the refusal of legal representation
as a
ground of reviewing the award of 9 August 2016. Thus, the ruling of
30 March 2016, has not been attacked and shall remain
valid and
binding.
[7]
When this issue was raised with Mr Du Randt, appearing for the
applicant,
he submitted that section 158 (1B) of the Act prevented a
piecemeal attack. It is indeed so that the LRA discourages piecemeal
approaches. However, such does not mean that a separate decision may
be attacked in the papers where such a ruling is not referred
to as
being attacked. Therefore, the submission is unhelpful to the
applicant. Until set aside by a competent Court, the ruling
of 30
March 2016 remains valid and binding on the parties.
Evaluation
of the merits of the review
[8]
The applicant was dismissed because he made himself guilty of fraud
and
or dishonesty by claiming overtime for the month of April and
September 2015. The second respondent was faced with two conflicting
versions. The first of which was that the third respondent contended
that there existed a rule that required the applicant to clock
in and
out when undertaking overtime duties. The applicant’s version
was that the rule was only introduced in October 2014.
In order to
resolve this disputed fact, the second respondent took into account a
common cause fact that in March 2015, the applicant
was penalized for
failing to prove that he worked overtime and has since failed to
challenge that. On that, she drew an inference
that the applicant
agreed that he did not work the time claimed. This Court is unable to
fault this inference particularly because
it is one a reasonable
decision maker may draw.
[9]
There was no dispute that the applicant failed to clock in when he
allegedly
worked overtime. In argument, Mr Durandt, submitted that it
was impossible for the applicant to clock as he did not physically
come to work. This is a lame excuse, given the fact that on the
applicant’s own version, from October 2014, a rule was
introduced
to clock in. In the Court’s view, this rule was
introduced for a good reason. The reason was simply to curb claiming
of overtime
not worked. If an employee clocks in when commencing
overtime duties and clocking out after the duties, an employer is
able to
firstly confirm that overtime work was indeed undertaken and
secondly to confirm the hours worked. It is a logical and reasonable
rule to put in place.
The
April 2015 claim
[10]
It is undisputed that the April 2015 overtime claim was compiled and
signed by the applicant.
For 12 April 2015, there is clear evidence
that the applicant did not clock in or out as required by the rule.
Instead, it is recorded
by hand that “
went to Seekat for
motors and went to PLA to work on project for killing
”. In
line with the rule, there is no evidence that indeed the applicant
worked overtime as claimed. The applicant bore the
evidentiary burden
to show that indeed he worked overtime and for how long. Had he
complied with the clocking rule, it was going
to be easy to ascertain
this. The applicant knew from October 2014 that he needed to clock in
and out yet he simply failed to do
so. It must follow that in failing
to do so the applicant must have been hiding something from his
employer. The following finding
by the second respondent demonstrates
the point and cannot faulted:
‘
This would suggest
the respondent version of what transpired over a long period of time
where the applicant failed or neglected
to clock and claimed that he
was at work whilst he was not and claimed time and overtime would be
the more probable version.’
[11]
The version presented by Mr Harman was that the applicant was not at
work and claimed time
he was not entitled to. He reported this to Mr,
Muller who reprimanded the applicant. The applicant as testified
changed the behaviour
but later reverted to the not clocking and
claimed time he did not work.
[12]
When an
employee claims overtime that he or she did not work, that employee
is misrepresenting the true facts with a clear intention
to fleece
the employer. That is fraud and dishonesty. A finding that the
applicant is guilty of fraud and dishonesty as charged
is one that a
reasonable commissioner may arrive at. Heavy reliance was placed on
the decision of the Labour Appeal Court in
Drs
Dietrich Voigt and Mia (Pty) t/a Pathcare v Bennet and others
[2]
.
The case is distinguishable on the facts. There, the employee
inflated the rate for overtime. The employee claimed at the
rate of
1.5 as opposed to1.0. When the overpayment was discovered the
employee refunded the money. The employee there failed to
clock out
and as a result the lunch breaks were not deducted from the overtime.
[13]
In the matter before me, given the applicable rule of clocking in and
out, the only manner
to prove that the applicant indeed worked is the
clock cards. The evidence points to the fact that the applicant did
not work as
testified by Mr Harman. Therefore, the principle
enunciated in the
Dietrich
case is not applicable to the
applicant.
The
September 2015 claim
[14] In
relation to this claim, the allegation specifically stated that no
clock cards were available
for the claimed overtime. The evidence did
point that the applicant compiled overtime claim for the month of
September. Indeed
at the time of the investigations leading to his
suspension, the claim form, as compiled by him, was not signed and/or
submitted
for approval. The documents to have been used for this
claim indicated that there was no clocking, yet the applicant was
en
route
to claim again overtime to the tune of about R5 644.50.
During evidence, Harman insisted that clocking needed to be proven.
The fact that the applicant was still to submit other clock cards is
nothing but an afterthought. Thus, the applicant was equally
guilty
of not providing the clock cards for the hours already reflected in
the compiled September claim. A conclusion that the
applicant was
guilty as charged is unassailable.
The
grounds considered.
[15]
Other than a bald allegation of failure to comply with the LRA, there
is no indication
as to which provisions of the LRA were not complied
with. Thus, this ground is not entertainable. Similarly, there is no
basis
for the alleged
ultra vires
acting. On the contrary, the
findings of the second respondent are supported by the evidence
presented before her. Failure to apply
mind entails considering
irrelevant factors and ignoring the relevant ones. There is no
evidence to support the ground of failure
to apply her mind. Proper
reading of the award reveals that the second respondent assessed the
evidence that was presented before
her. Overall, the award is one
that a reasonable commissioner may arrive at. This Court only possess
reviewing powers and does
not have appeal powers. Properly
considered, this is an appeal disguised as a review.
Conclusion
[16]
In summary, the denial of legal representation is a subject of a
separate ruling which
has not been challenged. The findings that the
applicant was guilty as charged are unshakeable and are consistent
with the evidence
presented. All the grounds punted for are without
merit. The award falls within the bounds of reasonableness thus
unassailable
in law.
[17]
In the results I make the following orders:
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:
J Du Randt of DPP Attorneys,
Rosebank.
For
the Respondent:
L Salt of ENSafrica, Sandton.
[1]
No. 66 of 1995, as amended.
[2]
[2019] 8 BLLR 741
(LAC)