About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2019
>>
[2019] ZALCCT 43
|
|
Khana v Langeberg & Ashton Foods (Pty) Ltd and Others (C140/17) [2019] ZALCCT 43 (12 December 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C140/17
In the matter between:
NICO JOHN
KHANA
Applicant
and
LANGEBERG & ASHTON
FOODS (PTY) LTD
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
S. WRIGHT
N.
O
Third
Respondent
Delivered:
12 December 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
With this application, the applicant seeks an order reviewing and
setting
aside the arbitration award dated 24 November 2016
issued by the third respondent (Commissioner) acting under the
auspices
of the second respondent, the Commission for Conciliation
Mediation and Arbitration (CCMA). The Commissioner had dismissed the
applicant’s claim of an alleged unfair dismissal.
[2]
The applicant also seeks condonation for the late filing of the
review
application. Both applications were opposed by the first
respondent, who for the sake of convenience will be referred to as
the
Employer.
[3]
The applicant (Mr Khana) was employed by the Employer effective from
11 February 2013
as a clerk. At the time of his dismissal
on 18 March 2016, he held the position of Acting Team Leader. The
Employer is a fruits
and vegetables canning manufacturing company.
[4]
The allegations against the applicant were that on 22 February 2016
during a stock take exercise, it was discovered that three pallets of
export stock to the value R39 000.00 were reflected
as having
been moved to the designated waste area, to be written off. The
allegation was further that the applicant’s computer
profile or
password had been used to execute the purported movement of the
stock.
[5]
The applicant had denied the allegation that he had personally
performed
the movement of stock on the computer system. He alleged
that as per common practice, his password was shared with other
employees
including his subordinates, and that any of these other
employees could have executed the tasks on the computer system using
his
profile.
[6]
The applicant was subsequently called to a disciplinary hearing to
answer
to the following allegations;
a)
manipulating the stock management process under his care and;
b)
sharing his
Oracle
password with other employees.
[7]
At the conclusion of the disciplinary hearing, he was found guilty of
the above charges and a sanction of dismissal was imposed. Aggrieved
by his dismissal the applicant referred an unfair dismissal
dispute
to the CCMA. When attempts at conciliation failed, the matter came
before the Commissioner for arbitration, who had then
dismissed the
applicant’s claim.
[8]
The review application was filed outside the stipulated timeframes.
The
arbitration award was issued on 24 November 2016, and
the review application was launched on or about 21 April 2017.
It was conceded on behalf of the applicant that the delay was about
112 days (Outside the statutory six weeks’ period).
[9]
The
provisions of section 145(1A) of the LRA read with rule 12 of the
Rules of this Court enjoins the Court with a discretion to
condone
the non-compliance with the prescribed timeframes on good cause
shown. In determining whether good cause was shown, the
Court must
exercise its discretion upon a consideration of all the relevant
facts, including but not limited to the degree of lateness,
the
explanation therefor, the prospects of success, prejudice that may be
suffered if the condonation is granted or refused and
the importance
of the case. Ultimately, the interests of justice, which involves a
consideration of all these factors will dictate
whether condonation
ought to be granted or not
[1]
.
[10]
In explaining the delay, the applicant averred that;
10.1
Subsequent to the arbitration award being issued, he had every
intention of pursuing the review
proceedings, but did not have the
necessary funds and support to do so as he did not belong to a union.
10.2
Although he was represented by Mr Scheepers of Solidarity at the
arbitration proceedings, he
was however not a member of the Union.
Upon having received a copy of the arbitration award, he went back to
Solidarity but was
advised him to secure an attorney for himself if
he wanted to pursue a review.
10.3
On 22 December 2016, he had further engaged Solidarity with
a view of persuading it
that his review had merits and that he should
be assisted. Solidarity had allegedly undertaken to look into the
matter, and had
in fact, sent correspondence to Employer’s
senior manager, Mr Schierhout, with a view of persuading him to
reconsider the
dismissal in the light of the evidence.
10.4
When Schierhout did not reply to the correspondence, the applicant
had through Solidarity on
12 January 2017, addressed
correspondence to Tiger Brand Ethics Line requesting them to
investigate the circumstances
of his dismissal.
10.5
In January 2017 he unsuccessfully sought assistance from the
local ANC office. In February 2017,
assistance was sought from
another trade union (BAWUSA), which undertook to assist but failed to
do so.
10.6
It was only in March 2017 that he became aware of a firm of
labour consultants that could
assist with the matter, and he had held
first consultations with its official on 9 March 2017.
[11]
The Employer opposed the application for condonation on the basis
that;
11.1
The applicant attributed the blame for the lateness wholly on his
financial circumstances, but
in the same vein, had failed to act with
the necessary haste in filing his review application once the
necessary legal representation
was secured.
11.2
It took the applicant an additional 36 days from his first
consultation meeting with his legal
representatives on 9 March 2017
to eventually deliver his papers in respect of the review
application. This was also
despite the fact that the founding
affidavit was commissioned on 23 March 2017.
11.3
The applicant had failed to make any averments in regards to his
prospects of success in the
review application.
11.4
The Employer further took issue with certain documentation that was
attached to the founding
affidavits that it was averred was
discovered for the first time in these proceedings.
11.5
It would suffer prejudice if the condonation application were to be
granted on basis that it
has continuously dedicated time and
resources in defending this dispute; that the proceedings before this
Court were frivolous;
and the condonation application itself was
flawed as the applicant did little to address the relevant
requirements for condonation.
[12]
Having had regard to the averments made in support of the
application, it ought to be concluded
that contrary to the
contentions of the applicant, a delay of 112 days is excessive. It is
correct as pointed out on behalf of
the Employer that the applicant
was required to show good cause by
inter alia
, giving an
explanation for each period of the delay.
[13]
As correctly pointed out on behalf of the Employer, the applicant
appears to have attributed
the delay to a lack of resources and
access to legal representation. To the extent that he had approached
Solidarity, which in
any event was not obliged to assist him as he
was not a member, that union ought to have been aware of the time
periods within
which the review ought to have been filed.
[14]
Even if it was argued on his behalf that he was only able to secure
legal representation
from 9 March 2017, nothing much
happened thereafter with a view of expediting the review application.
As at March 2017,
the
dies
for filing the review
application had passed, and the labour consultants would have
realised that fact and acted accordingly.
[15]
It was conceded that at most, about 40 days went passed since the
labour consultants agreed
to take up the matter. Even on a generous
consideration of the delay, and despite being aware that the time
periods had lapsed,
no effort was made to expedite the filing of the
review application, and furthermore, no explanation whatsoever was
furnished for
the delay from March 2017 until the review was
filed on 21 April 2017.
[16]
In the end, even if it were to be accepted that the applicant,
despite his financial constraints
had made attempts to get assistance
in pursuing the review, his explanation did not cover the periods of
the delay, especially
after he had obtained legal assistance.
Accordingly, the explanation is considered to be inadequate and
unacceptable.
[17]
The applicant’s application for condonation however falls flat
insofar as no averments
were made in regards to his prospects of
success. It was conceded that the prospects were not addressed, and
the explanation was
that since the review application was filed
simultaneously, there was no need to burden the Court’s papers
as reference was
made to the review application in the condonation
application. This contention was however not supported by the
pleadings, as nowhere
in the founding affidavit was it indicated that
the two applications ought to be read together.
[18]
Even if the Court were to adopt a liberal or pragmatic approach as
submitted on behalf
of the applicant, and to consider the prospects
of success, the invariable conclusion to be reached upon a
consideration of the
facts before the Commissioner and her
conclusions, is that the review application has no merit for the
reasons that appear below.
[19]
The undisputed evidence before the Commissioner was that three
pallets were transferred
as a result of the manipulation of the
stock, which had caused a loss of R39 000.00, as the stock was
written off. The applicant’s
brother happened to be also
employed in the waste section where he was responsible for sorting
waste. The Employer’s case
was it had a policy in place, in
terms of which the sharing of passwords amongst employees was
prohibited. The stock in question
was transferred on 5 January 2016.
[20]
The evidence of the Employer’s Oracle Clerk, Ms B Standvleidt,
was that as part of
her functions to check the bins during a stock
take, she discovered that the stock in question was not in the bin
despite the bincard
having stated otherwise. Her investigations had
established that the employee had indeed transferred the stock from
the J area
to K7 (with the latter being the waste sorting area, where
the applicant’s brother was employed as a waste sorter). Upon
approaching the applicant and questioning him about the discrepancy,
the latter responded in a crude manner by saying to her that;
“
ek
moet nie hom kak vra”
. Standvleidt had further testified
that at some point, she had overheard the applicant and his brother
devising a plan to remove
the stock in question.
[21]
The applicant’s testimony on the other hand was that the
transfer of the goods to
the waste area after being captured on the
computer system, took place after he had obtained permission from his
superior to allow
his password to be used by other employees, and it
was these other employees who could have been responsible for the
incorrect
transfer of the stock.
[22]
The applicant’s further testimony was that Standvleidt could
have been responsible
for using his password. He had however conceded
to having responded to Standvleidt in the manner she had described
when enquiries
were made with him about the stock and the
discrepancies. He had further accused the Employer of having acted
inconsistently by
merely issuing final written warning to other
employees in regard to the sharing of passwords, whilst he on the
other hand was
dismissed.
[23]
A witness on behalf of the Applicant, Mr Van Rooi, who was previously
employed as Warehouse
Controller confirmed having permitted the
applicant to share his password with administration clerks. He was
aware of the risks
associated with this practice especially after one
Schierhout had informed the employees to stop the practice.
[24]
In the award, the Commissioner found that the dismissal of the
applicant was procedurally
and substantively on the basis that;
24.1.
The evidence of Standvliedt
insofar as she had enquired from the applicant about the stock, which
enquiries were met with a crude response remained undisputed,
and was
an indictment on the conduct of the applicant in respect of the
discrepancies complained of.
24.2.
The applicant’s version that the discovery and the subsequent
reporting of the discrepancy was a form
of vengeance perpetrated by
Standvliedt in view of him having initiated disciplinary proceedings
against her in the past, which
had resulted with her being issued
with a final written warning was to be rejected as a lame attempt at
bolstering his case.
24.3.
Standvleidt’s version that she had overheard the applicant
devising a plan with his brother who was
employed in the waste
disposal section to write off the stock was found to be probable.
This was particularly based on the applicant’s
brother’s
testimony on behalf of the Employer in the internal disciplinary
hearing, which was confirmed by Matthews that
indeed the applicant
and his brother had a discussion in respect of writing off the
material stock.
24.4.
A negative inference was to be drawn from the fact that the applicant
failed to call his brother to testify
on his behalf to rebut
Standvleidt's evidence. This was even moreso since the applicant’s
brother was present at the arbitration
proceedings. The Commissioner
concluded that on a balance of probabilities, it ought to be found
that indeed such a plan was devised
between the applicant and his
brother to dispose of the stock.
24.5.
It was immaterial whether the stock was erroneously moved by another
person or the applicant himself in
view of the uncontested evidence
that it was brought to the latter’s attention that certain
items had been moved incorrectly
or that there was a discrepancy.
24.6.
The applicant had a positive duty to disclose the discrepancies and
to correct it, and to further inform
his superiors or the warehouse
manager. Since the applicant failed to do so, his integrity was
brought into question particularly
in view of the fact that at the
material time, he held the position of Acting Team Leader, and was
entrusted with the assets of
the Employer, and was further entrusted
to execute his duties diligently and with honesty.
24.7.
Nothing could be read into the applicant’s evidence that it
took Standvliedt almost a period of a
month to report the discrepancy
to the warehouse manager.
24.8.
It was immaterial that the applicant contended that someone else
might have erroneously moved the stock
as a consequence of password
sharing which was a common practice within the third respondent. In
the Commissioner’s view,
what was material was the fact that
the applicant became aware of the erroneous movement of stock and
sought to conceal it, as
subsequent formal investigations led to the
applicant’s conduct being discovered.
24.9.
Even though it were to be accepted that password sharing was a common
practice at the workplace, Mr Schierhout,
a senior manager, had
warned employees against such a practice on 22 September 2015.
24.10.
In the Commissioner’s view the fact that the applicant had
adduced the evidence of the senior manager to show that
there was a
practice of sharing a password within the third respondent which did
not assist his case in view of the fact that the
applicant himself
conceded under cross-examination that the instruction had been issued
by Schierhout, a senior manager with final
authority in respect of
the matters in the production plant, that the practice of password
sharing passwords must come to an end.
24.11.
The Commissioner further held that it was uncontested that there was
a pop-up message created by the IT department that encouraged
employees to protect their password. Taking that into account, the
Commissioner drew a negative inference on the credibility of
Van
Rooi’s testimony on behalf of the applicant that he was unaware
of an email which was sent to all employees including
Van Rooi.
24.12.
In respect of the applicant’s contention that the disciplinary
processes against him amounted to inconsistency, the
Commissioner
noted that the similar instances that the applicant had referred to
had occurred prior to the instruction issued by
Schierhout on
22 September 2015 and further that the cases referred to by
the applicant in comparison to his case in
which final written
warnings were issued did not relate to the allegations of stock
manipulation. Moreover, in the Commissioner’s
view, it was
trite that the chairperson of the disciplinary hearing cannot be
bound by the findings and conclusions of another
person who had
reached a different outcome on sanction on similar facts in a
different unrelated hearing. The Commissioner in regard
concluded
that inconsistency had not been shown.
24.13.
The Commissioner further concluded that the evidence showed that the
applicant was guilty of the charges preferred against
him; that his
wrongful conduct had been aggravated by the position he occupied; and
further that he had attempted to conceal the
erroneous movement of
stock. The attempted concealment in the Commissioner’s view
amounted to an act of dishonesty which
destroyed
the trust relationship between the applicant and the Employer.
24.14.
The Commissioner further held that the value of the stock in question
was substantial, and that the applicant had not provided
any
compelling reason why the dismissal should be interfered with.
24.15.
The Commissioner further considered the applicant’s complaint
that he was not afforded an opportunity to utilise a
representative
of his choice which resulted in his dismissal being procedurally
unfair. In this regard, the Commissioner concluded
that;
24.15.1
Although the applicant was not a member of Solidarity, he had
nevertheless requested its official to represent
him at the
disciplinary proceedings, which request was only made at 06:00 in the
morning of the hearing which was scheduled to
commence at 08:00.
24.15.2
The request for the representation having been made outside the
perimeters of reasonableness, the Commissioner
concluded that the
chairperson of the disciplinary hearing had not denied the applicant
the right to a representation of his choice
but in fact the
chairperson had provided the applicant with a full opportunity to
present his case. The Commissioner concluded
that there was no basis
to concluded that dismissal of the applicant was procedurally unfair.
[25]
The
test on review is trite, and the enquiry is whether the decision
reached by the commissioner is one that a reasonable decision-maker
could not reach
[2]
.
The
applicant sought to have the arbitration award reviewed and set aside
on a variety of grounds, including that the Commissioner
failed to
properly consider the issue of inconsistency; that there was no
evidence to show misconduct placed before the Commissioner;
and that
the sanction was inappropriate.
[26]
Having had regard to the conclusions reached in the arbitration
award, there can be no
doubt that the Commissioner was alive to the
dispute and the issues that she was called upon to determine. She had
applied her
mind to those issues and the evidence presented, and came
to a decision that fell within the bounds of reasonableness.
[27]
In this regard, to the extent that the applicant had alleged that his
password was used
by other employees, that on its own is a concession
that the misconduct complained of was committed. Worst still, the
Commissioner
had correctly concluded that even if the applicant was
not responsible effecting the transfer on the system, he was aware of
the
discrepancies arising therefrom, and had despite his position and
responsibilities, failed to raise alarm bells or take corrective
action. His conduct in this regard clearly raised questions about his
integrity as Acting Team leader and custodian of the Employer’s
assets.
[28]
The undisputed evidence however was clearly that a standing
instruction issued by Schierhout
in September 2015 was in place,
in terms of which all employees were advised to stop the practice of
sharing passwords. The
incident leading to the applicant’s
dismissal took place in January 2016. Clearly the applicant was
aware of that instruction,
and his contentions that his superior had
allowed him to share his password, even if to be believed, could not
have been an excuse
in the light of the standing instruction issued
by a senior manager with the ultimate authority on the matter, and
also given the
risks associated with the sharing of passwords, which
the instruction sought to mitigate.
[29]
The alleged use of the applicant’s password by other employees
is secondary when
the other evidence in respect of the charge of
manipulating the stock management process is taken into account.
Standvleidt had
confronted the applicant about the discrepancies in
the stock take. Rather than giving a reasonable and plausible
explanation,
particularly given the position he held and its
concomitant responsibilities, the applicant’s response to
Standvleidt was
rude, crude, demeaning and unwarranted, and the
Commissioner correctly drew adverse inferences from that response. If
ever there
was any truth in the applicant’s defence that other
employees had used his password, or that he was given permission by
another
senior manager to allow his password to be used, that
explanation would have been appropriate at that stage when
Standvleidt made
enquiries.
[30]
If ever there was any doubt in respect of the seriousness of the
second charge, Standvleidt
had further testified that she had
overheard the applicant devising a plan with his brother to
manipulate the system in respect
of the stock that was sent to the
waste section. Evidence presented before the Commissioner was that
the applicant’s brother,
who worked in the waste section had
written off the stock in question, and was also dismissed.
[31]
In my view, the applicant’s case collapsed at the point of
Standvleidt’s evidence
in regards to what she had overheard in
respect of the plan, and the applicant’s brother’s
evidence at the disciplinary
enquiry, and the latter’s refusal
to testify at the arbitration proceedings. The applicant’s
brother had testified
against him in the disciplinary enquiry and
confirmed that such a plan was indeed devised between the two of
them. The contention
that there was no evidence that the applicant’s
brother had confirmed the plan between the two of them has no merit.
This
is so in that if indeed the brother had not given such evidence
at the disciplinary enquiry, nothing prevented him from testifying
and refuting those allegations at the arbitration proceedings where
he was present.
[32]
Based on the evidence led by the applicant’s brother at the
disciplinary enquiry,
which evidence the applicant had the
opportunity to rebut at the arbitration proceedings and had failed to
do so, clearly there
was reason to conclude that he (applicant) had
conducted himself in the utmost dishonest manner, which conduct
completely destroyed
a trust relationship between him and the
Employer as the Commissioner had correctly found. I therefore fail to
appreciate from
the submissions made on behalf of the applicant, what
other ‘
compelling evidence’
the Commissioner was
required to consider in the circumstances, prior to concluding that
the conduct in question had destroyed the
trust relationship.
[33]
The conclusions reached by the Commissioner in regards to the alleged
inconsistencies pertaining
to the application of discipline to the
extent that the applicant had shared his password are equally sound,
as she had taken into
account the position the applicant occupied at
the time, and the circumstances of comparators, which were clearly
distinguishable
from those of the applicant, whose misconduct on the
other hand was gross.
[34]
In regards to the procedural fairness findings made by the
Commissioner, I further have
no reason to interfere with them. Taking
into account the principles applicable to procedural fairness of a
dismissal, the applicant
was notified on time about the disciplinary
enquiry, which implies that he was given sufficient time to secure
someone to represent
him at that enquiry. It was clearly unreasonable
for him to insist on being represented by Scheepers, when he had only
informed
management of his choice on the morning of the disciplinary
enquiry. Scheepers obviously had to be excused from his workstation,
and clearly the Employer was entitled to be informed on time in order
to make contingency plans to accommodate the applicant. To
simply not
have warned the employer in advance and expected Scheepers to leave
his workstation in order to represent him at the
disciplinary enquiry
was unreasonable. On the whole, I am satisfied that the
Commissioner’s conclusions are unassailable.
[35]
In summary, the applicant has not shown good cause for the late
filing of the review application,
and it follows that both
applications ought to be dismissed. I have further had regard to the
requirements of law and fairness
insofar as the Employer sought a
costs order, and I am not persuaded that the facts and circumstances
of this case calls for a
costs order.
[36]
It further needs to be stated in conclusion that this matter was
heard in the Cape Town
Labour Court on 18 October 2018.
Judgement was reserved and the Court’s the file was then
couriered to the Labour
Court in Johannesburg. For reasons that are
not clear despite enquiries with the courier service providers, the
Court’s file
never found its way to Johannesburg. Attempts were
then made to reconstruct the file, and the Court is grateful to both
parties
and the Office of Registrar in Cape Town in ensuring that the
file was ultimately reconstructed. The Court further wishes to
express
its regret and the inconvenience caused as a result of the
delays in the delivery of this judgment.
Order:
[37]
In the premises, the following order is made;
1.
The applicant’s application for condonation for the late filing
of the review application is dismissed.
2.
The application to review and set aside the arbitration award issued
by the third respondent under case number
WECT875-16 is
dismissed.
3.
There is no order as to costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. C. A Kilowan, Instructed by H. K Law Consultants
For
the third respondent: Adv. M. Garces, Instructed by Gavin Weiner
Attorneys
[1]
See
Grootboom
v National Prosecuting Authority and Another
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC);
(2014) 35 ILJ 121 (CC), where it was held;
“
22.
I have read the judgment by my colleague Zondo J. I agree with him
that, based on
Brummer
and
Van Wyk
,
the standard for considering an application for condonation is the
interests of justice. However, the concept “interests
of
justice” is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes: the
nature of
the relief sought; the extent and cause of the delay; the effect of
the delay on the administration of justice and
other litigants; the
reasonableness of the explanation for the delay; the importance of
the issue to be raised in the intended
appeal; and the prospects of
success. It is crucial to reiterate that both
Brummer
and
Van
Wyk
emphasise that the ultimate determination of what is in
the interests of justice must reflect due regard to all the relevant
factors but it is not necessarily limited to those mentioned above.
The particular circumstances of each case will determine
which of
these factors are relevant.
23.
It is now trite that condonation cannot be had for the mere asking.
A party seeking condonation must make out a case
entitling it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation
for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable
enough to excuse the default.”
[2]
Sidumo
v Rustenburg Platinum Mines Ltd
(2007)
28 ILJ 2405 (CC) at [110], where it was held;
“…
.s
145 is now suffused by the constitutional standard of
reasonableness. That standard is the one explained in
Bato
Star
: Is the decision reached by the commissioner one that a
reasonable decision-maker could not reach? Applying it will give
effect
not only to the constitutional right to fair labour
practices, but also to the right to administrative action which is
lawful,
reasonable and procedurally fair.