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[2020] ZALCJHB 202
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Department of Education: Mpumalanga Province and Others v Mthala NO and Others (JR2036/17) [2020] ZALCJHB 202 (21 April 2020)
The
Labour Court of South Africa, Johannesburg
Judgment
Not
reportable
CASE
NO: JR 2036/17
In the matter between:
DEPT OF EDUCATION:
MPUMALANGA
PROVINCE
First
Applicant
MEC EDUCATION:
MPUMALANGA
PROVINCE Second
Applicant
HEAD DEPT OF
EDUCATION:
MPUMALANGA PROVINCE
Third
Applicant
and
MATHALA
N.O
First Respondent
GPSSBC
Second
Respondent
XABA,
SJ AND ANOTHER
Third
Respondent
Heard: 5 March
2020
Delivered: This
judgment was handed down electronically by circulation to the
parties' legal representatives by email, and to the
Court’s
library. The date and time for hand-down is deemed to be 09h45 on 21
April 2020.
(by
email)
JUDGMENT
VAN NIEKERK J
[1]
This is an application to review and set aside an arbitration award
dated 28 July
2017 and issued by the first respondent, to whom I
shall refer as ‘the arbitrator’. In his award, the
arbitrator found
that the third and further respondents, Xaba and
Sihlangu, (referred to jointly as ‘the employees’), had
been unfairly
dismissed by the first applicant. He ordered the
employees’ reinstatement with retrospective effect.
[2]
The employees were dismissed in August 2009, almost eleven years
prior to the date
of the present hearing. That delay is partially
explained by the fact that the dispute was the subject of an
arbitration award
issued in August 2011. That award was successfully
reviewed in August 2014, when the matter was remitted for rehearing
before a
different arbitrator. The award under review in the present
proceedings is that issued after the rehearing.
[3]
The employees were employed as clerks in the first respondent’s
HR division.
Sihlangu was employed as a principal personnel officer,
and in this capacity was Xaba’s supervisor. Xaba was employed
as
a senior administration officer. Xaba’s functions included
the making of adjustments to salaries, paying allowances and bonuses
and the like on the Persal system; Sihlangu was required to approve
the adjustments initiated by Xaba. (In Persal parlance, Xaba
was a
user or implementer, and Sihlangu a reviser.)
[4]
The present application has its roots in charges brought against the
employees in
August 2008, relating to transactions effected on the
Persal system during June 2008. Specifically, Xaba was charged with
committing
an act of dishonesty by implementing transactions that
resulted in an undue payment in favour of an educator who had
completed
an advanced certificate in education, a Ms. AS Mahlangu.
Sihlangu faced a similar charge on account of her having approved the
transactions. Specifically, the charge that formed the subject of the
arbitration hearing was the following:
…
you
are guilty of misconduct in terms of Annexure A of the PSBC
Resolution 1 of 2003 in that you committed an act of dishonesty
by
using Persal ID 90297 on the 27
th
June 2008, paying a qualification of Advanced Certificate twice to AS
Mahlangu with Persal number 81947356 amounting to R11 791.75;
first
on 23 June 2008, R27 209.57 and secondly on 27 June 2008, R11 791.75.
[5]
In the proceedings under review, the employees did not place
procedural fairness in
dispute. They also did not dispute that an
undue payment had been made to Mahlangu. Their primary defence to the
charge was that
they had made a mistake, and that there was no
dishonest intent on their part. The employees also challenged the
consistency with
which the rule had been applied by the first
respondent. Finally, the employees submitted that dismissal was too
harsh a penalty,
since their conduct amounted to no more than making
an error. The first respondent alleged that the employees’
conduct was
deliberate and dishonest, and that dismissal was an
appropriate penalty.
[6]
The evidence is summarised by the arbitrator, and it is not necessary
for present
purposes to repeat all that was said. Given that
the thrust of the review is an attack on the arbitrator’s
assessment
of the evidence, the following precis is sufficient for
present purposes. The first witness to testify was Mr. Elleck
Nxumalo,
a trainer in the Persal system. Persal is the system
used in government to maintain personnel records and make payment of
salaries and other emoluments to state employees. His testimony
broadly concerned the Persal system, and two ‘rules’
that
were conveyed during training. The first is to preserve the
confidentiality of passwords; the second is that nothing can be
implemented on the Persal system without a source document. By this
he meant a document that formed the basis of the transaction,
e.g. a
death certificate or a degree certificate, or some other document
which had consequences for the employee’s status
or
remuneration. The source document is furnished to the implementer in
a file sent from the registry, and acts the trigger for
the
transaction and its justification. The implementer captures the
information on the system, using the source document. The source
document is then given to the supervisor, who checks and approves the
transaction. No transaction can be initiated or approved
without a
source document. The personal file sent from the registry is endorsed
with the Persal number of the employee concerned;
that number is used
when the Persal system is accessed and the relevant transaction
processed. Nxumalo had no direct knowledge
of the transaction in
question. Under cross-examination, Nxumalo was pressed on the
possibility of mistakes being made and persons,
for example, being
paid when they were not entitled to be paid. His response was to deny
any knowledge of that possibility. As
I have indicated, Nxumalo had
no knowledge of the events that formed the subject of the dispute;
his knowledge was limited to that
which was taught during training on
the Persal system. The important points to emerge from his testimony
are that each user of
the Persal system has a unique user number
which may not be shared, that no transaction may be effected without
a source document,
and that all Persal users are trained on the
system.
[7]
The second witness, Swanepoel, testified that he had trained the
employees on the
operation of the Persal system. They were duly
qualified to perform their functions as implementer and approver
respectively. He
also testified that each operator had a unique user
number. Xaba, as the initiator, was required to act only in receipt
of a source
document; in this instance, the proof of qualification.
The document, dated 19 May 2008 recorded that Ms. AS Mahlangu had
obtained
the advanced certificate and that the diploma/degree would
be issued at a graduation to be held on 4 September 2008. Xaba was
required
to determine whether the receipt of the qualification
entitled Mahlangu to a once-off cash bonus or a notch increment, the
date
when the qualification was obtained. Mahlangu had a unique
Persal number, which served to identify her and distinguish her from
other employees who might have the same initials and surname. The
Persal record reflected that the effective date of the transaction
was 1 January 2004, rather than 19 May 2008, and that the entry had
been made by Xaba at 15:55:37 on 23 June 2008. A payment of
R26
209.50 was effected on the basis of the effective date of the
qualification (20040101). In other words, there was no source
document in the file sent from the registry that authorised Xaba to
make the entry that he did on the Persal system, nor was there
any
basis for Sihlangu to verify the source document and approve the
transaction. Swanepoel denied that the transaction could have
been
mistakenly made – a document was necessary to activate an
effective date. The Persal record further reflected that Sihlangu
verified the qualification and approved the transaction at 15:56 on
23 June 2008. Swanepoel testified that approval could not possibly
take place within 30 seconds. Swanepoel was also referred to the
Persal record reflecting that on 27 June 2008, Xaba logged into
the
system and effected a transaction first by deleting the date
‘20040101’ and entering a date ‘EFF.DATE 20080119’.
Again, this was done without any source document. Swanepoel
testified that Xaba removed the salary arrears and made an entry
that
would result in Persal paying AS Mahlangu a notch payment. On this
account, a second payment of R11 791.75 was effected. The
records put
to Swanepoel further reflected that in June 2008, Mahlangu was paid a
cash bonus for the qualification she obtained,
backdated to January
2004 and that on 27 June 2008, she received a salary notch.
[8]
During the course of Swanepoel’s evidence, the arbitrator
specifically put the
following to him:
ARBITRATOR: In
summarizing your evidence, there are two ways that they could not
have made a mistake – the source document
and the Persal
number?
SWANEPOEL: And the Persal
number, yes.
ARBITRAROR: Which is a
unique number?
MR SWANEPOEL: That is right.
ARBITRATOR: Having those
two, there is no way one can make a mistake?
Mr SWANEPOEL: Yeah.
ARBITRATOR:
Because you do not rely on the other thing. You double check,
having
the source document. This is a qualification of Mr Mahlangu, because
you may have three Mr Mahlangus in the department.
You must therefore
verify with the Persal number if it belongs with these Mr Mahlangu.
MR SWANEPOEL: Yes.
ARBITRATOR: That is how I
have heard you thus far.
MR SWANEPOEL: Yeah.
[9]
In cross-examination, Swanepoel conceded that employees entering
transactions on the
Persal system could make mistakes, but denied
that it was possible that a mistake could have been made in the
present instance.
He gave a number of reasons - first, because
the recipient AS Mahlangu was identified by a unique Persal number
and secondly,
because there was no source document on file reflecting
an effective date of 2004. He also stated that the difference
between
the correct date (2008-05-19) and the date inserted was not
indicative of an error. Had it been an error, he would have expected
the day, month or year to have been inverted or incorrectly entered,
not the entire date. Further, the fact that the implementer
(Xaba)
and supervisor (Sihlangu) had made the same mistake on a date.
Swanepoel did not dispute that information could be captured
erroneously, and that an employee could be erroneously paid, but not
on the scale and in the circumstances that presented in the
case. It
was put to Swanepoel that the payments of R26 209.50 made on 23 June
2008 and R11 791.75 made on 27 June 2008 were made
in respect of two
different persons, both named AS Mahlangu. In re-examination,
Swanepoel testified that it was not possible for
two persons named AS
Mahlangu to share the same Persal number. The record reflected that
the two payments that were the subject
of the charge against the
employees were paid to a single person with a unique Persal number.
Swanepoel confirmed that it was not
possible to approve a transaction
in under a minute, as the record in respect of the first payment
reflected and further, that
the second transaction of R11 791.75 was
made with effect from 1 January 2004, a date that preceded the
qualification obtained
by some four years.
[10]
The third witness for the applicant was Mr Calvin Mhlabane, the
deputy director of human resources.
He testified that a process had
been initiated to recover the amounts paid to Mahlangu, and that the
relationship of trust between
the department and the employees had
broken down.
[11]
After the applicant closed its case, the employees sought to
introduce two documents, referred
to in the record as annexures C and
D. Their admissibility was disputed, but only Annexure D was referred
to when the employees
testified. The annexure is an academic record
issued by the University of Pretoria in respect of an Anna Sally
Mahlangu, recording
that she completed a distance education ACE in
education management on 19 May 2008 and that the certificate was
awarded on 4 September
2008.
[12]
Xaba did not dispute that he had implemented the transactions on 23
and 27 June 2008, or that
there was no source document for 23 June
2008 that made any reference to the date of 1 January 2004. He
conceded that as per annexure
D, the effective date on which any
increase to Mahlangu’s remuneration could be made consequent on
her obtaining the certificate
was 19 May 2008. He also did not
dispute that to effect a transaction on the Persal system he had to
manually enter the effective
date, reference and type of payment, and
that he needed to check the allowance code. Xaba disputed that he had
made any payments
or that it was his function to make any payments –
the authority to pay was that of his supervisor, and his supervisor
(Sihlangu)
made payments. In other words, as he stated in
cross-examination, his duties were confined to the capturing and
updating of records
on the Persal system. He described the process
designed to effect payments on the Persal system. For example, a
student submits
a certificate on completion of a course, which is
passed to the registry. When a personal file could not be located, a
dummy file
was created. Xaba stated that his entry of the date
2008-01-09 was a typing error; the date of completion of the
qualification
was 2008-05-19. The payment made on 27 June 2008
was for an adjustment of salary; a notch increase. In regard to the
implementation
effected on 23 June 2008, Xaba stated that the amount
was paid in respect of a different AS Mahlangu, in response to a
query by
that person. The registry inserted the Persal number on the
file.
[13]
Sihlangu testified that her duties extended to approving work done by
others. She did not dispute
approving the payments in question.
Specifically, she stated:
What I am saying is that;
if the money was not supposed to go to Mahlangu, it was a mistake. It
did not happen intentionally.
Sihlangu conceded that
‘according to the documents’, the payment of R26 209.50
was not due to Mahlangu. When asked by
her representative why she had
nonetheless approved the payment, Sihlangu stated that she could not
recall, and blamed her workload.
Mahlangu also made reference to
other employees in the department who had not been dismissed despite
their having mistakenly approved
payments. After objection by the
applicant’s representative, the matter was left for argument.
When Sihlangu was pressed
during cross-examination on the time that
it took for her to approve the transaction after Xaba had implemented
it, she replied
that she did not know ‘how it came about on the
system that the compute allocate time the way it is allocated’.
The arbitration award
[14]
The arbitrator made reference to
Nedcor Bank Ltd v Frank &
others
(2002) 23
ILJ
1243 (LAC) and the court’s
reference there to the elements of dishonesty. as entailing ‘a
lack of integrity or straightforwardness
and in particular, a
willingness to steal, cheat lie or act fraudulently.’ The
arbitrator concluded that none of the
applicant’s witnesses had
acted in this manner. No evidence had been presented connecting the
employees to the money paid
to Mahlangu, in the form of either a
‘benefit or kickback’ to them. The assertion by Mhalabane
that the employees had
intended to siphon money from the state was
unsubstantiated.
[15]
In so far as the employees defence that they had made a mistake was
concerned, both Nxumalo and
Swanepoel had conceded that mistakes had
happened in the past, committed by Persal users. This inclined the
arbitrator to the view
that the employees’ conduct had amounted
to an error rather than dishonest behavior. In so far as Swanepoel
had testified
that the time within which the transaction was effected
by Xaba and approved by Sihlangu (some 30 seconds), the arbitrator
did
not regard this as evidence of dishonest conduct, at least not in
the absence of other corroborating evidence.
[16]
The arbitrator further found that the applicant had acted
inconsistently in taking action against
employees who had committed
errors. The arbitrator’s reasoning can be found in the
following paragraph:
[38] Undisputed evidence
from the Applicants was that this mistake was committed by other
officials in the past but no action was
taken against him. Sihlangu
version was that it happened in the where head office unduly paid her
thrice her salary; money which
was since recovered but no action was
taken against the perpetrator. This was further confirmed by both
Nxumalo and Fannie albeit
not mentioning names, as in the case of
Sihlangu. Evidence from Ronnie was that mistakes such as those were
punishable criminally
and otherwise. What I find problematic with his
version was that he failed ultimately to state or omitted to state
who of the officials
were arrested or disciplined, in particular with
both Fannie and Nxumalo, whom their testimony proceeded his,
mentioned that officials
committed to such offences. On his version
being led by the representative, Ronnie missed the opportunity to set
the record straight
on this issue, leaving the Respondent to be found
to have acted inconsistently in applying this rule (sic).
Grounds for review
[17]
In broad terms, the applicants submit first, that the arbitrator
misconceived the nature of the
enquiry, failed to make a credibility
finding in the face of a material dispute of fact, and misdirected
himself in relation to
the central dispute. Secondly, the applicants
submit that the arbitrator ignored relevant evidence, and made
reference to irrelevant
considerations. In the supplementary
affidavit, the applicants amplified these grounds by reference to the
record. The applicant
submits that all of these misdirections had the
consequence of an outcome that falls outside of the bands of
reasonableness.
Legal principles
[18]
In review applications brought under s 145 of the LRA, the prevailing
authorities support a two-stage
enquiry. It is not sufficient for an
applicant to establish that the commissioner or arbitrator committed
a material error or irregularity
in relation to the evidence that
served before him or her; it must also be established that
notwithstanding the conduct complained
of, the result or outcome of
the proceedings falls outside of a band of decisions to which a
reasonable decision-maker could come
on the basis of the evidence. In
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA) at 1084, the
Supreme Court of Appeal made the point in the following way:
[
25]
In summary, the position regarding the review of CCMA awards is this:
a review of a CCMA award
is permissible if the defect in the
proceedings falls within one of the grounds in section 145 (2) (a) of
the LRA. For a defect
in the conduct of the proceedings to amount to
a gross irregularity as contemplated by section 145(2) (a) (ii), the
arbitrator
must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it
is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material errors of fact,
as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient for an award to
be set aside,
but are only of any consequence if their effect is to render the
outcome and reasonable.
This test was elaborated
upon by Murphy AJA in
Head of the Dept. of Education v Mofokeng
[2015] 1 BLLR 50
(LAC), where the court emphasised that errors or
irregularities in relation to facts or issues may or may not produce
an unreasonable
outcome; what matters is the materiality of the error
or irregularity and its relation to the result. The court said the
following:
Whether the irregularity
or error is material must be assessed and determined with reference
to the distorting effect it may or
may not have had upon the
arbitrator’s conception of the enquiry, the delimitation of the
issues to be determined and the
ultimate outcome. If but for an error
or irregularity a different outcome would have resulted, it will
ex
hypothesi
be material to the determination of the dispute. A
material error of this order would point to at least a prima facie
unreasonable
result. The reviewing judge must then have regard to the
general nature of the decision in issue; the range of relevant
factors
informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA.
[19]
Put another way, if the arbitrator ignores material facts, the award
will be reviewable if the
distorting effect of this misdirection
renders the outcome or result of the proceedings unreasonable.
Analysis
[20]
I deal first with the arbitrator’s finding of inconsistency. As
I understand it, the arbitrator
accepted evidence from Xaba and
Sihlangu that other employees had ‘made mistakes’
implementing transactions on the
Persal system, and that no action
had been taken against them. What was put to Nxumalo in cross-
examination was that the employees
capturing data had made mistakes;
Sihlangu receiving her salary three times over was cited as a
specific example. Nxumalo’s
response was to say that anyone can
make a mistake, but if an implementer made a mistake, it was for the
reviser to disapprove
the transaction, and for the mistake to be
corrected. Swanepoel similarly conceded that employees could make
mistakes. But that
concession was qualified by Swanepoel’s view
that in the present instance, the discrepancy between a legitimate
entry to
reflect Mahlangu’s qualification and any increase in
remuneration that may flow from it, and what was manually entered by
Xaba and approved by Sihlangu, was just too great to ascribe to a
mistake. It was never put to him in cross-examination that particular
employees had in the past made mistakes and escaped disciplinary
action. In Mhlabane’s cross-examination, nothing was put
to him
regarding any inconsistent conduct on the part of the applicant.
Indeed, it was the last witness, Sihalangu, who belatedly
attempted
to make out a case of inconsistency
[21]
The arbitrator’s finding that the applicant had acted
inconsistently in applying a rule
of conduct (in her mind, a rule
against committing mistakes) by failing to discipline other employees
who committed mistakes is
not supported by the evidence, for at least
two reasons. First, it was common cause that the Xaba had made an
error in implementing
the two transactions that were the subject of
the charge, and that Sihlangu had similarly made an error in
approving the transactions.
That was not in dispute, nor was the fact
that neither employee was disciplined for making a mistake. The issue
before the arbitrator
was whether the employees had acted with
dishonest intent. Whether other employees were disciplined (or
not) for committing
bona fide
errors was therefore irrelevant
to the enquiry before the arbitrator. In any event, neither employee
made out a proper case for
inconsistency. The propositions put in
cross-examination lacked any specificity as to the instances of
inconsistent conduct relied
on, as did the evidence-in-chief given by
the employees. It was not for the applicant’s witnesses to
‘mention names’
or ‘set the record straight’
as the arbitrator implies in paragraph 38 of the award – any
case for inconsistency
had to be made by the employees. In other
words, it was not for Nxumalo or Swanepoel to refute a case of
inconsistency that was
never put. In coming to the conclusion
he did in paragraph 38 of the award, the arbitrator misconceived the
nature of the
enquiry and failed to have regard to the evidence
before him. That part of the award thus stands to be reviewed and set
aside.
[22]
Paragraphs 39 to 41 of the award concern the appropriateness of
dismissal as a sanction. In particular,
the arbitrator finds that the
relationship of trust and confidence had not been compromised, that
the employees had long service
and clean disciplinary records, and
that the monies that they had been accused of appropriating had been
recovered. Again, given
the arbitrator’s prior finding that the
employees had not committed the misconduct of which they were accused
(i.e. that
they had made mistakes and had not acted dishonestly),
none of this is relevant. There was no alternative charge of acting
negligently,
or ‘making a mistake’ - the employer’s
only charge was one of dishonest conduct. All of the considerations
in
these paragraphs address the appropriateness of dismissal as a
sanction for proven misconduct, as opposed to some lesser penalty.
To
consider the factors relevant to a fair sanction after a finding that
the employees were not guilty of the misconduct that they
were
alleged to have committed is irrational, and manifests a failure to
appreciate the nature of the enquiry. For this reason,
that part of
the award stands to be reviewed and set aside.
[23]
That leaves the arbitrator’s finding that the applicant had
failed to prove, on a balance
of probabilities, that the employees
had committed ‘an act of dishonesty’ by respectively
implementing and approving
the payments to Mahlangu. It will be
recalled from the discussion on the content of the award that the
arbitrator’s logic
was, in effect, that neither Swanepoel nor
Nxumalo had said that the employees acted dishonestly, that they were
personally not
aware of any dishonesty, and that the applicant’s
witnesses had conceded that mistakes could be made when implementing
and
approving transactions on the Persal system. It should be
recalled that Nxumalo’s evidence was limited to the processes
involved
in effecting transactions on the Persal system; he
specifically disavowed any knowledge of the transactions in issue.
What the
arbitrator does is to ignore Swanepoel’s evidence,
virtually in its entirety. While it is correct that Swanepoel
conceded
that implementers and approvers could make mistakes, he
specifically stated that in his view, the transactions that were the
subject
of the arbitration proceedings could not have been mistakes.
He gave four reasons. First, there were no source documents that
served
as a basis of the initiation of the transactions. Secondly,
the nature of the entries made did not indicate a mistake –
mistakes
usually occurred when implementers entered either the wrong
day, month or year. It was also ‘very rare’ that the
implementer
and approver both make the same mistake in relation to a
date or other information. In the present case, the day, month and
date
entered (20040101) bore no relation to any qualification
obtained by Mahlangu, and yet was approved by both employees.
Thirdly,
in the ordinary course, the approval of a transaction would
take at least five minutes – the approver would have to be
given
the file, scrutinise the source documents and the transaction,
and approve them. In his view, this would take at least five minutes.
Finally, the Persal numbers on the documents shown to him
established that all of the transactions benefitted the same AS
Mahlangu, whose Persal number was unique. The second payment could
therefore not have been made to a ‘different’ AS
Mahlangu. None of this evidence was seriously challenged in
cross-examination. Yet the arbitrator simply fails to deal with this
evidence, nor does he furnish any cogent reason for rejecting it.
Indeed, in paragraph 36 of the award, the arbitrator appears
to
accept the version proffered by Nxumalo and Swanepoel that it would
be impossible to approve a transaction within 30 seconds
of its
implementation, but dismisses this undisputed fact on the basis that
‘
this argument also did not assist in establishing
dishonesty unless corroborated
…’. First, the
evidence adduced was as to a fact (i.e. that it was impossible
properly to scruti
nise a transaction, verify the underlying documents and approve it,
all within a period of 30 seconds), and not an ‘argument’.
Secondly, the employees did not dispute this evidence, and neither
had an explanation for it, but for Sihlangu who appeared vaguely
to
have suggested that the computer time recording was incorrect.
[24]
In short: the arbitrator came to a conclusion without properly
considering and weighing the evidence
before him. The evidence by
Xaba and Sihlangu was accepted uncritically, in circumstances where
serious questions had been raised
about whether on the facts, there
could have been a
bona fide
mistake made by either of them.
The failure properly to assess the evidence regarding the events of
23 and 27 June 2008 and to
determine the probabilities on that basis
is a reviewable irregularity.
[25]
That finding notwithstanding, the second stage of the review enquiry
obliges the court to determine
whether the result or outcome of the
proceedings under review is reasonable, despite the irregularities
committed by the arbitrator.
In other words, this court must broadly
evaluate the evidence and consider whether the arbitrator’s
misdirections notwithstanding,
the result is capable of justification
for other reasons.
[26]
Dishonest intent is a matter to be determined by the evidence. In
Nedcor Bank Ltd v Frank & others
(2002) 23
ILJ
1243 (LAC), the court referred to the elements of dishonesty as
entailing ‘
a lack of integrity or
straightforwardness and in particular, a willingness to steal, cheat,
lie or act fraudulently
.’
While this judgment is relied on by the arbitrator to find, it would
seem, that there was no evidence of any dishonest
intent on the part
of either of the employees, it should be recalled that the facts of
that case concerned conduct by the employees
of a bank and an ATM
situated at an airport. The ATM had run out of cash over a
particularly busy weekend, and could not be loaded
until the Monday.
The employee concerned and his supervisor decided not to leave the
ATM in a condition that would alert the airport
management to the
fact that the machine had run out of cash, and to disengage the
machine in such a way that it failed to operate,
but did not indicate
that it had run of cash. The purpose of this act was to protect the
bank from the wrath of the airport’s
management. The employee
was dismissed for dishonesty, in that he had allowed his supervisor
to disengage the card reader. The
employee was reinstated after an
arbitrator hearing, a decision that was upheld by this court and the
LAC. The LAC stated that
to sustain the fairness of the dismissal,
some intention beyond an act that is merely reckless, disobedient or
foolish was required.
The court found that the explanation proffered
by the employee (i.e. that he wished to protect his employer from the
wrath of the
airport’s management) was entirely plausible, and
that on the evidence, no other reason (let alone one related to
dishonesty)
suggested itself.
[27]
In the present instance, the employees admit that two payments in
favour of AS Mahlangu were
made on 23 and 27 June 2008 in the amounts
of R26 209.50 and R11 791.75 respectively. They also admit that they
were respectively
the implementer and approver of the transaction.
The defences that the employees raised, in Xaba’s case that
there was a
source document and that the payments had been made in
respect of two individuals with the same surname and initials, and in
Sihlangu’s
case that she had been overworked, simply hold no
water. In Xaba’s case, the source document on which he sought
to rely makes
no reference to an effective date of 1 January 2004.
Further, it was not disputed that the implementer receives a file
from the
registry with a unique Persal number – even if two
employees share a common name, the transaction is effected on the
basis
of the Persal number. Xaba’s assertion that the source
document in respect of the second transaction was ‘on the
system’
is similarly obviously contrived. This defence was
never put to any of the applicant’s witnesses, and fails to
account for
why and how a ‘query for underpayment’ came
to be on the system and how Xaba came to deal with it. Sihlangu was
intend
to act as a check and balance in the system – her
failure to perform her functions and in particular, the approval of
the
transactions effected by Xaba, without scrutiny, points to
collaboration. In short - the evidence ineluctably points to an
intent
of the part of both employees to act, in the words of
Nedcor
Bank Ltd, ‘
without integrity or straightforwardness’,
i.e. dishonestly. Given the serious nature of the misconduct, the
penalty of dismissal
is appropriate. In summary, there are no other
reasons, having regard to the record, to justify the arbitrator’s
conclusion.
Substitution
[28]
The arbitrator’s award thus stands to be reviewed and set
aside. The court has a discretion
to remit the matter for rehearing,
or to substitute the award for a decision to which a reasonable
decision-maker could have come.
As I have indicated, this matter has
its roots in events that took place almost 12 years ago. The dispute
has previously been the
subject of a review and rehearing. Any
further delay is in the interests of neither party, and would
undermine the statutory purpose
of expeditious dispute resolution. In
any event, the record is complete and the court is in as good a
position as the bargaining
council to make a determination. For these
reasons, I intend to order that the arbitrator’s award be
substituted with an
order to the effect that the employees’
dismissal is substantively and procedurally fair.
Application to strike
out
[29]
Finally, there is the matter of the application to strike out. In
response to the notice of motion
and founding affidavit, the
employees filed a supplementary affidavit. They did so prematurely,
since the record and the applicant’s
Rule 7A (8) notice had not
been filed. The applicant elected not to take issue with this
state of affairs, ‘from a
practical perspective’. After
the Rule 7A (8) notice and supplementary affidavit had been filed,
the employees then filed
a second answering affidavit, expanding on
the content of the first. The applicants then objected on the basis
that there is no
provision in the Rules for the filing of a further
affidavit. There is no merit in the application to strike out,
firstly because
the applicant has clearly acquiesced in the premature
filing of the first answering affidavit, and having done so, can
hardly deny
the employees the opportunity to respond to the matters
that were raised in the supplementary affidavit. Secondly, and as I
pointed
out during the hearing, the value and usefulness of answering
and replying affidavits in review proceedings are minimal. Given the
test applicable in review applications, what is relevant are the
grounds for review and the record of the proceedings under review,
all of which are contained in the founding papers. From that point
on, a deponent’s subjective views and opinions on the
reasonableness of the outcome of the proceedings are rarely, if ever,
of any assistance to the court given that there are no factual
disputes to resolve in these circumstances, and that it is the
primary function of the court to determine any relationship of
reasonableness between the record on the one hand, and the outcome or
result on the other.
Costs
[30]
In relation to costs, the court has a broad discretion in terms of s
162 of the LRA to make orders
for costs according to the requirements
of the law and fairness. The court ordinarily does not make costs
orders in circumstances
where employees act in good faith to protect
their interests, and where their opposition to any proceedings is not
frivolous or
vexatious. There is no reason in the present instance to
depart from that convention.
I make the following
order:
1.
The arbitration award issued by the first
respondent on 28 July 2017 under case number GPBC 1640/2009 is
reviewed and set aside.
2.
The award is substituted by the following:
‘
The
applicants’ dismissal was substantively and procedurally fair,
and the referral is dismissed.’
3.
There is no order as to costs.
André van Niekerk
Judge
APPEARANCES
For the applicants: Adv.
F Venter, instructed by Adendorff Theron Inc.
(jacques@adendorffs.com)
For the third respondent:
Adv. MZ Seima, instructed by Morare Thobejane Inc.
(koketso@morarethobejane.co.za)