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[2020] ZALCJHB 222
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Long v South African Local Government Bargaining Council and Others (JR 508/18) [2020] ZALCJHB 222 (15 May 2020)
In
The Labour Court of South Africa, JOHANNESBURG
Not Reportable
case
no:
JR
508/18
In
the matter between:
MARGARET
MMONI LONG
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
VAN
WYK S N.
O
Second Respondent
SOL
PLAATJE MUNICIPALITY
Third Respondent
Heard
:
5 May 2020
Delivered
:
15 May 2020 (This judgment was handed down electronically by
emailing a copy to the parties. The 15
th
May
2020 is deemed to be the date of delivery of this judgment).
Summary:
Due to Covid19 lockdown period this application
was decided without oral hearing and the parties agreed to this
arrangement. Review
application – award falls within the bounds
of reasonableness. Held: (1) The application for review is dismissed.
(2) No
order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This application for review is opposed. Ms
Margaret Mmoni Long (Ms Long) was dismissed on allegations of fraud,
gross negligence
and taking unauthorised steps. Aggrieved by her
dismissal she approached the South African Local Government
Bargaining Council
(the Bargaining Council) with an allegation of
unfair dismissal. The second respondent concluded that her dismissal
is fair. She
was aggrieved thereby and approached this Court with a
review application. She contends that the award is reviewable in law.
Background
facts
[2]
Long was a senior employee of the third
respondent, she was employed with effect from March 1997. At the time
of her dismissal she
held a position of Senior Human Resources
Officer (SHRO), which position she held since July 2015. Effectively,
Ms Long faced two
allegations of misconduct, namely fraud and gross
negligence. The second respondent cleared her of the allegations of
fraud. However,
she found that the evidence before her demonstrated
gross negligence on the part of Ms Long. Accordingly, for the
purposes of this
judgment only facts relevant to gross negligence
would be recounted.
[3]
On 16 August 2016, Ms Long received a
telephone call from one Kilelo, a sectional head, who was responsible
for payroll. In the
said call Ms Long was requested to change the
banking details of one L Koopman. In turn she instructed one
Nongalaza to complete
the leave application form. The number of leave
days kept changing. Ultimately Nongalaza provided Ms Long with a
completed leave
form.
[4]
Armed with the completed leave form, Ms
Long called Mr Seleke asking him to bring L Koopman to her office for
the purposes of signing
the leave encashment form that was already
completed. At the point of this call, Ms Long was informed by Mr
Seleke that L Koopman
was not selling his leave days. As a result,
the process that would have seen the encashment of leave days was
foiled.
[5]
Few days later on 19 August 2016, Ms Long
and Seleke discussed the incident. There are two different versions
from Seleke and Ms
Long as to what was discussed. However nothing
much turns on this. Subsequently, Ms Long was suspended. At a
subsequent disciplinary
hearing she was found guilty and dismissed.
Evaluation
[6]
In
terms of the Labour Relations Act
[1]
(LRA),
particularly section 188 thereof, a dismissal is fair if the reason
thereof is misconduct. In this matter, the applicant
takes issue with
the charges and how they were dealt with at arbitration. For the
purposes of this judgment it is unnecessary to
entertain any of those
issues. If an employee is guilty of a misconduct, that is enough to
satisfy the requirements of section
188 of the LRA. It is unnecessary
to consider whether an employee was guilty of all the charges if he
or she faced a catalogue
of charges. One of the misconduct that led
to the dismissal of Ms Long was negligence. Therefore upon being
challenged to justify
the fairness of the dismissal, the third
respondent was required to show two things, namely (a) was Ms Long
guilty of negligence
and if so (b) was dismissal an appropriate
sanction for the said misconduct. Negligence and poor work
performance are often confused.
[7]
In
ZA
one (Pty) Ltd t/a Naartjie Clothing v Goldman N.O
[2]
,
this court per Snyman AJ aptly differentiated the two by saying that
if an employee tried but could not do the work perfectly,
such
constitutes poor work performance. However if an employee could but
failed to do so, such is a misconduct of negligence. A
mistake does
not necessarily amount to negligence. The test to determine
negligence has been formulated in
Kruger
v Coetzee
[3]
[8]
In
casu
,
the second respondent recorded the following in her award:
’
53.
Witnesses testified during the arbitration regarding the process of
changing banking details and
leave encashment and without exception
all of them testified that forms must be completed and signed by the
employee, whereafter
a manager’s signature…The applicant
(Ms Long) herself testified that when she started as HR Officer the
forms were
already being used. The procedure therefore clearly
exists…The rule is also not seen to be unreasonable as it is
in line
with accepted HR practices as it acts as a control / security
measure to ensure(s) (sic) that vital employee information is not
changed without proper authorisation from the employee and
management…
57.
I therefore find that the applicant (Ms Long) was indeed guilty of
negligence and the negligence
was so gross as her actions effectively
paralyzed all the control / security measures put in place to ensure
all changes to the
employee profiles are justified.’
[9]
This finding is not only one that a
reasonable decision maker would reach but it is pure and unsullied.
This Court must say, the
award is well written, reasoned and actually
correct, if correctness was the standard, it would remain unshaken.
The second respondent
must be commended for a sterling job. Another
unshakable finding was the following:
’
69.
In judging the fairness of the dismissal, I must agree that the
dismissal was an appropriate sanction
as the conduct of the applicant
amounted to gross negligence. I also find that the nature of the
transgression was of such a serious
nature that it severed the trust
relationship and no basis exist for me to interfere with the sanction
imposed.’
[10]
Before
she made the above findings she said the following, which resonates
well with what was said in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
:
’
67.
The conduct of the applicant was in my opinion grossly negligent.
Even though there was no monetary
loss resulting from her actions, a
repeat of the incident or allowing such conduct to go unpunished, can
have detrimental effect
on the business of the respondent. The fact
that she was a supervisor was an aggravating factor to me as she was
identified as
a person entrusted with more responsibility.’
[11]
Regard being had to the review grounds, it
cannot be correct to submit that the findings that Ms Long is guilty
of gross negligence
is unreasonable. A misconduct is gross if it is
one that is serious. A commissioner does not require evidence to be
told that a
misconduct is serious. A value judgment based on the
circumstances of each case is enough to draw that conclusion.
Clearly, had
the process not been foiled by the intervention of Mr
Seleke, the Municipality could have lost money. In
Kruger
supra
, the following was said:
‘
For
the purposes of liability
culpa
arises if –
(a)
a
diligens
paterfamilias
in the position of the
defendant-
(i)
would
foresee
the reasonable possibility
of his
conduct injuring another in his person or property and causing him
patrimonial loss; and
(ii)
would
take
reasonable steps to guard against such
occurrence; and
(iii)
the defendant
failed
to take such steps
.’
[12]
With full knowledge of the applicable
procedure and its purpose, Ms Long could not have instructed
Nongalaza. Having done that nonetheless,
Ms Long was
culpa
.
Accordingly all the grounds punted for must fail.
[13]
In the premises the following order is
made:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
No
appearance.
[1]
No
66 of 1995, as amended
[2]
(2013)
34 ILJ 2347 (LC).
[3]
1966
(2) SA 428 (AD).
[4]
(2007)
28 ILJ 2405 (CC).