THE LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Not Reportable/Of interest to other judges
Case no: C 497/2019
In the matter between:
ZWELETHU NTAMANE First Applicant
And
COMMISSION FOR CONCILAITION,
MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER, HILARY
MOFSOWITZ Second Respondent
PASSENGER RAIL AGENCY OF
SOUTH AFRICA T/A METRORAIL
Third Respondent
Heard: 10 October 2024
Delivered: 17 June 2025
Summary: (Review –Misconduct dismissal - Dishonest misconduct relating to shift
swaps – Arbitrator’s findings plausible on the evidence presented - application
dismissed - Application to condone late filing of record – sufficient to reinstate
review application in the absence of a formal application to reinstate it )
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JUDGMENT
LAGRANGE, J
Introduction
[1] This is an opposed review application of an arbitration award in which the
second respondent (‘the arbitrator’) found that the dismissal of the applicant, Mr Z
Ntame (‘ Ntame ’) by his employer (‘Prasa’) on 29 October 2018 was substantively
and procedurally unfair.
[2] Although he did not formally make an application to reinstate the review
application, Ntame has applied for condonation for the late filing of the transcript,
which should have been filed around 3 March 2020, but appeared to have been filed only around 19 August 2020, over five months’ late. The application was not
opposed. The main reason for the delay was the applicant needed to raise funds for
the transcript, which to over 700 pages. He gave a reasonable explanation of how he eventually managed to raise the funds.
[3] In Samuels v Old Mutual Bank
1 the Labour Appeal Court held that:
“[17] In essence, an application for the retrieval of a file from the archives is a
form of an application for condonation for failure to comply with the court rules, time frames and directives. …”
In the circumstances, if the late filing of the record is condoned, it follows that the review application should be reinstated.
[4] In the absence of opposition, and any demonstrable prejudice complained of
by Prasa, condonation should be granted for the late filing of the record and
1 (2017) 38 ILJ 1790 (LAC)
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accordingly, to the extent that the application was deemed withdrawn as a result of
the record not being filed withing 60 days of the registrar issuing a notice under Rule 7A (5), the review application should be reinstated. In reaching this conclusion I did
not find it necessary to consider his prospects of success in the review application.
Background
[5] Ntame was a security supervisor who had been employed on 1 September
2009 by Prasa. He w as dismissed after he was found guilty of three charges of gross
dishonesty and another charge of gross misconduct. All the misconduct related to
related to working unauthorised working hours and the remuneration he claimed on
those occasions.
[6] The first three charges related to three separate weeks in 2017 when he
allegedly failed to work according to the shift roster without obtaining authorisation to
change which shifts he was working. The last charge that he had recorded that he
had worked on 24 and 25 March 2018, whereas he was not rostered to work and did not do so. The charges read:
“1. Gross Dishonesty: it Is alleged that you failed to work according to your
shift roster during the month of May 2017 whereas you were to work dayshift from the 12th May 2017 till 19th May 2017 and worked Night shift during this
period and not in accordance to your shift roster . Your supervisor and
manager were also not aware of any changes on your roster and did not
authoriz e the change.
2. Gross Dishonesty: it is alleged that you failed to work according to your
shift roster during the month of A ugust 2017 whereas you were to work Night
shift from the 4th August 2017 till the Il August 2017 and worked Day shift during this period and not in accordance to your shift roster. Your supervisor and manager was also not aware of any changes on your roster and did not authorise the change
3. Gross Dishonesty: It is alleged that you failed to work according to your
shift roster during the month of September 2017 whereas you were to work Night shift from the '1 st September 2017 till the September 2017 and worked
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day shift during this period and not in accordance to your shift roster. Your
supervisor and manager were also not aware of any changes on your roster
and did not authorise any changes. You further allegedly completed your sign
on sheet for September 2017 and your 700 according to your shift roster and not according to the day's you worked 4. Gros s Misconduct: It is alleged that you allegedly booked time on 12hrs
normal time on the 24th March 2018 and 12hrs Sunday time on the 25th
March 2018 where as you were rostered to work, and you allegedly did not
work on the weekend. ”
(sic)
[7] The arbitrator upheld Ntame ’s guilt on the first, third and fourth charges but
acquitted him of the second charge.
The award
Procedural fairness
[8] Ntame had raised several allegations that his internal disciplinary enquiry was
procedurally unfair. These related to: the extended time period for the internal investigation of the charges , without obtaining his input ; the fact that a fourth charge
was added and investigated before the Prasa had concluded disciplinary steps relating to the first three charges. The applicant argued that the extension for the disciplinary process was granted without his input and that the fourth charge was added after the extension was granted, which he claimed was against the respondent's policy.
[9] Clause 4.4 of Prasa’s disciplinary code provides that a disciplinary hearing
should be conducted and finalised within 30 days after an incident of misconduct is brought to management’s attention, but a regional manager may extend this period if there are substantive and legitimate grounds for the delay. If extension is not granted the case was supposed to be withdrawn. In this case, an extension was requested
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and granted, but Ntame complains this should have been discussed with him. The
code does not provide for any representations to be made by the affected employee.
[10] The arbitrator found that the investigator was entitled to request an extension
for the disciplinary process to ensure a thorough investigation of all allegations, including those that emerged later. She also found the extension of the period for
investigation did not mean that it was confined to the first three charges and it was
not necessary for the purposes of extending the period of investigation to specify
every allegation before an investigation was conducted. As regards the fourth charge she found that Ntame had a fair opportunity to prepare his defence to that charge
before the disciplinary enquiry concluded. In any event he was not hampered in the
presentation of his case or calling of witnesses.
[11] Regarding the overall delay between the incidents and disciplinary enquiry the
arbitrator acknowledged the process had been lengthy but found that the delay was
justified due to the complexity of the case and unforeseen circumstances, such as the investigator being indisposed after an accident. As Ntame continued to work and
earn a salary during this period, and there was no evidence of prejudice against him due to the delay.
[12] Ntame had also raised a claim that the chairperson of the disciplinary hearing,
Mr T Nongqonqgo (‘Nongqonqgo’) was biased due to his previous role as employee relations manager. Ntame believed that he had prior knowledge of the case as a
former employee relations manager. I t appears that contrary to the procedure the
presiding officer had been appointed at the last minute when the original one could not preside. The arbitrator found no evidence to support the claim of bias.
Nongqonqgo had concluded his term as employee relations manager long before the
investigation began and was only appointed as the presiding officer on the first day of the enquiry. The applicant, being a shop steward and a supervisor, was deemed sufficiently knowledgeable by the arbitrator to have raised an objection at the time if
he had concerns about bias .
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[13] Further, Ntame had argued that having the same person serve as both
investigator and initiator was against the respondent's policy. This contention was
also dismissed by the arbitrator. The investigator's role was to gather facts, and the
applicant had the opportunity to challenge the findings during the disciplinary
process. The arbitrator found no evidence to support the claim that witnesses were
prevented from testifying at the disciplinary enquiry and noted that t he applicant
could have subpoenaed important witnesses to testify at arbitration but failed to do
so.
Substantive fairness
[14] The arbitrator found that the rule requiring shift swaps to be authorised from a
supervisor or manager was a reasonable one for operational efficiency and that's the applicant held a supervisory position and understood the implications of the rule. Moreover, as a supervisor he was responsible for implementing the employer’s rules and monitoring compliance.
[15] On the first charge, Ntame claimed he swapped shifts to write examinations
and had permission to do so. He alleged he had obtained permission by notifying Ms B McPherson of the shift swap , which he had agreed with his colleague, Mr J
Dlabane (‘Dlabane’). Evidence of three of Prasa ’s witnesses was to the effect that he
had not obtained authorisation for the swap and McPherson was not in a position to approve swaps. The examination timetable did not support the applicant's claim as
he did not write exams on the specified dates. The email to McPherson was not valid as she was not in a management position to authori se shift swaps. The arbitrator
concluded he had not obtained authorisation for the swap.
[16] In relation to the second charge concerning unauthorised swapping of night
and day shifts in August 2017, Applicant's Argument , the arbitrator rejected Ntame ’s
defence that he was exempt from working night shift while he was obtaining treatment from the employee wellness programme, but in view of a medical certificate recommending he should not work night shift, she gave him ‘the benefit of
the doubt’ and did not find him guilty on this charge. She reached this finding despite
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accepting that the area manager had specifically instructed him to abide by the
roster until a counter instruction was received.
[17] On the third charge pertaining to Ntame working on the day shift instead of
the night shift without authorisation, in September 2017, the arbitrator concluded that his version that there had been a misunderstanding about the shift swap and the remuneration claimed was not convincing, and he only attempted to change his time
card when he thought he might be exposed. The applicant committed misconduct by
claiming pay for time not worked.
[18] In respect of the last charge, the arbitrator noted Ntame claimed he made an
error in claiming pay for 24 March 2018 and asserted he was at work on 25 March 2018. He provided a death certificate to substantiate his absence on 24 March 2018. His absence to attend a funeral in East London that day was accepted. However, employer witnesses testified he was not at work the following day either. Given that
the funeral was in East London, t he arbitrator reasoned it was unlikely he would have
returned to work by then. By claiming payment for the time he did not work, the
arbitrator found Ntame had been dishonest. It is common cause someone else was
working in his place.
[19] An aggravating factor was that, more than once, Ntame had put in a claim for
wages which was not a true reflection of the time he worked. If it had not been
detected he would have gained from his dishonesty. [20] The arbitrator found that , regardless of his long service of approximately nine
years and his unfortunate personal circumstances , he had crossed the lines of
acceptable conduct and must have known that what he was doing was wrong. Honesty lay at the heart of the employment relationship and his conduct was destructive of the trust required. moreover, as a supervisor he was expected to set an example to other employees particularly in the protection/ security sector in which
she worked.
[21] The arbitrator decided that his dismissal was substantively fair .
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Grounds of review
[22] Ntame launched the review application himself. In his founding affidavit, the
grounds of review he raises concern her alleged misconstruing of evidence relating
to the failure to complete the disciplinary enquiry within the time limit set down in
Prasa’s disciplinary code and procedure without obtaining an extension of time in
relation to charges 1, 2 and 4.
[23] In his supplementary affidavit he raised additional grounds which relate to the
arbitrator’s findings on the merits. To some degree he has advanced these
arguments in the style of grounds of appeal , whereas this is a review
2. However,
making allowance for the fact that Ntame is a layperson, I have treated the grounds
he raises as support for an argument that no reasonable arbitrator could have arrived at the findings he challenges
3.
[24] Firstly, he contends that the arbitrator misunderstood his claim that Prasa had
acted inconsistently in not subjecting the officer he swapped his shifts with between
12 May and 19 May 2017. She had found that there was no inconsistent treatment in not dismissing his colleague, Mr J Dlabane (‘Dlabane’) because the latter had not
committed all the offences Ntame had and there was no evidence he had acted
dishonestly or had claimed for work not done. Ntame argues that the arbitrator failed
2 Booi v Amathole District Municipality and Others [2022] 1 BLLR 1 (CC); (2022) 43 ILJ 91 (CC) at
paragraph 44
3 This is the test laid down by the Constitutional Court in Sidumo & Another v Rustenburg Platinum
Mines Ltd & Others (2007) 28 ILJ 2405 (CC) :
“[110] To summarize, Carephone held that s 145 of the LRA was suffused by the then constitutional
standard that the outcome of an administrative decision should be justifiable in relation to the reasons
given for it. The better approach is that 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.”
(emphasis added)
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to apply the principle of inconsistent treatment on a charge- by-charge basis. She
should have considered that Prasa acted inconsistently by not charging his
colleague in relation to the swap dealt with under charge 1. Presumably, he would
argue that if she had, she would have concluded that it was inconsistent not to charge his colleague in relation to the first charge.
[25] Likewise, in relation to the third charge Ntame claims the commissioner
ignored the fact that his time- card had to be approved by his supervisor and before
signing it, he was required to verify the information. By failing to do so, his supervisor
made himself as guilty as Ntame , yet the employer took no disciplinary action
against him. In Ntame ’s view the arbitrator acted irregularly by ignoring this
inconsistency.
[26] The third charge concerned a somewhat unusual shift variation. Ntame had
been rostered to work night shift. Instead, he worked on the day shift and did so
without permission according to management. In any event , when it was learnt that
Ntame was working the day shift, a compromise arrangement was made with him,
under which he would work from 13h00 to 21h00. However, his time -card reflected
that he worked a full night shift and he would have been paid accordingly had he not asked his supervisor, Mr Blom, to amend it. The arbitrator found that he only asked Blom to sign an amended time- card when he feared the discrepancy would be
discovered and that he completed his time sheet for the entire month according to
the hours rostered, without correcting it to account for the special arrangement. Ntame argues that the arbitrator failed to appreciate that it was normal practice for
the supervisor to sign off on an amended time- card and because it was corrected, he
did not obtain any undue benefit.
[27] By the time the review application was heard, Ntame was legally represented
and the heads of argument traversed issues somewhat broader than the issues canvassed in his founding and supplementary affidavits, but the court is confined to dealing with the issues raised in those documents
4.
4 Commercial Workers Union of SA v Tao Ying Metal Industries & others 2009 (2) SA 204 (CC);
(2008) 29 ILJ 2461 (CC) at paragraph 67. See also Comtech (Pty) Ltd v Molony NO and Others
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Evaluation
The claim of inconsistency
[28] Ntame raises this issue in two respects. Firstly, he refers to Dlabane with
whom he swapped shifts in May 2017. However, it is clear the arbitrator did find
important distinguishing factors between him and his colleague. In so far as Dlabane
was also guilty of unauthorised shift swapping this only concerned a single occurrence his case, whereas Ntame was guilty of two other forms of related
misconduct. Further , it was not suggested he had acted with any dishonest intention.
Ntame might be correct that Dlabane should also have been charged, but he did not
benefit financially from the change in hours, so it cannot be said the arbitrator made an implausible distinction between them in finding that Prasa ’s failure to charge
Dlabane was not justified.
[29] Secondly, Ntame argues that his supervisor was complicit in the alleged
misconduct under charge 3 and Prasa should have taken disciplinary action against
him for negligence and the arbitrator failed to consider this in in concluding Prasa
had not acted inconsistently. The supervisor in question, Mr J Blaauw (‘Blaauw’)
initially signed Ntame ’s time card believing it to be correct, but when he saw the
occurrence book (OB) entries which accurately reflect if someone was on duty, he
realised that the OB entries showed he was not working on a night shift in
accordance with the time- card and he asked for an investigation to be done. The
point is that Blaauw did pick up the discrepanc y and acted upon it without Ntame
raising it with him. So he did not simply let the matter lie. In any event, it is important to bear in mind the alleged inconsistency that is being dealt with in both instances. The inconsistency alleged concerns the failure to take disciplinary action, it is not about the imposition of inconsistent sanctions following findings that other employees were found guilty of the same offence.
(DA12/05) [2007] ZALAC 40 (21 December 2007) at paragraphs 15 – 18 and Mpe v Polokwane Local
Municipality and Others (JR101/2023) [2024] ZALCJHB 426 (7 November 2024) at paragraphs 9 –
16.
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[30] It should also be noted that Blaauw’s conduct in in itially signing off of Ntame ’s
time-card cannot be equated with an endorsement of the shift change. He was
obviously unaware at the time that the time- card did not correspond with Ntame
working day -shift and as soon as he became aware of the discrepancy he took steps
to investigate it.
[31] In relation to the other issue concerning the third charge there is no real
dispute that initially Ntame started working a day shift even though he was rostered
to work at night. Even though Ntame was working on the wrong shift without
authorisation, Mr T Blom (‘Blom’), the area manager, came to an arrangement with
Ntame whereby he worked a shift which straddled the end of the day shift and a part
of the night shift (from 12h00 to 21h00) , to try and accommodate his problem
working on night shift. However, the time sheet was not amended to reflect the
change, which reflected that he was working a normal night shift (18h00 to 06h00) .
Blom found that Ntame had in fact been working from 10h00 to 22h00. Blom
questioned Ntame , who apologised and then the time sheet was amended. Blom
testified that he did not want Ntame to not be paid, even though an investigation was
required, so he signed the amended time sheet. It appears that the amendments
were not processed and Ntame was paid according to the unamended records.
[32] Ntame ’s criticism of the arbitrator’s reasoning is that she should have
accepted that the amendment of the time sheet after the unamended time sheet had already been sent for processing, was just part of normal practice. It is clear from the
events in question that the situation was far from normal because he was not even working the hybrid shift hours which had been agreed with Blom. On the evidence, it was quite plausible for the arbitrator to conclude that it was on Blom’s initiative that
the amended time sheet, which ultimately did not get processed, was drawn up. The
arbitrator made the point that if it had not been for Blom’s intervention, time sheet would not have been corrected. By implication, Ntame would have benefitted from
the longer hours recorded.
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Conclusion
[33] The grounds of review raised do not succeed in casting serious doubt on
whether the arbitrator’s findings on the various charges and her assessment that the
trust relationship had broken down can find enough support on the evidence before
her. In the circumstances, I am satisfied her findings and the relief she awarded are
not outcomes which no reasonable arbitrator could have arrived at.
Order
1. The late filing of the record is condoned, and the review application is
re-instated.
2. The review application is dismissed.
3. No order is made as to costs.
R Lagrange
Judge of the Labour Court of South Africa.
Appearances:
For the Applicant: C May from BDP Attorneys
For the third Respondent: L Msikinya from Msikinya Attorneys and Associates