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[2025] ZALCJHB 224
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Mbuyane v Dekker NO and Others (JR1173/2020) [2025] ZALCJHB 224 (18 June 2025)
THE
LABOUR COURT OF SOUTH AFRICA
AT JOHANNESBURG
Not Reportable
Case
no: JR 1173/2020
In
the matter between:
BANELE
INNOCENT MBUYANE
Applicant
and
COMMISSIONER
LEN DEKKER
N.O.
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Second
Respondent
STANDARD
BANK OF SOUTH AFRICA LIMITED
Third
Respondent
Heard
:
22 October 2024
Delivered
:
18 June 2025
Summary:
(Review – Dishonest
misrepresentation of cash received by bank – employee believing
practice acceptable on basis of
what he was told by supervisor –
arbitrator’s findings of guilt and upholding dismissal not ones
no reasonable arbitrator
could have arrived at, even if another
arbitrator could reasonably have found dismissal was too harsh a
sanction – review
dismissed)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
This is an opposed review application. The
applicant, Mr B Mbuyane (‘Mbuyane’) was dismissed for
dishonesty relating
to the submission of a false balance position for
the period 21 to 22 October, which was discovered upon a surprise
inspection
on 23 October 2019. He and his supervisor, Ms N Nkosi
(‘Nkosi’) were both dismissed arising from the incident.
The
first respondent, the arbitrator, found Mbuyane’s
dismissal was substantively and procedurally fair. Mbuyane seeks to
set
this award aside.
[2]
Mbuyane brought the review application
himself and personally represented himself at the court hearing.
Background
[3]
At the time of the incident, Mbuyane was
performing the function of a treasury custodian together with Nkosi,
who was performing
in the same capacity. They were responsible for
receiving cash for tellers from a security company (‘SBV’).
If the
amount received was incorrect, the cash had to be returned to
the security company. A balance sheet had to be completed which
corresponded
correctly with the amounts received from the security
firm.
[4]
Coinage was received on 18 October 2019,
but when Mbuyane weighed it the following Monday a shortage was
discovered in one of the
bags containing 20 and 10 cent coins. The
arbitrator found that Mbuyane correctly notified Nkosi of the
shortfall who agreed on
the shortfall and that the bag should be
returned to SBV when it made the next cash delivery. However, she
advised him that the
amount that would be captured on the system
would be recorded as the full amount that was originally ordered,
which meant that
the balance sheet would misrepresent the true
position.
[5]
The charge against Mbuyane was framed in
the following way:
“
Alleged dishonesty
in that you knowingly submitted a false balance position from the end
of 21st October 2019 to the 22nd
October 2019 as discovered
upon surprise check on the 23rd October 2019.”
(
sic
)
[6]
The parties concluded a comprehensive
pre-arbitration minute.
[7]
Mbuyane’s defence, as reflected in
paragraph 5 of the minute, is that he feared he would be acting
insubordinately if he disobeyed
Nkosi, that he had no formal training
as a treasury custodian, and that he had discharged his obligations
by reporting the shortfall
to her.
The award
[8]
The arbitrator found that they had jointly
created the document which misrepresented the correct cash status. He
noted that it was
common cause that to capture the misrepresentation
on the system the supervisor had to provide the Mbuyane’s user
details,
who had confirmed the information recorded. The arbitrator
noted it was common cause that, even though he knew it was a
misrepresentation,
he said he was acting under the instruction of his
supervisor and had no training on what to do in such a situation.
However, it
was also common cause that he did not report the
misrepresentation to anyone else.
[9]
The shortfall was discovered during a
surprise cash inspection by the risk mitigation team of the bank. The
team found that there
were two additional bags which were short,
making it three in all.
[10]
The arbitrator noted the applicant’s
defence that he obeyed his supervisor’s instruction because to
do otherwise would
have amount to insubordination. The branch manager
had testified that this did not mean he should have even obeyed an
unlawful
instruction, which was contrary to the values and principles
of the bank, set out in his letter of appointment other bank policy
documents. The arbitrator agreed and noted that it would have been
clear to Mbuyane that he was being asked to unlawfully misrepresent
the true cash balance. The fact that his supervisor had the final
word on the matter did not excuse his conduct in agreeing to
misrepresent the true balance.
[11]
The misrepresentation by the applicant and
his supervisor was dishonest and was serious misconduct. He had
actively participated
in making the misrepresentation. The same
principles which applied to him in his capacity as a treasury
custodian applied when
he was performing the role of cash consultant:
documents created should correctly reflect the factual situation, not
misrepresent
it. He could not rely on an unlawful instruction from
his supervisor, who was also dismissed for the same misconduct. The
arbitrator
emphasised that, on the contrary, Mbuyane had a positive
duty
not
to follow the unlawful instruction.
[12]
The arbitrator rejected the argument that
there was a practice of not recording shortfalls provided SBV
replaced the bags which
were short with bags containing the correct
amounts. He reasoned that a practice could not be conducted if it was
at odds with
the bank’s policies and principles.
[13]
The arbitrator considered the fact that
Mbuyane was subordinate in rank to Nkosi but found that they both had
a responsibility as
treasury custodians. Mbuyane should have the
matter to management. His conduct amounted to a breach of the trust
relationship.
[14]
The arbitrator found that integrity and
ethical conduct were core values of the bank and to create a document
misrepresenting the
facts, as they did, was contrary its policies and
values. However, the arbitrator did acknowledge that the applicant
had initially
acted correctly in reporting the cash shortfall to his
supervisor but then committed serious conduct when he cooperated in
misrepresenting
the facts on the balance sheet.
[15]
The arbitrator also found, as a matter of
principle, that the case law stated a commissioner ought not without
good reason interfere
where an employer, applying norms, standards
and values acceptable within the industry, who decides to dismiss an
employee who
contravenes the core requirements of the employer.
Grounds of review
[16]
The applicant drafted his review
application himself. Like many laypersons, he reiterated the merits
of his case rather than focusing
on the alleged fatal flaws in the
arbitrator’s reasoning. Making allowance for this, his
grounds of review will be
viewed on the basis that he is arguing that
the arbitrator’s findings are ones no reasonable arbitrator
could have arrived
at on the evidence before him.
[17]
As
his grounds of review aim to demonstrate that the arbitrator’s
factual findings are flawed, it is important to emphasise
that a
review application is not an appeal. Accordingly, even if the court
would have come to a different conclusion on its own
evaluation of
the evidence, what matters in a review is whether the arbitrator made
findings that no reasonable arbitrator could
have made
[1]
.
In the most recent LAC judgment reaffirming the test for a review
challenging the arbitrator’s factual findings on the evidence,
the court stated:
“
[24]
The limitations inherent in a right of review were recently affirmed
by this Court in
Makuleni v Standard
Bank of South Africa Ltd and Others
,
where Sutherland JA said the following:
‘…
The
court asked to review a decision of commissioner must not yield to
the seductive power of a lucid argument that the result could
be
different. The luxury of indulging in that temptation is reserved for
the court of appeal. At the heart of the exercise is a
fair reading
of the award, in the context of the body of evidence adduced and an
even-handed assessment of whether such conclusions
are untenable.
Only if the conclusion is untenable is a
review and setting aside warranted
.’
And further:
‘
To
meet the review test, the result of the award has to be so egregious
that, as the test requires, no reasonable person could reach
such a
result.’”
[2]
(emphasis added)
[18]
This means that in order to set an award
aside on the basis that the factual findings and award are
unreasonable, the conclusions
reached on the evidence are ones that
are incapable of being defended on any rational basis. If the
findings and outcomes are ones
that a reasonable arbitrator might
reach, then they must stand, even if it is also possible another
reasonable arbitrator could
have reached a different outcome.
[19]
Another requirement of the review test in
such cases, even if the some of the arbitrator’s findings
cannot stand, is that
the review court must still decide if the
outcome is nevertheless one that a reasonable arbitrator could have
reached by different
reasoning on the same evidence, viz;
“
The
court must nonetheless still consider whether, apart from the flawed
reasons of or any irregularity by the arbitrator, the result
could be
reasonably reached in the light of the issues and the evidence.”
[3]
[20]
Essentially, Mbuyane argues that the
arbitrator failed to appreciate that his primary role was that of a
cash custodian and, in
that capacity, he had not been trained in how
to deal with cash shortages in the treasury custodian position.
Further, he claims
the arbitrator ignored that there was no
fraudulent intent involved, that he was acting under instruction of
the supervisor and
that it was plausible for him to accept that the
discrepancy would be rectified when the security company replaced the
short bags
with the correct ones. The arbitrator ignored that
this was a practice, even if it was not strictly compliant. The
arbitrator also failed to consider that the correct procedure for
dealing with shortages had not been conveyed to him, and that
it was
not sufficient that he could access it the procedure on the bank’s
intranet.
Evaluation
Lack of training as a
treasury custodian.
[21]
Mbuyane’s branch manager, Mr E Engelbrecht (‘E1’)
testified that there was no specific training
of a treasury custodian
and that the principles governing the work of a cash consultant and a
treasury custodian are exactly the
same. When he was cross-examined
by Mbuyane, he gave the example of how a cash consultant would refuse
to accept a deposit from
a customer that was short and that this was
analogous to the situation when SBV made a short delivery, except
that in SBV’s
case the shortage would be recorded on a form and
conveyed to SBV. He claimed to have been unaware of the practise
which was followed
of simply retaining the bags which were short
until SBV could replace them, without recording the shortfall. No
evidence was led
to show that he ought to have been aware of it.
Engelbrecht was not challenged on his evidence that there was no
specific training
for treasury custodians.
[22]
The emphasis of the bank’s case was about the dishonest
representation which Mbuyane made in confirming that their
was no
shortfall, which was made on two consecutive days, despite him
knowing that it was a misrepresentation. Whatever the correct
process
for dealing with SBV was, that did not alter the fact that the
misrepresentation was made.
[23]
In the circumstances, even if the arbitrator did not deal with
Mbuyane’s lack of training as a treasury custodian,
the
evidence showed there was no such training available, and that the
key principle underlying the charge was no different for
a cash
consultant. Accordingly, it not apparent why the arbitrator would
have reached different conclusion, if he had dealt
with Mbuyane
not receiving specific training.
Absence of fraudulent
intent
[24]
It was never part of the bank’s case that Mbuyane had acted
with fraudulent intent when he made the false representation
about
the balance. It was simply the fact that it was not an honest
representation, which it believed undermined the ability to
trust
him. In so far as Mbuyane is claiming that the arbitrator
failed to treat this as a mitigating factor, the question
that has to
be asked is whether this would necessarily have swayed him to impose
a lesser sanction. It is possible another
arbitrator might have
placed emphasis on this factor and taken a more lenient approach, but
it does not follow that no reasonable
arbitrator could find that the
absence of fraud meant that dismissal was not an appropriate
sanction.
Acting under instruction
[25]
The arbitrator did consider this defence but rejected it on the basis
that it must have been clear to Mbuyane that he
was being instructed
to make a false representation which he must have known was unlawful.
If he felt he was being put in an impossible
situation by Nkosi, he
failed to report it to anyone else in the bank. It cannot be said
that no reasonable arbitrator could have
reached the same conclusion.
It was a plausible conclusion to have drawn, even if another
arbitrator could have taken the view
it was a factor that warranted a
more lenient sanction.
Existence of a practice
[26]
Undoubtedly, there was evidence that a practice was taking place
which was not compliant with the procedure that should
have been
followed when there was a shortfall in money received from SBV. If
the arbitrator’s finding meant that no such
practice existed at
all, his finding is not supported by the evidence. However, there was
no evidence this practice took place
with management’s
knowledge. If the arbitrator meant that there was no authorised
practice of that kind, his finding would
be perfectly justified.
[27]
Assuming the arbitrator simply meant that no such unofficial practice
existed, could the award still stand if he ought
to have found it
did? The fact remains that the unauthorised practice involved
falsifying the recorded balance of what had
been received from SBV.
The difficulty any arbitrator would have with accepting that Mbuyane
believed it was legitimate practice
is that it necessarily required
collusion between two staff members to falsify bank records. As
the essence of the charge
concerned the making of a false
representation and not that an incorrect procedure was followed, the
existence of the illegitimate
practice would not mean Mbuyane was not
guilty of the charge, so the existence of the practice would not have
had any impact on
the finding of guilt.
[28]
To the extent that Mbuyane believes the existence of the practice and
his ignorance of anything to the contrary ought
to have been a
mitigating factor, the arbitrator ought to have given this
consideration. However, when doing so the arbitrator
would also have
needed to consider whether it was plausible of Mbuyane to believe the
practice was legitimate, given that he realised
it required him to
act dishonestly. Accordingly, it cannot be said with confidence that
the existence of the unauthorised practice
and Ntuli’s
instruction to follow it, would necessarily have led any reasonable
arbitrator to conclude that dismissal was
too harsh a sanction.
[29]
I note, in
passing, that the arbitrator might appear to have believed he had to
adopt a deferent approach to the employer’s
dismissal decision.
The correct approach to be followed was laid down in
Sidumo
,
namely that the arbitrator must decide if the employer’s
decision to dismiss an employee was a fair one without deferring
to
the employer’s decision on what the appropriate sanction should
be, but also not by deciding what the arbitrator would
have done in
the employer’s shoes.
[4]
[30]
However, whether the arbitrator actually applied a deferential
approach in reaching his decision is not obvious.
I must
emphasise that these comments are strictly
obiter
because
Mbuyane did not raise any allegation that the arbitrator misdirected
himself in this regard. Accordingly, it is not a ground
of review
that needs to be considered. Nevertheless, because it was potentially
an important omission by Mbuyane, I feel it is
necessary to mention
that even if it had been raised as a ground of review I would still
have been satisfied that a reasonable
arbitrator applying
Sidumo
test could have arrived at the same outcome as the arbitrator.
Conclusions
[31]
In the light of the discussion above, I am not persuaded that the
arbitrator’s findings that Mbuyane was guilty
of the misconduct
and that his dismissal was fair are ones that no reasonable
arbitrator could have arrived at on the evidence
presented in the
arbitration. That said, it does not mean that another reasonable
arbitrator could not have concluded, on the same
evidence, that the
sanction of dismissal was too harsh.
Order
1. The review
application is dismissed.
2.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
In person
For the Third
Respondent: D Cithi from
Mervyn Taback Inc. t/a Andersen
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC) at paragraph 110,
where the Constitutional Court expressed the test in review cases
such as this
one as: “
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
[2]
Glencore
Operations South Africa (Pty) Ltd v Taala and Others
(JA 52/24)
[2025] ZALAC 23
;
[2025] 6 BLLR 559
(LAC) (27 March 2025)
[3]
Head of
Department of Education v Mofokeng & Others
(2015) 36
ILJ
2802 (LAC) at paragraph 31.
[4]
At
paragraph 178 and 182.