Sneller Verbatim/PJ
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO: J3914/00
2002-02-11
In the matter between
BANKING INSURANCE ASS. WORKINGS UNION First
Applicant
M.NHLAPO Second Applicant
and
MUTUAL & FEDERAL INSURANCE CO. LTD
Respondent
__________________________________________________________
JUDGMENT
_________________________________________________________
WAGLAY J:
In this matter the second applicant claims that his dismissal by the
respondent constitutes an automatically unfair dismissal and the
relief he seeks is that of reinstatement.
The grounds upon which the claim is based is that respondent
dismissed the second applicant because second applicant
exercised his right to represent a fellow employee at an
arbitration. This, second applicant contended amounted to
victimisation.
Second applicant further alleged that his dismissal was also
procedurally unfair, because the respondent failed to notify and/
or consult the First Applicant about the disciplinary action being
taken against him as respondent was required to do because
the second applicant was a shop steward of the first applicant.
Very simply the relevant facts are the following. One Monyai
was charged with misconduct. The second applicant
represented Monyai at the disciplinary hearing. Monyai was
found to have committed the misconduct and was dismissed. In
due course Monyai referred the matter to the CCMA for
conciliation and thereafter to arbitration in terms of the
provisions of the LRA.
At the arbitration the commissioner found that the dismissal of
Monyai was substantively fair, but procedurally unfair. One of
the alleged reasons given by the commissioner for finding
Monyai's dismissal to be procedurally unfair, was that the
chairperson of the disciplinary hearing, unreasonably refused to
grant Monyai a postponement of the hearing.
The submission that the chairperson unreasonably refused to
grant a postponement as requested by Monyai at Monyai's
disciplinary hearing was made by the second applicant at
Monyai's arbitration. He did so in writing. In fact the most
relevant portion and that which forms the substantive subject
matter of the proceedings before this court as written by the
second applicant and forwarded to the commissioner as heads
of argument, records the following:
"...Secondly, during the hearing the applicant requested a
postponement of the hearing at least for four days and also
requested that the respondent provide copies of all
documentation upon which it intended to rely for evidence
during the investigation as well as the identity of all [of its
witness]."
As a consequence of making the above and similar statement
elsewhere, second applicant was charged with misconduct.
It was alleged by the respondent that in making the statement
to the commissioner at the arbitration that Monyai applied for a
postponement of the disciplinary hearing and that such request
was unreasonably refused, second applicant was dishonest.
Respondent alleged that the above statements as made by the
second applicant were false to second applicant's knowledge
and were made deliberately. They were made to mislead the
commissioner and as such constituted a serious breach of the
employer/employee relationship because it breached the
implied duty of trust that forms the basis of an employment
relationship.
An employee must in relation to his duties act fairly and
faithfully. When an employee takes on the role of representing
fellow employees in disciplinary matters, this may create
conflicting interests. Here the employee, representing a fellow
employee, must act in good faith and honestly while the law will
protect him in so far as he fulfils his role as a representative of a
fellow employee in disciplinary matters, he cannot escape
disciplinary measures being taken against him if he commits a
misconduct simply because the misconduct was committed
while performing duties that he was entitled to perform.
Representing a fellow employee does not licence the
representative to be untruthful or dishonest. If the
representative is simply advised of a state of affairs of which he
has no knowledge and he represents a fellow employee
asserting such a state of affairs even if it transpires that the
state of affairs as represented were untrue, no blame can be
apportion to the representative. This is so because he, like a
lawyer defending his client, carried out an instruction.
However, where the representative places "evidence" or makes
submission in the defence of an employee knowing that such
evidence or facts or submissions are false, then it goes beyond
the bounds of performing a duty of representing a fellow
employee. He is in fact committing a misconduct which his
employer is entitled to act against.
In this case if what the respondent alleges is true, then the
second applicant cannot escape disciplinary action on the basis
that he was acting upon "instructions" given. In any event
second applicant's defence is not that he made the statements
knowing them to be false because he believed that he could do
so or that he was not aware that such submissions would be
improper to make. His defence to the charge was that the
submissions made to the commissioner at the arbitration were
based on fact and were true.
During the course of the trial the second applicant firstly alleged
that at no time during Monyai's arbitration proceedings, did he
ever raise the issue or put to respondent's witnesses that
Monyai had applied for and was refused a postponement and he
therefore could not be said to have mislead the commissioner.
This is not borne out from the transcript of the arbitration
proceedings. If anything the record unequivocally shows that
the issue of postponement was cross-examined about by the
second applicant.
Secondly, and in any event, so second applicant's defence goes,
at Monyai's disciplinary hearing Monyai did in fact request a
postponement and it was refused by the chairperson of that
hearing. In support of this defence second applicant submitted
that there were four instances in which postponement was
requested and refused. I shall deal with each.
The one instance it said was recorded on page 8 of the Monayi
disciplinary hearing transcript. This page, accordingly to
applicants, is a proper transcript of what is on the tape with the
changes suggested by them and that the cassette tape records
all that transpired at the hearing. On this page it is recorded
that second applicant sought an adjournment and that it was
refused. Later on this same page the chairperson inquires if
Monyai still needed the adjournment and it was then granted.
According to the second applicant the adjournment that was
granted was in respect of an issue different than the one for
which adjournment was requested earlier.
Having read page 8 of the transcript and the page preceding it, I
do not
believe that second applicant has been truthful. It is quite plain
perusing the context of the evidence there recorded that the
adjournment granted was linked to the earlier request (made no
more than 5 to 10 minutes earlier). Second applicant also
sought to suggest that what it sought was to adjourn for days
and not minutes. This again is, having regard to the transcript,
false. I am therefor satisfied that second applicant, when he
suggest that he made the submission based on the instance as
recorded at page 8, that he was being untruthful.
The second instance applicants claimed was as recorded on
page 18. According to the applicants the transcription on page
18 is self evident-it demonstrates that Monyai at that time
requested that the matter be postponed and that the
postponement was not granted.
Again applicants admit that the transcript was correct and that
the recording did not contain any omissions. Having read this
page I found there to be nothing which by any stretch of the
imagination can be construed to imply a request for a
postponement. Second applicant's evidence here is that the
request for the postponement must be implied because a
person's name is mentioned who could possibly be a witness
against Monyai, this according to applicant meant that a
postponement was necessary.
This is not only unlikely but so far fetched that the only
inference I can draw is that second applicant was aware that the
contents of this page did not constitute any request for a
postponement, implied or otherwise.
This then takes us to the two other instances where the second
applicant suggests requests for postponements were made.
However, the second applicant contends that neither the tape
recording has it on record nor are these request for
postponements in the transcript of the hearing. According to
second applicant at page 33 and 38 of the transcript there
should have been recorded requests for postponements
because it was at that time period that such requests were
made. The more important missing evidence should have been
on page 38 where a four day postponement was in fact
requested according to the second applicant.
I find it surprising that this evidence which is so crucial to the
second applicant would have been deliberately not recorded,
more so because this evidence was recorded at the hearing
which took place years before anyone knew that applying for a
postponement was going to be an issue at all. Why was this
evidence not recorded? There is no explanation.
According to the unchallenged evidence of Slater, who was the
prosecutor at Monyai's disciplinary hearing and the person who
operated the recording of the hearing, all of the evidence and
arguments given and made were recorded. Am I to assume that
this evidence simply disappeared?
The evidence tendered by the respondent was that there never
was a request for a postponement and that if such a request
was made it would have been entertained. This is also evident
from the transcript of the Monyai disciplinary hearing. If one has
reference to the record of the said disciplinary hearing it is
difficult to accept second applicant's version that the requests
for postponement were in fact made. This is so for inter alia the
following reasons:
1. If such request was made and refused, why was this not recorded
as one of the grounds upon which Monyai's dismissal would be
contended to be procedurally unfair in the pre-arbitration
meeting?
2. Why was it not raised by the second applicant in his defence at his
disciplinary hearing?
3. Why was it not raised in response to a direct question relating
thereto at the pre-trial minute in this matter?
Furthermore having regard to the transcript, there is no logical
reason why a postponement would have been sought on those
specific instances (page 33 and 38). Second applicant's
evidence that postponements were sought at the time the
evidence as recorded on page 33 was given because it required
the respondent to amend the charges preferred against Monyai,
does not make sense. The respondent who was preferring the
charges did not desire to amend the charges why then would
applicant request that the matter be postponed for respondent
to amend the charge-sheet and thereby prejudice Monayi (his
own client)?
With regard to page 38 again I refuse to accept having regard to
the transcript that second applicant and Monyai would have at
the time in the proceedings sought a postponement, let alone
one for four days. I have no doubt that no postponement as
alleged by the second applicant was sought by Monyai at his
disciplinary hearing wherein he was represented by the second
applicant.
In the circumstances the submission made by the second
applicant at Monyai's arbitration hearing to the effect that
Monyai sought postponement and was refused, was false. In
this respect I accept that adjournment and postponement carry
the same meaning.
In so far as second applicant seeks to claim that he believed
that postponements were sought and refused and that he did
not intend to mislead or intentionally mislead the commissioner,
these claims I also do not accept. Intention and belief are not
proved or disproved by the ipse dixit of the parties. It is evident
from a number of factors, not least of which are the
circumstances surrounding the actions which are found to be
deliberate. Circumstances surrounding the submission made by
the second applicant to the commissioner at Monyai's
arbitration hearing, having regard to detail in which it was done,
demonstrates that the submissions were deliberate.
Furthermore the fact that this was not an issue that was
recorded as an instance relating to procedural unfairness at
Monyai's hearing seen against the background that second
applicant was thorough, competent and capable of attending to
the arbitration negates any challenge that his actions were not
deliberate or not intentional.
Having found therefore that second applicant did commit the
misconduct, is this misconduct of such a nature that an ultimate
penalty of dismissal should be visited upon the second
applicant? The misconduct is serious. It is not one, however,
which relates to the duties and functions of his employment with
the respondent. It relates to activities which he voluntarily
assumed. However, this does not make the wrong less serious.
One also cannot simply look at the misconduct in isolation from
what transpires in respect of the process that flows from the
charge. Not only do I find that second applicant has committed
the misconduct, but has compounded his wrongful conduct by
his failure to admit it and to make serious accusations against
those who sought to prove second applicant's wrongful conduct.
By the admission of the wrong, this instance might have
received a degree of sympathy with regard to sanctions. As
things have developed they can be no working relationship
between the parties, the only appropriate sanction in this case
would therefore be one of dismissal. In the circumstances I am
satisfied that the dismissal of the second applicant by the
respondent was substantively fair.
Turning then to the dismissal being procedurally unfair. The
only complaint raised by the second applicant in this regard is
that his dismissal was procedurally unfair because respondent
failed to inform his trade union, first applicant, as required by
item 4[2] of schedule 8 of the Act of the disciplinary action being
taken against him.
In this regard firstly, the first applicant is not recognised by the
respondent. Secondly, on the evidence led on behalf of the
applicants, the evidence was that the respondent in fact never
communicated with the first applicant in respect of issues
relating to the work place other than when dealing with
retrenchments and thirdly, that the respondent in fact never
regarded the shop stewards as shop stewards and that
respondent dealt directly with all its employees. I therefore see
no reason why respondent here should have been obliged to
inform first applicant about the disciplinary action it intended
taking against second applicant.
Schedule 8 merely serves as a guideline. While compliance
therewith is often recommended and at times non compliance
may for good reason constitute unfair conduct on the part of the
employer. This, however, is not the case here, for reasons
stated above, taken together with the fact that the purpose of
item 4[2] is to ensure that the trade union is aware that an
action is being taken against its representative because this
may effect its operation within a work place wherein it is
recognised and operates, where a trade union and/or its
representatives is/are not recognised the need for such notice or
consultations cannot be obligatory. In the circumstances I am
satisfied the dismissal was also procedurally fair.
With regard to costs. The basis upon which I have to consider
whether or not costs should be awarded is to have regard to
both law and equity. In terms of law costs should follow the
results. In terms of equity I have a discretion. I have had some
doubts on the granting of costs, however, after careful
consideration I am satisfied that this is a matter where it would
be iniquitous for costs not to follow the result. As there are two
applicants, I order that costs should be paid jointly and
severally, the one paying for the other to be absolved.
In the result I make the following order:
The application is dismissed with costs. The costs are to be paid
by the applicants, jointly and severally, the one paying for the
other to be absolved.
______________________
WAGLAY J