REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D 881/01
In the matter between:
RALLIE MOODLEY Applicant
and
Illovo Gledhow and Others Respondents
JUDGMENT
NTSEBEZA, AJ:
INTRODUCTION
[1] On the 8th of April 2003, Mr Purdon (for the Applicant), and Mr O’Connell
(for the First Respondent), appeared before me, in a matter which,
because of the strenuousness with which each case was argued, has
necessitated the re-reading of a record that runs into some hundreds of
pages. In the nature of things, when I heard them, I had not had the
opportunity to study the record, it not being the only voluminous record,
and an opposed matter that had been put on my roll of matters for that
day – and the same on subsequent days. Inevitably, I reserved judgment,
indicating to the parties that I would take time to hand down the
judgment. The following is my judgment.
[2] The Applicant, Moodley, was an employee of the First Respondent, Illovo,
from 1983 before he was dismissed pursuant to a disciplinary enquiry
(and a failed appeal) for offences which I will outline hereunder. Having
failed to reverse his dismissal, Moodley approached Third Respondent, the
Commissioner for Conciliation, Mediation and Arbitration (CCMA), for
remedy. His contention was that Illovo had unfairly dismissed him. The
dispute could not be conciliated.
[3] The CCMA duly appointed the Second Respondent, Sungaree Pather (the
arbitrator) to adjudicate the dispute that had arisen between Moodley and
Illovo. The arbitrator duly dealt with the matter on the 21 st and 22 nd of
May 2001 and handed down an award on the 11 th of June 2001 in which
she found that by reason of the nature of the charges in relation to which
Moodley had been charged and found guilty, the trust relationship
between Moodley and Illovo had broken down. She consequently found
that the dismissal had been procedurally and substantively fair and
dismissed Moodley’s application in the CCMA, effectively upholding his
dismissal by Illovo. Moodley has approached this Court, and alleges, in
paragraph 5 of his founding affidavit that the application is brought in
terms of Section 145 of the Labour Relations Act No. 66 of 1995 (the LRA).
[4] Section 145 of the LRA reads as follows:
“145 Review of arbitration awards
(1) Any party to a dispute who alleges a defect in any
arbitration proceedings under the auspices of the
Commission may apply to the Labour Court for an order
setting aside the arbitration award –
(a) within six weeks of the date that the award was
served on the applicant, unless the alleged defect
involves corruption; or
(b) if the alleged defect involves corruption, within six
weeks of the date that the applicant discovers the
corruption.
(1A) The Labour Court may on good cause shown
condone the late filing of an application in
terms of subsection (1).
(2) A defect referred to in subsection (1) means –
(a) that the Commissioner –
(i) committed misconduct in relation to the duties of
the Commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the Commissioner’s powers; or
(b) that an award has been improperly obtained.
(3) The Labour Court may stay the enforcement of the
award pending its decision.
(4) If the award is set aside the Labour Court may –
(a) detain the dispute in the manner it considers
appropriate; or
(b) make any order it considers appropriate about the
procedures to be followed to determine the dispute.”
I will return to Section 145 later.
BACKGROUND
[5] The case against Moodley arose when Illovo’s General Manager received
certain information alleging that there were irregularities in its stores. An
investigator, Hughes, was called in to assist in the investigation in these
allegations. Hughes, on the 8 th of August 2000, visited one Logie Reddy
(Logie) at her business, The Tool Trade. He confronted her with
information that she was involved in illegal dealings with regard to
grooving inserts with Moodley. Hughes told Logie that if she did not
cooperate with him, she would be “ blacklisted” inasmuch as her business,
Tool Trade, would no longer be able to deal with Illovo. She was also told
that she might go to jail. She cooperated with Hughes and even gave him
a statement.
[6] A week thereafter, on 15 August 2000, the investigator confronted
Moodley with the allegations that Logie had made as well as allegations
that certain suppliers had made to him in the process of investigation. It
would appear that Moodley was soliciting or receiving various loans from
the suppliers of Illovo, in that way seriously compromising his position of
trust with the company. These were the allegations that Hughes put to
him a week after he had met Logie. Insofar as his dealings with Logie are
concerned, Moodley was confronted with the allegation that he had
received cash or margins on the supply of sugar from Logie, conduct
which was seen by Illovo as illicit dealing. As a consequence of this
confrontation, Moodley provided Hughes with a statement and two letters.
[7] This cooperation by Moodley had been preceded by a measure of
resistance, firstly in the form of a denial of any form of involvement with
Logie in the manner alleged, or of him ever having received any cheques
from her or from her business. However, when Hughes insisted on having
his fingerprints so that he could compare those with prints on a cheque
which had been cashed at Nedbank, Moodley conceded that he had
handled one of the cheques, but persisted in denying ever having
anything to do with two other cheques which had been mentioned in the
context of the allegations against him by Hughes. Later, however, he
accepted and admitted that he had received all three cheques from Logie.
[8] Insofar as the allegations of soliciting and/or receiving loans from
suppliers are concerned, Moodley initially was so adamant in protesting
his innocence that he agreed to undergo a polygraphy test, a commitment
which he promptly thereafter reneged from, particularly when he was
confronted with facts regarding a loan from one Nair. He later conceded
having received a loan from Mr Nair in April 2000 and having solicited
various others. He argued that there was nothing wrong with taking loans,
nor was there any rule in Illovo against that practice. As Mr O’Connell
states it in his heads of argument, once again, when Moodley was
confronted with a witness, one Naidoo, that he had been specifically
forbidden to solicit or take loans from suppliers, Moodley engaged in an
act of self deprecation, thereby seeking to convey an impression that he
was feeling remorseful about his conduct.
[9] When the investigation process was complete, Moodley was charged,
essentially with serious misconduct insofar as he had solicited or received
various loans from suppliers of Illovo, thus compromising his position of
trust with the company. He was further charged with dishonesty in that he
had been involved in illicit dealings with Tool Trade where he had received
cash or margins on the supply of sugar from Logie aforementioned. As has
already been indicated, he was essentially convicted of these offences
and was summarily dismissed, and his appeal failed. A similar endeavour
to reverse his fortunes before the arbitrator met with similar failure. I
must now decide whether to uphold Moodley’s protestations of innocence
on the basis alleged by him, canvassed by Mr Purdon in argument before
me and which are dealt with further in Mr Purdon’s heads of argument.
[10] The gravamen of Mr Purdon’s attack on the arbitration award is that the
arbitrator invoked what he calls the reasonable employer test, a test,
which, in his submission, was discredited by the Labour Appeal Court in
Toyota South African Motors v Radebe & Others (2000) 9 BLLR 995.
Mr Purdon further attacks the conclusion of the arbitrator by alleging that
she totally ignored the evidence that the Applicant was in no position to
influence which supplier would be used by Illovo. Further, particularly with
regard to the second charge of misconduct insofar as Moodley is said to
have acted dishonestly, Mr Purdon argues that the arbitrator’s
misdirection comes, if I understood him well, from the fact that she
declared, in the course of her award, that because she accepted that
there were conflicting versions between the evidence of Moodley and that
of Logie, the issue must therefore be decided on the basis of the
credibility of the witnesses. That declaration, according to Mr Purdon, is a
grave misdirection and is a reviewable irregularity, and for that he
referred me to the following authorities, National Employers General
Insurance Company v Jaggers 1984 (34) SA 434 (E at 440), Adv PJ
Pretorius SC; Assessing Credibility in Labour Arbitrations , 1990
(unpublished paper). I note here that no copy of this “ unpublished paper”
was made available to the Court.
[11] Mr Purdon made the most of what he called the contradictions in the
evidence of Logie, in an endeavour to demonstrate how dishonest Logie
was, particularly insofar as she was quite ready make false and purjurous
statements in an endeavour to conceal her relationship with Moodley. Mr
Purdon submitted that there must be credence lent to Moodley’s version
that he, Moodley, had had an illicit love affair with Logie, which would
explain the animus that existed between Logie and Moodley that led Logie
to falsify facts to Illovo. I will deal, in context, with this evidence
hereinbelow.
[12] In dealing with the evidence, Mr O’Connell argued that insofar as I should
look to the evidence to determine the issues of whether I should review
and set aside the arbitrator’s award, it is really the evidence of Moodley
and Logie that I must apply my mind to. He conceded that the versions
are mutually destructive. Firstly, he submits, Logie claims to have
received an order for grooving inserts in the presence of Moodley,
knowing that to fill the order would be almost impossible through her
conventional suppliers, who required six weeks and a minimum of twenty-
four (24) inserts. She was offered a stock of these grooving inserts by
Moodley from whom she later purchased some twenty-two (22) inserts on
various occasions.
[13] Moodley on the other hand, denies any knowledge of these transactions,
contending that they are a total fabrication borne of Logie’s desire for
revenge because he had terminated a sexual relationship with her. Mr
O’Connell argued that I should be persuaded by the evidence of Logie
because there is some logicality in the way her testimony finds some
support from particularly the undisputed evidence of Hughes. It was not
Logie who had initiated the complaint by Hughes. Logie herself had given
the information because she had been confronted. Further, the
termination of the relationship between Moodley and Logie occurred on
the evening of the 14 th of August 2000, a week after Logie had been
confronted, and had given the requisite information. Mr O’Connell
therefore argues that it would be illogical to allege that Logie turned the
tables on Moodley because Moodley had terminated the sexual
relationship between the two of them. I agree.
[14] O’Connell further argued that even though it is clear on the evidence that
Logie changed her version with regard to the delivery of the grooving
inserts to her premises (as opposed to her later version that she had
received those directly from Moodley), it should be borne in mind that at
the time she gave evidence she was highly strung, having been
confronted by the investigator and his assistant, Reyersbach; her child
had been critically injured; she had just avoided being incarcerated for
failing to turn up for a traffic fine, had been threatened by Reyersbach
with jail and, in the light of all of this, so argued Mr O’Connell, it would not
be surprising that her initial reaction would be to distance herself from the
obvious and sinister feature of the transaction, namely the receipt of the
grooving inserts from the Applicant directly.
[15] Mr O’Connell argued that it was noteworthy that she changed her version
of her own accord despite the risk of exposing herself to statutory perjury,
and with no apparent compulsion to do so. (If one looks at the conduct of
Moodley, on the other hand, as indicated above, it was only when it was
clear that he had no answer to facts put to him, or when it was clearly
demonstrated that he was lying that Moodley would change his story.)
[16] In his analysis of the Applicant’s version, Mr O’Connell submitted that
there are inherent improbabilities in the version of Moodley. Not only did
he lie on several occasions, by his own admission to the investigators; he
failed dismally to explain why he raised the alleged sexual affair between
him and Logie very late. He did not tell the investigators at the disciplinary
enquiry or his General Manager about this alleged affair because,
according to him, he was worried about his wife finding out.
[17] I find this explanation by Moodley very thin particularly in view of the fact
that it should have been clear to him that if he was not able to give an
explanation for his conduct, he was going to be dismissed, as indeed he
was, because there was no explanation forthcoming. I agree with Mr
O’Connell that his suggestion that he failed to provide an explanation
because he thought he might get away only with a warning is risible.
[18] I am satisfied that there is really nothing to choose between the versions
of Moodley and Logie. I am persuaded by Mr O’Connell’s argument that
where a version had to be preferred in the light of the probabilities, it is
the version of Logie that should be preferred. The question, however, is
whether there was anything irregular in the manner in which the arbitrator
is accused of having approached the evidence. The allegation by Mr
Purdon was that the arbitrator decided the conflict in the versions by first
determining who of the two witnesses was credible whereas, apparently
on Mr Purdon’s view, she ought to have had regard to the probability
before doing so.
[19] I have tried to understand the criticism against the manner in which the
trier of fact approached the evidence. I am finding difficulty in
appreciating the critical difference that Mr Purdon was trying to outline.
There does not seem to be a firm ground on which his conclusion can be
based if one reads the plain language in which the award is written. How
in the reading of the flow of that language a conclusion is drawn that the
arbitrator first determined the credibility of witnesses before determining
what the probabilities were, it seems to me, is to strain the language used
by the arbitrator in her award.
[20] I would sooner go with the view that the Arbitrator determined both the
credibility of the witnesses and the probabilities, together, in a manner
that led her, faultlessly in my view, to the conclusion that the probabilities
are such that the evidence of Logie must be preferred to the evidence of
Moodley because Logie came across as the more credible witness than
Moodley.
[21] Sitting as I do as a review judge, I fail to understand, in this case, how I
could decide to set aside an award given by an arbitrator who sat at the
hearing, observed the witnesses, their demeanour and the manner in
which they came across. She was steeped in the atmosphere of the
proceedings before her. I cannot see that I can interfere merely on an
assessment of whether she misdirected herself by reason of the fact that
she considered whether the witnesses were credible before determining
what the probabilities were in the light of their testimonies.
[See: Rex v Dhlmayo and Another 1948 SA 677 AD.]
[22] I should be extremely reluctant to upset the findings of the Arbitrator,
unless I am persuaded that her approach to the evidence, and her
assessment thereof, was so glaringly out of kilt with her functions as an
arbitrator that her findings can only be considered to be so grossly
irregular as to warrant interference from this court. I have not been able
to find that there is anything glaringly irregular in the manner in which she
not only approached the evidence but also expressed the manner in which
she made the assessment, and concluded that one of the two bad
versions is to be preferred.
[23] In view of the fact that I am persuaded that the evidence of Logie was
properly assessed by the arbitrator, I cannot fault her decision that the
dismissal was procedurally and substantively fair. If, as the arbitrator did,
the evidence of Logie demonstrated that Moodley was engaged in
dishonest practices as an employee of Illovo, and it follows that the trust
relationship between Moodley and Illovo could not prevail, it seems to
follow, therefore, that the proper outcome, in the circumstances, would be
the dismissal of Moodley. It therefore becomes unnecessary for me to
determine whether the arbitrator did or did not rely on the so-called
reasonable employer test in coming to her conclusion about the sanction
that was proper to be imposed.
[24] Whereas it has been strenuously argued on behalf of Moodley that there
was nothing wrong with soliciting or receiving loans from suppliers, I am
satisfied that the arbitrator properly applied her mind to the implications
of an employee in the position of Moodley who would seek loans from
suppliers. It is clear to me that this was an untenable position. When one
regards the evidence of Nair, namely, that he believed that refusal to
grant the loans would prejudice his position with Illovo, it is quite clear
that this was conduct which was totally unacceptable and insofar as the
arbitrator found it to be so, it is, in my considered view, a firm basis on
which a conclusion could have been arrived at that that conduct, in and of
itself, was conduct warranting the sanction of dismissal. This would be
over and above the dismissal sanction based on her finding of dishonesty
by Moodley in his dealings with Tool Trade as alleged already. I am
stronger in this view when regard is further had to the evidence of Naidoo
[see paragraph above].
[25] Moreover, in my reading of the record, I have not been persuaded that
the arbitrator has committed any misconduct in relation to her duties as
an arbitrator, nor were there instances indicated to me that gross
irregularity has been committed insofar as she conducted the arbitration
proceedings, nor did she exceed her powers as Arbitrator. These, as
indicated in Section 145 of the LRA hereinabove, are the only grounds on
which I can interfere with the award.
[26] Since I have found that there is no argument that was placed before me
that indicates violation of the provisions of this Section, I am also
consequently unable to find that any proper grounds of review have been
put before me on the basis of which I can interfere with the Arbitrator’s
award. I therefore decline Mr Purdon’s invitation for me to do so. In the
result, and for all the reasons articulated in this judgment, the application
is dismissed with costs.
________________________________________________
D B NTSEBEZA
Acting Judge of the Labour Court of South Africa
Date of Hearing: 8 APRIL 2003
Date of Judgment: 12 December 2003
For the Applicant: MR B PURDON
From: Brett Purdon Attorneys
Durban
For the First Respondent: V O O’CONNELL
From: Van Onselen O’Connell Inc.
Durban