IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
REPORTABLE
Case No. : JR2116/2003
In the matter between:
ORACLE CORPORATION SOUTH AFRICA (PTY) LTD Applicant
versus
COMMISSIONER FOR CONCILIATION, MEDIATION First Respondent
AND ARBITRATION
NOWOSENETZ, L N.O. Second Respondent
CLARK, B Third Respondent
______________________________________________________________
CORAM: H.M. MUSI, J
______________________________________________________________
HEARD ON: 17 MARCH 2005
______________________________________________________________
DELIVERED ON: 29 JUNE 2005
______________________________________________________________
[1] This is an application brought in terms of section 145 of the
Labour Relations Act 66 of 1995 to review and set aside an
arbitration award. The background to the dispute is set out
hereunder.
[2] During 2002, the applicant, a duly incorporated company
specialising in the development and distribution of computer
software, engaged an employment recruitment agency called
Wisdom Management Search (Wisdom) to recruit a manager
for its sales department. Wisdom invited Mr. Bruce Clark
(the third respondent) to apply for the post, which he did and
was duly appointed to the post on 1 November 2002 at a
gross monthly salary of R50 000,00. Early in 2003, the
managing director of the applicant, Mr. Robin Morello
(Morello) discovered that the third respondent had omitted
from his CV that he had submitted when applying for the
post, mention of a previous employment with a company
called KSI. Now KSI had been the sole distributor of the
applicant’s products in South Africa but had during 1995
been bought by the applicant, which took over the business
and employees of KSI, so that the applicant literally became
a successor in business of KSI in South Africa.
[3] Morello then called the third respondent to a meeting on 13
February 2003 wherein the issue was discussed. The
minutes of this meeting were taken by the applicant’s human
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resource manager, Mrs. Elizabeth Morris (Morris) and are
very important. Pursuant to such meeting the applicant
charged the third respondent with misconduct, in that he had
allegedly secured the post by fraudulently misrepresenting
his CV. At the ensuing disciplinary hearing, the third
respondent pleaded guilty to the charges and was duly
convicted and dismissed.
[4] The third respondent was not happy with the sanction of
dismissal and declared a dispute with the CCMA (the first
respondent). Conciliation having failed, the dispute was referred
for arbitration and Mr. L. Nowosenetz (the second respondent) was
appointed to preside over the proceedings. I shall henceforth refer
to the second respondent as the arbitrator and to the third
respondent simply as the respondent.
[5] The arbitrator issued his award on 19 September 2003. He
found that the respondent’s dismissal was substantively
unfair and ordered that the applicant pay him compensation
in the amount of R300 000,00, being the respondent’s
monthly salary computed to three months. It is this award
that the applicant wants reviewed and set aside. The
application is being opposed only by the third respondent
(the respondent).
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[6] The first ground of attack as appears in the applicant’s
founding affidavit is that the arbitrator misconducted himself
in relation to his duties as commissioner, alternatively that he
exceeded his powers or committed a gross irregularity. The
basic query in this regard is that the arbitrator should not
have revisited the finding made by the disciplinary tribunal
that the respondent was guilty of misconduct in the form of
dishonesty in that he had deliberately and fraudulently
misrepresented his CV in order to secure employment with
the applicant. The contention was that the sole issue for
consideration by the arbitrator was the appropriateness of
the sanction of dismissal.
[7] The contention aforesaid arises from the fact that the
respondent had pleaded guilty to the charges at the
disciplinary hearing and if there was any doubt about what
the charges were, the prosecutor there clarified that when he
stated the following:
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“The charges against you, Mr. Clark, is that you falsified your
CV in order to – you know you fraudulently and dishonestly
misrepresented your curriculum vitae at the time of your
employment with ORACLE. Those are the charges that we are
going to put to you. You know the question is not when was
your CV falsified, it is the fact that you did dishonestly and
fraudulently misrepresent your record of employment.”
The respondent then pleaded guilty.
[8] In the referral of the dispute to the CCMA in the form of LRA
11 under paragraph 4(b) where the question is asked why
does he say that the dismissal was unfair, the respondent
specifically stated that the nature of the offence does not
warrant dismissal. This clearly shows that the dispute was
not about the merits but rather the appropriateness of the
sanction. When the matter came for arbitration, the parties
signed an Agreed Statement of Facts which defined the
issues to be decided. Paragraph 15 thereof states:
“The applicant challenges the substantive fairness of his
dismissal only. The applicant argues that the sanction of
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dismissal was too harsh. The respondent alleges that the
sanction of dismissal was justifiable and fair.”
[9] This statement is somewhat ambiguous for the phrase
“substantive fairness” of a dismissal ordinarily relates to the
merits of the dispute, the question being whether the
misconduct alleged had been proved or whether there were
valid grounds justifying a dismissal, in contradistinction to
procedural fairness. A dismissal may be substantively fair
and yet procedurally unfair and vice versa . On the other
hand, a dismissal that is both substantively and procedurally
fair may be set aside on the basis that as a sanction it is too
severe or not justifiable. Which is which in this case?
[10] It appears that there was no dispute between the parties
about what was intended to be put before the arbitrator for a
decision, nor did the arbitrator raise any queries in this regard.
The statement that the applicant (respondent) challenges the
substantive fairness of the dismissal is followed immediately by the
following:
“The applicant argues that the sanction of dismissal was
too harsh.”
Read within its proper context, the statement clearly conveys
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that what was being challenged was the sanction of
dismissal and not the merits. If there is any doubt about that,
it will be dispelled by what transpired during the arbitration as
set out hereunder.
[11] Although he did give his version as to how it came about that
the employment with KSI was omitted from his CV, the
respondent’s evidence in chief centred on the difficulty of
finding alternative employment, including inability to go back
to his last employer, IBM, as well as his present predicament
where he had to survive on a mere R10 000,00 per month as
compared to the R50 000,00 per month that he used to earn
at Oracle. This was perfectly in line with his initial referral of
the dispute to the CCMA, where his only complaint was the
severity of the sanction. It is abundantly clear that this is
how his new attorney, Mr. Simpson, who incidentally also
represented the respondent in the instant application,
understood the position and led him along similar lines.
[12] A somewhat confusing stance was adopted by Mr. Roskin,
the attorney who represented the applicant in those
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proceedings. He devoted much of his crossexamination of
the respondent to the circumstances leading to the applicant
employing the respondent. He inexplicably seems to have
wanted to show that the respondent had deliberately
misrepresented his CV in order to secure employment with
the applicant; in short, to show that the respondent had been
dishonest. His crossexamination on the appropriateness of
the sanction covers only one page of the record.
[13] Mr. Roskin proceeded in similar vein when he led the
evidence of Morris. He literally canvassed issues relating to
the merits of the dismissal. He led evidence on inter alia
how it was discovered that the respondent had omitted the
employment with KSI in his CV, the meeting of 13 February
2003 when the respondent was confronted with the
discovery as well as some other discrepancies in the
respondent’s CV.
[14] Interestingly in the crossexamination of Morris, Mr. Simpson
did not delve much into the issues canvassed by Mr. Roskin.
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In my view, this confirms that Mr. Simpson was aware that
these issues were not relevant to what the arbitrator needed
to decide. Incidentally the questions that the arbitrator put to
Morris relate only to the sanction. Morris conceded that
according to the company’s code of conduct, imposition of
the sanction of dismissal in respect of dishonesty and related
infractions is discretionary and depends on the
circumstances of each case.
[15] If there was any doubt that the issue before the arbitrator
was the appropriateness of the sanction of dismissal, it is
dispelled by the closing argument presented by the
respondent’s attorney. He specifically conceded that the
respondent had been dishonest and that this amounted to
misconduct. His main submission was that dismissal was, in
the circumstances, too severe and unjustifiable. The closing
argument of the applicant’s attorney also focused on the
sanction, he submitting that dismissal was appropriate.
[16] It is clear from the above that the arbitrator was not called
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upon to decide on whether the respondent had been guilty of
misconduct in the form of dishonesty. It had clearly been
common cause between the parties that dishonesty had
been shown and they had accepted the verdict of the
disciplinary tribunal in this regard. In making a finding to the
contrary, the arbitrator exceeded his powers as well as
committing a gross irregularity. See F N MARKETING
DISTRIBUTION SERVICES v COMMISSIONER MATTHEE
AND OTHERS (2002) 23 ILJ 1413 (LC) at paragraph 21 and
the authorities cited therein.
[17] Likewise in finding that the omission of his employment with
KSI in the respondent’s CV was not material, the arbitrator
misdirected himself. The issue was not whether but for the
omission the applicant would have employed him. The point
is that the respondent deliberately concealed pertinent
information from the applicant. It may well be that had the
information been disclosed, the applicant may have decided
not to employ him. Again the point is that the applicant was
deliberately denied the opportunity of making an informed
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decision either way. It follows also that the finding that the
applicant had failed to discharge the onus of proving that the
respondent falsified information in order to secure
employment is misplaced. Besides, it is an issue falling
outside the issues that the arbitrator was called upon to
decide.
[18] It stands to reason that the submission that the arbitrator
exceeded his powers and committed a gross irregularity is valid
and the award stands to be reviewed on that ground alone. In
view hereof, it is unnecessary to deal with the extensive analysis of
the evidence and submissions made in this regard by Mr. Myburgh
for the applicant in his heads of argument and oral argument.
Those submissions relate to the ground that the arbitrator’s
conclusions are, objectively viewed, not rationally connected to the
evidence or to put it otherwise, that the findings are not justifiable
on the evidence as was enunciated in CAREPHONE (PTY) LTD v
MARCUS NO AND OTHERS (1998) 19 ILJ 1425 (LAC) and
reaffirmed in SHOPRITE CHECKERS (PTY) LTD v RAMDAW NO
AND OTHERS (2001) 22 ILJ 1603 (LAC). Incidentally this is the
ground on which Mr. Simpson focussed his argument as well. He
contended that the arbitrator’s findings are in fact justifiable on the
evidence.
[19] I have to state though that I agree with the submissions
made by counsel for the applicant. To illustrate the point I
briefly deal with the finding that the respondent’s act in
falsifying his CV did not amount to dishonesty in relation to
his application for the post to which the applicant appointed
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him. The respondent clearly indicated that he had
deliberately decided to omit from his CV any reference to his
employment with KSI because it was difficult to explain and
that he did not want to jeopardise his chances of finding
employment. He gave a disingenuous explanation to the
effect that this referred to him not wanting to jeopardise his
chances with the other companies to which he had applied
but not specifically in relation to the applicant. And yet he
persisted in presenting the same doctored CV even when
applying to the applicant, inspite of the fact that the applicant
had practically moved into the shoes of KSI in South Africa.
If he had forgotten about the omission surely the fact that he
was going to sell the same products that he used to sell at
KSI should have rang a bell.
[20] In the event, his evidence was highly contradictory and
shows that he had not forgotten about it. When taking into
account what he had said to Morello at the meeting of 13
February 2003 (and the minutes of that meeting were not
disputed) then the only conclusion that could reasonably be
12
reached was that he deliberately concealed the information
in order not to jeopardise his chances of employment with
the applicant. If that is not dishonesty then I don’t know what
else it is. In short, there was no basis for interfering with the
verdict of the disciplinary tribunal in finding that the
respondent had been guilty of dishonesty, in line with his
plea of guilty.
[21] I now turn to consider the real and only issue that was
properly before the arbitrator for a decision, the fairness of
the sanction of dismissal. The arbitrator correctly remarked
that as a general rule a commissioner is not at liberty to
substitute his/her own sanction for that of the disciplinary
tribunal. However, he felt obliged to tamper with the sanction
because of his finding that the respondent was not guilty of
dishonesty. I have already indicated that it was not within
the arbitrator’s power to reopen the inquiry into the
respondent’s guilt; and, at any rate, such finding was not
justifiable on the evidence.
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[22] Once it is accepted that dishonesty had been proved, the
basis of the arbitrator’s interference with the sanction falls
away. It is not disputed that the applicant’s code of conduct
has marked out any offence involving dishonesty as a
dismissable offence. Now it is also so that the respondent
has expressed remorse. However, he has, in my view,
perpetuated the dishonesty by attempting to disguise it with
the disingenuous explanations that he had erased the
omission from his memory when applying to the applicant
and trying to evade its consequences by saying that what
mattered was only his ability to perform.
[23] This brings to mind what was stated in DE BEERS
CONSOLIDATED MINES LTD v CCMA AND OTHERS
(2000) 21 ILJ 1051 (LAC) at paragraph 25:
“Where as in this case an employee over and above having
committed an act of dishonesty falsely denies having done so
an employer would, particularly where a high degree of trust is
reposed in an employee, be legitimately entitled to say to
himself that the risk of continuing to employ the offender is
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unacceptably great.”
Compare also TOYOTA SA MOTORS (PTY) LTD v
RADEBE AND OTHERS (2000) 21 ILJ 340 (LAC) at
paragraph 24.
There can be no gainsaying the fact that the post to which the
respondent was appointed is a senior post, which required a high
level of trust and integrity. The applicant was entitled, in the
circumstances, to say that it was risky to keep the respondent in its
employ as it could no longer trust him.
[24] It has to be borne in mind also that the respondent was
employed on a six months probation with effect from 1
November 2002, which means that his position would have
come up for reconsideration at the conclusion of the
probation at the end of April 2003 and the applicant would
then have been justified to release the respondent by virtue
of the misdemeanour. In the event, the respondent was
dismissed on 17 March 2003 on notice. I understand this to
mean that the notice extended up to the end of the probation
period, which means that the respondent was entitled to be
paid his full salary up to the end of April 2003. This was, in
my view, a most appropriate and fair course to follow in the
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circumstances. However, I was informed during the hearing
that the respondent has not been paid the April salary, to
which he was entitled. In my view, this shortfall can best be
compensated for by absolving him from liability to pay the
applicant’s costs, which he would normally have been
obliged to do.
[25] In the result, the application succeeds and the following
order is made:
(a) The arbitration award issued by the second respondent
on 19 September 2003 under no. GA11527/2003 is
reviewed and set aside.
b) No costs order is made.
___________
H.M. MUSI, J
On behalf of applicant: Adv A T Myburgh
Instructed by:
Cheadle Thompson & Haysom Inc
BRAAMFONTEIN
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On behalf of first respondent:
Instructed by:
On behalf of second respondent:
On behalf of third respondent: Adv M J van As
Instructed by:
Simpson Van Niekerk Attorneys
RANDBURG
/sp
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