Ahmod v Standard Bank of South Africa Limited and Others (JR 2726/19) [2021] ZALCJHB 191 (3 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2726/19

In the matter between:

FATIMA BIBI AHMOD Applicant

and

THE STANDARD BANK OF SOUTH AFRICA LIMITED First Respondent

CHARLES OAKES [ N.O] Second Respondent

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION Third Respondent

Heard: Decided on paper, enrolled for hearing on 23 April 2021

Delivered: 03 August, via email.

Summary: Review Application – Condonation Application – Rule 7A (8) Notice –Rule 7A(6) – Clause 11.2.2 of the Practice Manual- Hearsay Evidence – Entrapment – Inference – Sanction- Review Application Dismissed – No Costs Order.

JUDGMENT

MABASO, AJ

Introduction

[1] The Applicant seeks an order to review and set aside an arbitration award issued by the Second Respondent (“Arbitrator”) and be substituted with an order that her dismissal by the Standard Bank of South Africa Limited (the “First Respondent”) was both substantively and procedurally unfair. There is also an interlocutory Application , a condonation application, for a purported late delivery of a Notice in terms of Sub-Rule 7A (8) of the Rules this Court (“7A (8) Notice”). The First Respondent is only opposing the review application.

Condonation application

[2] The 7A (8) Notice was delivered simultaneously with a condonation application because of misapprehension by the Applicant's legal representatives that it was filed out of time; cause this sub-rule read with Rule 7A(6)[1] provide that an Applicant must deliver a notice indicating whether they stand or supplement their founding papers, and this must be made within 10 days following the Registrar making the records available.

[3] However, reading both the sub-rules as mentioned earlier in isolation from clause 11.2.2 of the Practice Manual of this Court, one would inevitably think that notice in terms of sub-rule 7A (8) must be filed before arbitration records are delivered and Respondents are supposed to file opposing papers before the records are delivered. I say this because clause 11.2.2 sanctions the records to be delivered “within 60 days of the date on which the applicant is advised by the registrar that the record has been received.” Clause 11.2.2 extends the period to file the both the records and a notice in terms of Rule 7A(8) notice.

[4] I, therefore, conclude that the 7A (8) Notice could not be delivered without considering the transcribed records as it would defeat the whole purpose of amending the founding papers and placing relies on same in reviewing the decision of an Arbitrator. Considering the papers before this Court, it is clear that Rule 7A (8) Notice was delivered within the required time, extended by clause 11.2.2 of the Practice Manual, therefore, there was no need for the condonation application to be launched in light of the provisions mentioned above. Consequently, the condonation application is struck off the roll with no costs order.

Relevant background and arbitration

[5] The Applicant was charged and dismissed of this charge:

"dishonesty, in that on 25 July 20 you allowed your subordinate employee, Mr Kevin Naidoo, to assist you in achieving the required competency level when completing your regulatory compliance training on your behalf on the subject Anti Financial Crime Awareness, or you allowed him to complete the said training on your behalf. Your alleged actions contravened the Group’s requirement for completing compliance training without assistance…."

[6] The person who spilled the beans was Mr Kevin Naidoo (Mr Naidoo), who once worked for the First Respondent and was an erstwhile subordinate and boon companion to the Applicant.

[7] Mr Naidoo sent emails to the First Respondent alleging that he and the Applicant were involved in irregularities, in that he completed a training task on behalf of the Applicant and this conduct was against the policy of the First Respondent; and further called for the dismissal of the Applicant. The First Respondent commissioned an investigation which in the process retrieved exchanged emails between the Applicant and Mr Naidoo. Subsequently, a disciplinary hearing was instituted against the Applicant wherein she made some concessions relating to the allegations made by Mr Naidoo. He was found guilty and then dismissed.

[8] The Arbitrator arbitrated the resultant dispute; the disciplinary records were placed before the Arbitrator, as he was required to consider all evidential material before deciding the fairness of the dismissal. See County Fair Foods (Pty) Ltd v CCMA & others.[2]

[9] The Applicant's testimony is summarised thus: she was given a task by the First Respondent to do a competency training designed to test her knowledge of relevant regulations within her department. She tried completing it numerous times but failed. During 2018, she was accepted for religious pilgrimage, which commenced in July 2018. Her Line Manager instructed her to complete all compliance training before the pilgrimage. On or about 23 July 2018, Mr Naidoo approached her and commented that she looked stressed, and she responded by conveying her worries in struggling to complete the compliance training.

[10] Mr Naidoo then offered to give her a helping hand by providing a mini-training session. The former had successfully completed his assigned training without any challenges. She accepted this offer. She stated that this training took place a few after she accepted the offer from Mr Naidoo. Subsequently, she started to complete the compliance training assessment in the presence of Mr Naidoo. Her evidence continued thus:

“ I attempted it and did not initially meet the minimum mark. Mr Naidoo suggested that he would make notes of the responses as I make them on the system as I moved along…."[3]

[11] The Arbitrator held that in determining as to whether the First Respondent’s policy had been breached or not, he acknowledged that the Applicant denied that Mr Naidoo assisted her. One of the defences was that Mr Naidoo sent the emails to the First Respondent. However, Mr Naidoo did not testify both in the disciplinary hearing and the arbitration. He acknowledged that the First Respondent’s evidence was mainly based on the investigator’s findings. They relied on the emails exchanged between the Applicant and Mr Naidoo; furthermore, the Applicant argued that the emails were hearsay evidence.

[12] The Arbitrator observed section 3(4) of the Law of Evidence Amendment Act 45 of 1988. In conclusion, he held that in as much as the evidence consisted of hearsay evidence, it was accepted as their contents were in line with concessions made by the Applicant, specifically that when the Applicant was asked if Mr Naidoo assisted her in completing the training her answer was “yes”.

Grounds for review

Hearsay evidence

[13] The Applicant contends that the Arbitrator committed a reviewable irregularity, as she submits that he erroneously accepted hearsay evidence. According to her, once a conclusion is made that evidence is hearsay, that is the end of the inquiry, so no further analysis is required and the Arbitrator should not have dealt with the matter further, as the Applicant says, “that should have been the end of the matter”. Furthermore, says her concession that she was aware of the emails does not mean the contents thereof were correct. On this basis, she submits that her version should have been accepted.

[14] Recently, the Constitutional Court, in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (State Capture)[4] at para 20, emphatically summarised the criteria of accepting hearsay evidence thus:

"Importantly, this Court must consider [1] the nature of these proceedings and [2] the evidence itself, [3] the purpose for which the evidence is tendered, [4] the probative value of the evidence, [5] the reason that it is not given first-hand by the person upon whose credibility it depends, and [6] any prejudice that the admission of the evidence may entail"

[15] In casu, firstly, these emails were used during the disciplinary hearing, and before the Arbitrator their contents were deliberated on; secondly, the purpose of using them was to show that Mr Naidoo assisted the Applicant in augmenting the version of the investigator, and thirdly when the Applicant was confronted with part of the emails wherein Mr Naidoo wrote that he worked on her laptop doing the assessment on her behalf and this was not seriously disputed.[5] Moreover, when she was asked during the disciplinary hearing a question framed thus “Did Mr Naidoo assist you to complete your anti-financial crime awareness training” her answer was “Yes”. The purpose of the emails was to support the First Respondent’s version that the Applicant had committed the offence, in line with the investigation report and concessions made during the disciplinary hearing, which confirmed the context of the emails that Mr Naidoo assisted her.

[16] Based on the foregoing, whether Mr Naidoo had attended to confirm the emails at the hearing does not assist the Applicant’s case because she confirmed that Mr Naidoo assisted her in completing the task designed to assess her capabilities within the division. Therefore, I conclude that the Arbitrator's findings regarding the emails that the Applicant committed the misconduct are consistent with all the evidence presented before him. I must also mention that the Arbitrator was bound to consider the totality of the evidence before him by assessing the probative weight of the hearsay evidence, which he managed to do so properly. So his findings in this regard cannot be disturbed by this Court.

Entrapment

[17] The Applicant believes that Mr Naidoo entrapped her. So, according to her, Mr Naidoo’s statements have little probative value as evidence because of the alleged entrapment. Based on what I have already indicated in the preceding paragraphs under the first ground, I do not think this point takes this application further. Furthermore, even if there was entrapment by Mr Naidoo, it has nothing to do with the First Respondent because no evidence tendered to show that the latter instigated such entrapment. Instead, it seems like two friends had differences on something known to them, then Mr Naidoo opted to expose his friend.

Sanction

[18] On this ground, the Applicant insisted that she did not commit the offence dismissed for, despite her concession mentioned in this judgment. She also contends that the First Respondent embarked on a witch-hunt in dismissing her.

[19] The law requires an arbitrator to inter alia determine whether the dismissal was an appropriate sanction, if it is one of the disputed aspects.

[20] In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA[6] signed posted thus about intertwined mitigating and aggravating factors in dismissal disputes,

“…The third respondent committed an act of serious misconduct. He deliberately failed to follow the sampling procedure and was recalcitrant about his wrongdoing. In such circumstances, his years of service and seniority serve not only as mitigation but also aggravation particularly in light of the fact that his work has a serious impact on the decision that the employer would take in relation to which area should be mined and the costs implications attached thereto."

[21] In paragraph 89 of the arbitration award, the Arbitrator inter alia states that the Applicant worked in the compliance department, in a senior position, leader of a department and was expected to ensure that the First Respondent complies with the relevant prescripts of the financial sector. Furthermore, he mentions that the Applicant's conduct in allowing the subordinates to conduct her assessment has to be viewed in a serious light given the trust relationship that is imposed on her. I must mention that as the Applicant is an admitted attorney more was needed from her. In passing, I must mention that, unfortunately, a certain standard is expected from a lawyer, so you need to be careful of whatever you do and/or whomever you associate yourself with because that will determine your future, which is the case in this matter.

[22] In the circumstances, I am of the view that the conclusion reached by the Arbitrator cannot be disturbed and is one that a reasonable decision-maker could have made in light of the evidence and circumstances presented before him.

[23] The remaining grounds for review are meritless, so they do not even require consideration. In my view, the Arbitrator conclusion is both lawful and reasonable.

[24] In the following circumstances, I make the order:

Order

1. The review application is dismissed.

2. 2. Condonation application is struck off the roll.

3. 3. No order as to costs.

Sandile Mabaso

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Dewey Hertzberg Levy Inc.

For the Respondent: Mervyn Taback Inc.

[1] (6) The Applicant must furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body.

[2] [1999] 11 BLLR 1117 (LAC)

[3] Transcribed records, p 328.

[4] (CCT 52/21) [2021] ZACC 18 (29 June 2021)

[5] Records: p 306.

[6] [2014] 1 BLLR 20 (LAC)