Arcelormittal South Africa Limited v Pretorius and Others (JR999/2014) [2016] ZALCJHB 351 (14 September 2016)

THE LABOUR COURT OF SOUTH AFRICA

JOHANNESBURG

Not reportable

Case no: JR 999 /2014

In the matter between:

ARCELORMITTAL SOUTH AFRICA LIMITED

Applicant

and

HENDRIK STEPHANUS PRETORIUS

First Respondent

METAL AND ENGINEERING INDUSTRIES

BARGAINING COUNCIL

Second Respondent

JOHAN STAPELBERG N.O

Third

Respondent

Heard: 1 September 2016

Delivered: 14 September 2016

Summary: Review application. Applicant failed to prove charges and arbitrator’s findings that dismissal was unfair is not to be interfered with on review.

JUDGMENT

PRINSLOO J.

Introduction

[1] The Applicant seeks to review and set aside an arbitration award issued on 4 May 2014 wherein the Third Respondent (the arbitrator) found the First Respondent’s (the Respondent) dismissal substantively unfair and awarded him compensation equivalent to twelve months’ remuneration.

[2] The Respondent opposed the application.

Background facts

[3] The background facts are herewith summarised as follows:

[4] The Applicant employed the Respondent on 19 December 1997 and at the time of his dismissal in August 2012 he was the group manager: warehouse.

[5] After the Applicant received an anonymous tip off, the Respondent’s travel claims were audited and he was subsequently charged with various counts of misconduct relating to dishonesty.

[6] The Applicant was found guilty and was dismissed for the following charges:

‘Charge 1

‘9 Dishonesty – in that it is alleged that during the period September 2009 and September 2011, you submitted Travel and Subsistence Claims (T&S claims) wherein you over-claimed to the value of R 882-00 and 236 kilometers (km) for business travel from your residence in Parys to OR Tambo Airport, round trip’.

‘Charge 2

‘9 Dishonesty –in that it is alleged that during the period September 2009 and September 2011 you submitted Travel and Subsistence Claims (T&S Claim) wherein you over claimed to the value of R 2990.00 and 810 km for business travel from your place of work in Vanderbijlpark to OR Tambo Airport round trip.’

‘Charge 3

‘9 Dishonesty – in that it is alleged you submitted a travel and subsistence claim for the period 21 June 2010 – 25 June 2010, for a trip from Vanderbijlpark to Durban return wherein you over claimed to the value of approximately R 5 268-00 and 1488 kilometres. Your trip during your vacation to a KZN holiday resort does not qualify as business travel in terms of the Travel and Subsistence allowances for Local Travel Policy’.

[7] The Applicant has a travel and subsistence policy (the policy) that sets out how business kilometres should be claimed. It provides inter alia that only actual business kilometres travelled may be claimed for on the shortest route principle and that claims would only be paid if they are approved. The policy also contains a table of standard distances between airports and centres, which should be used as a guideline as actual distances may vary and where the claim varies significantly from the standard distance, such claim may be queried and requires additional motivation prior to payment.

[8] At the arbitration the Respondent did not dispute the existence of the rules or his awareness thereof, but disputed that he acted in breach of the rules, that he acted dishonestly and that the sanction of dismissal was appropriate.

The evidence adduced:

[9] The issue to be decided by the arbitrator was whether the Respondent’s dismissal was substantively fair and a decision on whether dismissal was the appropriate sanction should follow.

[10] In order to assess the arbitrator’s findings and the award he issued, it is necessary to consider the charges the Respondent was dismissed for and the evidence adduced. The Respondent was found guilty of and dismissed on three charges of misconduct, all relating to dishonesty. All charges related to the submission of travel and subsistence claims. The first charge was for the period September 2009 until September 2011 the Respondent submitted claims where he overclaimed to the value of R 882 and for 236 km. The second charge is for the same period where he overclaimed 810 km to the value of R 2999. The third charge relates to the period

21 – 25 June 2010 for a return trip from Vanderbijlpark to Durban wherein the Respondent claimed 1488km to the value of R 5 260 when he coupled an official business trip with a family vacation.

[11] The Applicant’s human resources shared service centre manager, Mr du Preez (du Preez) testified in respect of the Applicant’s travel and subsistence policy and he explained how the policy is applied. Du Preez explained that a claim is not paid until it is approved by the employee’s manager and if the claim exceeds the standard kilometres set out in the policy, the shared service centre will refer it back to the manager for approval and motivation.

[12] Du Preez further explained that in terms of the policy an employee should keep a logbook of his travel, indicating the exact point of departure, point of arrival, date and kilometres travelled. The travel logbook should be attached to travel claims and could be used to explain deviations from the standard kilometres.

[13] He testified that if a travel claim ends up with the shared service centre department and it is obvious that the policy was not followed, the claim is not paid but referred back. It is the manager’s responsibility to ensure that the policy is applied.

[14] Du Preez did not adduce any evidence specifically related to the charges the Respondent was dismissed for or the Respondent’s conduct. His evidence was concerning the policy and its application in general.

[15] The Applicant also called Eric Motsoane (Motsoane) as a witness. He is the Applicant’s manager asset protection services and he drafted the charges and acted as the prosecutor in the Respondent’s disciplinary hearing.

[16] In respect of the first charge he testified that the Respondent claimed kilometres from his residence to O R Tambo International Airport (the airport) and on certain dates he over claimed kilometres when compared with the distances the Applicant found from Google maps. For instance on 21 September 2009 the Respondent over claimed 12 kilometres.

[17] Motsoane testified that when the Respondent was confronted with this in the disciplinary hearing and asked which route he normally used to travel to the airport, the Respondent stated that he used various routes especially in 2010 when the roads around Johannesburg were upgraded, he used different routes depending on the circumstances. The Respondent explained that he would sometimes travel via the Springs tollgate, sometimes he would go through Benoni, depending on the road conditions.

[18] Motsoane testified that the kilometres claimed by the Respondent were more than the kilometres he got when he calculated the distance on Google maps, but in the same breath the Respondent sometimes under claimed based on the Google maps calculation of the distances. What is significant is that Motsoane did not do the same exercise with Google maps in respect of the alternative routes the Respondent claimed to have used to travel to the airport. It is questionable that in the absence of calculating the distance on the alternative routes, Motsoane would have been in a position to know that the Respondent indeed over claimed as he had no idea of what the variances on the different routes might be.

[19] The Respondent was accused of dishonesty, after he tendered an explanation for the kilometres to the airport in which he over claimed, where the Applicant failed to do a simple check on Google maps to verify the routes and the accusation of over claiming. Motsoane just did a Google map search on what he accepted to be the shortest route and he made no attempt to verify if the alternative routes could explain the kilometres claimed.

[20] The explanation the Respondent provided for calculating the distance for purposes of his travel claim was that he used his car for official trips only and he would fill up his tank with petrol, travel the official trips and when he filled up the tank again, he would divide the kilometres he travelled between the trips he did, using his diary, and that explained why there were discrepancies from time to time. The respondent’s evidence was that he would fill up every day or at most every second day, so it was relatively easy for him to calculate the kilometres he travelled.

[21] Motsoane took issue with this method of calculating official kilometres as the policy stipulated that the Respondent was required to keep a logbook and to record each and every trip. The Respondent did not keep a logbook, but used his diary to check which meetings he attended and then he divided the kilometres according to the meetings, explaining why he sometimes over claimed and sometimes under claimed. The Respondent’s case was and he was adamant that he only claimed what he had travelled.

[22] In respect of the second charge and more specifically the event of 24 August 2009 Motsoane testified that the Respondent travelled from Vanderbijlpark to the airport and he was entitled to claim 230 kilometres, instead he claimed 484 kilometres. The Respondent’s explanation was that he was coming back from Durban and from the airport, he had to go to the Applicant’s office in Sandton, where after he drove to his place of residence in Parys.

[23] The MTN records however showed that the Respondent was not near Sandton as alleged on 24 August 2009.

[24] In respect of the third charge Motsoane testified that the Respondent travelled to Durban with his family, where he had to attend a meeting on the Monday. The Respondent had booked a holiday at Pebble Beach with his friends and family and when the Applicant asked him to attend a meeting in Durban, he moved his trip to Pebble beach a week earlier to the weekend preceding the Monday when he had to attend the meeting. The Respondent left Vanderbiljlpark on Friday, stayed over at his friends over the weekend and attended the meeting on Monday, driving from Pebble Beach to Durban, back to Pebble Beach and from there back to Vanderbijlpark. The issue was that the Respondent claimed this as a business trip. Motsoane explained that this could not have been a business trip as the Respondent could not have claimed for the entire trip, but only from Pebble beach to Durban and back to Pebble Beach. The Respondent could not have claimed from Parys to Durban as if it was an official trip.

[25] The Respondent conceded that he should not have claimed for the entire trip, but only from Pebble Beach to Durban and back. He explained that at the time his reasoning was that he had to fly down to Durban, which would cost the Applicant a plane ticket, accommodation etcetera and instead he did it the way he did as he was on leave and paid for his own accommodation, hence his claim was not excessive. The Respondent stated that he combined his weekend with a work visit as the cost to the Applicant would have been the same if he had to fly to Durban, stayed in a hotel and rented a car instead of driving down. He had travelled to Durban by car in the past and it was not an issue and this would not have been an issue had he travelled alone.

[26] In cross examination Motsoane conceded that the Respondent flew in excess of 30 times a year and for the entire 2009 he over claimed two times, three times in 2010 and five times in 2011 for trips from his residence to the airport.

[27] Motsoane conceded that it is possible to claim more kilometres than what is provided for in the policy, but such should be motivated. The Respondent explained why he travelled more kilometres, inter alia because his travelling time was during peak hours, he did not always used the shortest route as the traffic was blocked and he used alternative routes.

[28] Motsoane was questioned as to why he did not accept the Respondent’s explanation as a reasonable explanation and he responded that the Respondent was asked to explain how many kilometres he travelled on the alternative routes and he could not explain that, more specifically which route he used on what date. This was not surprising as the Respondent was only asked in July 2012 to explain kilometres he travelled on certain dates as far back as 2009.

[29] It was common cause that the Respondent offered to refund the Applicant for the amounts reflected in the charge sheet. Motsoane testified that he viewed the offer as an admission of guilt and that it was indicative that the Respondent knew he did something wrong. The Respondent testified that he offered to repay the money as he viewed his job as important and he accepted as a human being it was possible that he has made a mistake and he was prepared to repay the money as his job was more important than anything else. The Respondent explained that the total amount where he over claimed was approximately R 9 000 over a period of 3 to 4 years, whilst he earned R 66 000 per month. He stated that it was absurd to allege that he wanted to enrich himself and it was never his intention to do so.

[30] The third witness called by the Applicant was Mr Kanti (Kanti) a manager in the law enforcement division of MTN. His evidence explained the Respondent’s movements at specific periods, using the MTN phone records. The relevance of his evidence was specifically related to the second charge. Kanti confirmed that there was no signal picked up for the Respondent’s cellular phone for the period 24 – 28 August 2009 in the Sandton area as it appears that the signal during this period was picked up in Richardsbay and the airport.

[31] The Respondent testified that he claimed for travelling since 1997 when he started to receive a car allowance and he always claimed for the actual official kilometres that he had travelled. For the period between 1997 and 2012 there were only two queries relating to the travel claims he submitted. He testified that since 1997 he was never told which route to travel or that he had to travel a particular route.

[32] The Respondent explained that the 484 kilometres he claimed in August 2009 was a bona fide mistake, which he did not pick up earlier. He explained that he used the spreadsheet of the previous month, on which there were figures, and he simply copied and pasted the spreadsheet and inserted new information. He could not verify the 484 kilometres to be travelled to the airport and home and the only explanation was that he made a mistake by submitting kilometres from the previous month as he used the same spreadsheet. This was discovered for the first time in 2012 when the Respondent faced disciplinary proceedings. In the disciplinary hearing the Respondent indicated that he went to Sandton, but after he heard the testimony from Kanti, he accepted that he was not in Sandton and he explained the mistakes he made in that he used information from a previous spreadsheet and submitted a claim for 25 August 2009, which should have been for the next Monday, 31 August 2009. The Respondent testified that his personal administration was very bad.

[33] The Respondent testified that when he submitted the travel claims, his intention was to be reimbursed for the expenses he incurred, as provided for in the policy. In approximately 15 years he submitted travel claims monthly and his claims were queried only twice during this period. He submitted that he had been working for the Applicant for a period of almost 35 years and he never had any intention to be fraudulent or dishonest in any manner. His goal was to end his career with the Applicant after 40 years of service. He would not defraud the Applicant after all the time and effort he has put in, sometimes at the expense of his family.

Analysis of the arbitrator’s findings and grounds for review

[34] The Applicant’s case is that the arbitrator committed gross misconduct and in that regard raised three main complaints. Those are that he did not give the parties a full opportunity to present their versions in respect of the dispute, he did not understand the nature of the dispute he was required to arbitrate and that he did not deal with the substantial merits of the dispute.

[35] In argument before Court Mr Mokhatla for the Applicant conceded that no case was made out in the papers to support the allegation that the arbitrator did not give the parties a full opportunity to present their versions and the Applicant was not persisting with this ground for review and the allegation that the arbitrator did not give the parties a fair hearing.

[36] Mr Mokhaltla submitted that the only ground for review is that the arbitrator did not determine the dispute regarding the substantive fairness of the Respondent’s dismissal with due regard to the evidence before him.

[37] Before dealing with the grounds for review, it is pertinent to consider the arbitrator’s analysis of and findings based on the evidence before him. The arbitrator identified the issue to be determined as whether the Respondent’s dismissal for dishonest conduct was substantively fair. I have already set out a summary of the evidence that was adduced and placed before the arbitrator supra. The arbitrator made the following relevant findings in respect of the issue he had to decide:

37.1. The Respondent was dismissed for charges relating to dishonesty and the onus was on the Applicant to prove the substantive fairness of the Respondent’s dismissal. The Applicant failed, on a balance of probabilities, to prove that the Respondent acted with the intention to benefit inappropriately or to deceive the Applicant. The Applicant failed to prove the essential element of intent when charging the Respondent with dishonesty;

37.2. The Applicant dismally failed to prove the crucial element of intent. The Respondent made careless errors and that resulted in under claiming for legitimate trips. There is a single incident of major deviation (24 August 2009) and that was explained and showed that the Respondent made a mistake. The arbitrator accepted that the Respondent was capable of making mistakes, even to his own detriment. Some deviations included in the charges were as little as 6 or 12 km. The arbitrator took the view that the Applicant started with a preconceived view that the Respondent was guilty and he questioned the motives of the Applicant when it made the worst possible assumptions and did not deal objectively with the Respondent’s explanations.

37.3. The time frame remained significant as it relates to the overall fairness of the decision. The Applicant expected the Respondent to provide information on the exact routes he travelled on specific dates between one and three years ago, when there is no requirement in the policy to record the actual routes travelled at any time;

37.4. The policy does not define the terms ‘expenses must be reasonable and within acceptable limits’ or how much deviation from a ‘standard distance’ might be considered as one that would ‘vary significantly’. Approval of claims was within the manager’s discretion and the respondent submitted claims without the intention to deceive or gain,

those were considered to be reasonable and within acceptable limits and were approved by the Respondent’s managers. It is not open for the Applicant to question this, years later without questioning the managers who approved the claims;

37.5. On the flights taken by the Respondent, the arbitrator calculated that for the period June 2009 until September 2011 the Respondent would have undertaken 70 flights. Taking into consideration the long distances involved and the various possible route deviations that might be necessary due to delays on the road, the Applicant found 16 trips where the distances were over claimed and two where it was under claimed. The distances over claimed vary between 6 – 92 kilometres for a total claim of R 3 872. On the Applicant’s own version there was no proper examination done to check the reasonableness of the Respondent’s explanation for the variances and this did not constitute proof of a pattern and did not prove dishonesty.

37.6. The Respondent used the same method consistently to record his trips and where he recorded carelessly, it resulted in a mistakes such as the trip claimed for Sandton for 24 August 2009. The Respondent admitted to the mistake. The Respondent was never made aware that his approach or method of recording was wrong or unacceptable and one would expect a reasonable approach to be corrective discipline. The Respondent was never afforded corrective discipline but was branded as dishonest from the start.

37.7. In respect of charges 1 and 2 the arbitrator found that over a period of two years and three months, hundreds of business trips and tens of thousands kilometres travelled, The Applicant’s detailed investigations indicated a grand total of 16 trips that could be questioned as over claimed, (some with as little as 6 km) with a total value of R 3 872. In the same period the Respondent earned in excess of R 1 700 000. The arbitrator found it questionable that anyone could reasonably believe that the Respondent intended to defraud the Applicant out of such a small amount over such a long period of time. The Respondent was not infallible in the manner he kept his records and he made minor errors, but there is no proof of an intention to deceive or defraud the Applicant.

37.8. In respect of the third charge the arbitrator found that the Respondent had combined business and private travel arrangements in the past, he did the same on this occasion and he did so with the knowledge and approval of his manager. There is no absolute requirement that he had to fly to Durban instead of driving and it did not cost the Applicant more than it would have if he had travelled on his own. The Respondent had no intention to deceive, he did not act secretively, but with the full knowledge and approval of his manager. If there was any criticism on how the Respondent applied the policy, it should have been dealt with at the time or soon thereafter, not two years later.

37.9. The arbitrator accepted that the Respondent’s initial concession that the way he claimed was not correct and offering to repay, was due to his desire to appease the Applicant and to protect his interests and not due to remorse for misconduct he did not commit.

37.10. In conclusion the arbitrator found that the Respondent’s action amounted to minor negligence and not dishonesty. He considered the appropriateness of the sanction and found that where dishonesty was not proven, dismissal was extremely prejudicial and inappropriate and the Respondent’s dismissal was substantively unfair.

37.11. The arbitrator awarded maximum compensation and he justified doing so by considering the Respondent’s nearly 35 years of service, his clean disciplinary record, the prejudice he has suffered as a result of his unfair dismissal and his age that would make finding alternative employment at a comparable level of income difficult.

[38] The Applicant seeks to review and set aside the findings of the arbitrator and in view of Mr Mokhatla’s concession in Court, the only ground for review that the Applicant is persisting with is the arbitrator’s findings in respect of the Respondent’s dishonesty. In the Applicant’s heads of argument those are referred to as the ‘dishonesty findings’.

[39] The Applicant’s case, as put forward in the papers and heads of argument, is that the Respondent was dishonest as his travel and subsistence claims were inflated compared to the shortest distance possible as well as the routes considered by Motsoane.

[40] The Applicant submitted that the Respondent over claimed on 24 August 2009 and his explanation at the disciplinary hearing was false and he claimed for private expenses as business when he travelled from Pebble Beach. The Respondent’s dishonesty emerged from objective facts.

[41] The Respondent did not submit his claims in the manner he should have and given his concessions, the arbitrator should have found him guilty of dishonesty and by failing to take into account the concessions, the arbitrator did not understand the nature of the dispute he was required to arbitrate.

The general principles

[42] The charges levelled against the Respondent and which he was dismissed for were all related to dishonesty.

What is dishonesty?

[43] In Nedcor Bank Ltd v Frank and others[1] the Labour Appeal Court considered dishonesty and held it to mean:

‘Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.

(See Toyota SA Motors (Pty) Ltd v Radebe and others (2000) 21 ILJ 340 (LAC) at 345F-H; R v Brown 1908 TS 21; R v White 1968 (3) SA 556 (RA); Ex parte Bennett 1978 (2) SA 380 (W) at 383H-384C; S v Manqina; S v Madinda 1996 (1) SACR 258 (E) at 260e-h and The Oxford Dictionary.)

In the Canadian case of Lynch and Co v United States Fidelity and Guaranty Co [1971] 1 OR 28 (Ont SC) at 37-38, the following was said (per Fraser J):

‘"Dishonest" is normally used to describe an act where there has been some intent to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning.'

‘Certainly, insofar as the appellant or its customers are concerned, no intention to steal, cheat, lie or act fraudulently is manifest. And what of the intention to conceal the true state of affairs from the management of the airport? That is not covered by the charge’.

[44] The Court further held that dishonesty implies intention on the part of the employee and negligence cannot give rise to a charge of dishonesty.

[45] A charge of dishonesty requires proof that the employee acted with intent to deceive and a mere breach of company procedure cannot per se prove a dishonest intent.

[46] In De Beers Consolidated Mines Ltd v CCMA and others[2] the Labour Appeal Court held that facts must be proven:

‘The onus is thus on the employer to prove the facts upon which it relies for the dismissal. If the facts upon which the employer relies are not proven at the end of the arbitration proceedings, then cadit quaestio, the employer has failed to prove the fairness of the dismissal. On the other hand, if the employer does prove the facts upon which it relies, then the arbitrator must make a determination as to whether or not the dismissal is unfair and only if the arbitrator is so satisfied may he or she order reinstatement’.

[47] The point of departure should be a consideration of what specific charges were levelled against the Respondent, the onus on the Applicant to prove the facts upon which it relies for the dismissal and the evidence the Applicant adduced. In casu the Applicant had to prove the Respondent’s dishonesty.

The test on review

[48] The test that this Court must apply in deciding whether the arbitrator's decision is reviewable has been rehashed innumerable times since Sidumo and Another v Rustenburg Platinum Mines Ltd and Others;[3] as ‘whether the conclusion reached by the arbitrator was so unreasonable that no other arbitrator could have come to the same conclusion.’ The Constitutional Court very clearly held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

[49] Following the Supreme Court of Appeal judgment in Herholdt[4] and the Labour Appeal Court’s judgment in Gold Fields,[5] the Labour Appeal Court handed down another important judgment in Head of the Department of Education v Mofokeng.[6] In this judgment the Court provided the following exposition of the review test:

‘Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result.

The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination’.

[50] This dictum in Mofokeng was further interpreted and in Shoprite Checkers v CCMA and others[7] this Court considered the guidance Mofokeng provides for determining when the failure by an arbitrator to consider facts will be reviewable. The Court accepted the following mode of analysis:

a. the first enquiry is whether the facts ignored were material, which will be the case if a consideration of them would (on the probabilities) have caused the commissioner to come to a different

result;

b. if this is established, the (objectively wrong) result arrived at by the commissioner is prima facie unreasonable;

c. a second enquiry must then be embarked upon – it being whether there exists a basis in the evidence overall to displace the prima facie case of unreasonableness; and

d. if the answer to this enquiry is in the negative, then the award stands to be set aside on review on the grounds of unreasonableness[8] (and vice versa).

[51] In summary: Where it is alleged in review proceedings that an arbitrator ignored certain material facts, the enquiry is whether indeed this was the case, and if so, whether these facts were material. If it is found that they were indeed ignored as alleged, and were material, it follows that the arbitrator would have come to a different conclusion had he taken them into account, and therefore the result arrived at would prima facie be unreasonable[9].

[52] Having considered the evidence adduced at the arbitration proceedings, the findings made by the arbitrator and the grounds for review as raised by the Applicant, I cannot find that the arbitrator ignored material facts.

[53] The crux of the Applicant’s case is that the arbitrator should have found the Respondent guilty of dishonesty and in failing to find him guilty, he ignored evidence and made findings not supported by the evidence and did not understand the nature of the enquiry.

[54] I have dealt with the charges, the evidence and the arbitrator’s findings in detail supra and I do not intend to repeat that. I have considered all the grounds for review in respect of the arbitrator’s findings and my ultimate conclusion on all those is the same, namely that I cannot find that the arbitrator ignored material evidence.

[55] To illustrate my finding, for instance, the Applicant’s complaint is that the Respondent was dishonest as his travel and subsistence claims were inflated compared to the shortest distance possible as well as the routes considered by Motsoane. The Respondent knew his claims were false, thus had the intention to defraud or deceive, and his dishonesty is proven by objective facts such as that he was required to keep a log book of actual distances travelled and to claim on that basis, yet he based his claims on his diary and kilometres travelled when he refuelled his car.

[56] The evidence before the arbitrator was that Motsoane conceded that it is possible to claim more kilometres than what is provided for in the policy, but such should be motivated. The Respondent explained why he travelled more kilometres, inter alia because his travelling time was during peak hours, he did not always used the shortest route as the traffic was blocked and he used alternative routes. Motsoane did not accept the Respondent’s explanation as the Respondent was unable to explain how many kilometres he travelled on the alternative routes and on what dates. The Respondent was however only asked in July 2012 to explain kilometres he travelled on certain dates as far back as 2009.

[57] Motsoane further testified that the kilometres claimed by the Respondent were more than the kilometres he got when he calculated the distance on Google maps, but in the same breath the Respondent sometimes under claimed based on the Google maps calculation of the distances. Motsoane did not do the same exercise with Google maps in respect of the alternative routes the Respondent claimed to have used to go to the airport as a result of which Motsoane would not have been in a position to know that the Respondent indeed over claimed as he had no idea of what the variances on the different routes might be.

[58] Based on the evidence before him, the arbitrator found that the policy does not define the terms ‘expenses must be reasonable and within acceptable limits’ or how much deviation from a ‘standard distance’ might be considered as one that would ‘vary significantly’. Approval of claims was within the manager’s discretion and the Respondent submitted claims without the intention to deceive of gain, those were considered to be reasonable and within acceptable limits and were approved by the Respondent’s managers. It was not open for the Applicant to question this, years later without questioning the managers who approved the claims;

[59] The arbitrator further found that on the Applicant’s own version there was no proper examination done to check the reasonableness of the Respondent’s explanation for the variances and this did not constitute proof of a pattern and did not prove dishonesty.

[60] In respect of charges 1 and 2 for instance the arbitrator found that over a period of two years and three months, hundreds of business trip and tens of thousands kilometres travelled, The Applicant’s detailed investigations indicated a grand total of 16 trips that could be questioned as over claimed, (some with as little as 6 km) with a total value of R 3 872. In the same period the Respondent earned in excess of R 1 700 000. The arbitrator found it questionable that anyone could reasonably believe that the Respondent intended to defraud the Applicant out of such a small amount over such a long period of time.

[61] The arbitrator accepted that the Respondent was not infallible in the manner he kept his records and he made minor errors, but there is no proof of an intention to deceive of defraud the Applicant.

[62] He further accepted that the Respondent used the same method consistently to record his trips and where he recorded carelessly, it resulted in a mistakes such as the trip claimed for Sandton for 24 August 2009. The Respondent admitted to the mistake. The Respondent was never made aware that his approach or method of recording was wrong or unacceptable and one would expect a reasonable approach to corrective discipline. The Respondent was never afforded corrective discipline but was branded as dishonest from the start.

[63] In my view a perusal of the transcribed record shows that the Applicant was not able to prove the charge of dishonesty and failed to adduce evidence proving that the Respondent acted with intent to deceive or defraud. The courts have held that a mere breach of company procedure cannot per se prove a dishonest intent and in casu such intent was not proven, considering the evidence adduced holistically. The evidence before the arbitrator did not go far enough to prove dishonesty. At best it showed negligence or some lesser misconduct, for which the Respondent was not charged or dismissed.

[64] The onus was on the Applicant to prove that the Respondent acted dishonestly and it failed to do so. The arbitrator could, on the evidence before him, make the findings and reached conclusions as he did.

[65] I am not convinced that the arbitrator ignored material evidence or that he should have come to a different conclusion based on the evidence that was before him. The arbitrator's conclusion falls within a range of decisions that a reasonable decision maker could make.

[66] Having found that relevant facts were not ignored by the arbitrator, there is no need to proceed with the Mofokeng analysis.

[67] The award and the findings contained therein are reasonable and are not to be interfered with on review.

[68] Mr Lennox for the Respondent argued that the application should be dismissed with costs. I can see no reason to disagree.

Order

[69] In the premises I make the following order:

1. The application for review is dismissed with costs.

______________

Connie Prinsloo

Judge of the Labour Court

Appearances:

For the Applicant

: Advocate K T Mokhatla

Instructed by

: Cliffe Dekker Hofmeyer Attorneys

For the First Respondent : Advocate M A Lennox

Instructed by

: J C Burger Attorneys

[1] (2002) 23 ILJ 1243 (LAC).

[2] (2000) 21 ILJ 1051 (LAC).

[3] (2007) 28 ILJ 2405 (CC) at para 110.

[4] Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA).

[5] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others [2014] 1 BLLR 20 (LAC).

[6] [2015] 1 BLLR 50 (LAC), para 33.

[7] (2015) 36 ILJ 2908 (LC).

[8] The test for reasonableness was set as follows in Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007] 12 BLLR 1097 (CC) at para 110:“Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”

[9] Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC). See also Shoprite Checkers v CCMA and others (at paragraph [10] where it was held that; “The shorthand for all of this is the following: where a commissioner misdirects him or herself by ignoring material facts, the award will be reviewable if the distorting effect of this misdirection was to render the result of the award unreasonable”