Bidvest Protea Coin (Pty) Ltd v SATAWU and Others (JR1716/22) [2024] ZALCJHB 217 (27 May 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1716/22

In the matter between:

BIDVEST PROTEA COIN (PTY) LTD Applicant

and

SATAWU

First Respondent

BEN MOKGANYA

Second Respondent

MPHO CHUENE MOLELE NO

Third Respondent

CCMA

Fourth Respondent

Heard: 14 May 2024

Delivered: 27 May 2024 (This judgment was handed down electronically by emailing a copy to the parties. 27 May 2024 is deemed to be the date of delivery of this judgment).

Summary: Review of an arbitration award on the general grounds that the award is not one that a reasonable Commissioner would reach on the evidence, that the commissioner committed gross irregularities and grossly misconducted himself in the exercise of his duties.

JUDGMENT

GANDIDZE, AJ

Introduction

[1] This is an unopposed application by Bidvest Protea Coin (Pty) Ltd (the applicant) to review and set aside an award issued under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA) in case reference number LP3064-22. In the award, the commissioner upheld an unfair dismissal claim brought by the second respondent, Ben Mokganya (Mokganya), who was assisted by the first respondent, SATAWU, his trade union. The dismissal was found to have been procedurally fair but substantively unfair, and the commissioner ordered that Mokganya be re-instated with full back pay.

Background facts and the charges

[2] Mokganya was employed by the applicant as an Area Manager, and he was dismissed after he was found guilty of three of the five charges that he faced, to wit:

“Charge 1

Gross insubordination. Disobedience or Insolence: On the 27.11.2021 at 02h00 hours was an armed robbery at RCL Bochum and after investigations on the 18.01.2022 It was discovered that you deployed an officer without Competency to operate on site and R145,000 was stolen.

Charge 2

Dereliction Of Duties.: We were made aware on the 18.01.2022 at 09h30 by Payroll that one of your officers was out for two weeks and no report was given, during investigation was established that he tested positive for COVID-19, and You were made aware as you replaced him, But HR National GB was never informed.

Charge 5

Deliberate disregard of safety rules and procedures: On the 16.01.2022 You deployed an Officer SC Mkondo Co number: 9974 777 (iIlegibly medical Unfit for Duty) at STD Bank, Phalaborwa after he was out of action for over 8 months.”

[3] The disciplinary process took the form of Mokganya making written representations in response to the charges. This was done in accordance with the applicant’s Correction and Termination of Employee’s Policy. As l recorded above, Mokganya’s

challenge to the fairness of the procedure followed failed. As there is no cross review against that finding, it stands.

[4] The incidents that gave rise to the charges and the evidence led in respect of each charge will be set when the grounds for review are analysed.

Background facts and the applicable legal principles

[5] The award is sought to be reviewed on the general grounds that the award is not one that a reasonable Commissioner would reach on the evidence, that the commissioner committed gross irregularities and grossly misconducted himself in the exercise of his duties.

[6] In summary, charge 1 arose from an incident where an armed robbery occurred at a client’s site, in circumstances where the security guard on duty, one Fudheni Vaino (Vaino) did not have a firearm, and in circumstances where it was common cause that the site was an armed site. Mokganya, as the Area Manager, posted the security guard in question. It is the applicant’s case on

review that the commissioner failed to pronounce on Mokganya’s guilt and that the only reasonable finding had to be that Mokganya was guilty given the common cause facts that a robbery occurred, that the client lost money and that Vaino was unarmed when the robbery occurred.

[7] Charge 2 relates to Mokganya’s failure to inform HR or the National GB that a security guard under his control, one Noko Mokgokong (Mokgokong), tested positive for COVID-19 in December 2021. According to the applicant, it only found out about the COVID-19 case of Mokgokong in January 2022, and that therefore, there had been under reporting to COVID-19 cases in December 2021 due to Mokganya’s conduct.

[8] The third charge against Mokganya arose from his decision to post an allegedly unfit officer who had been on sick leave for eight months without first obtaining a medical certificate certifying the security guard fit to resume his duties. According to the charge, this was a disregard of the employer’s safety rules and procedures.

[9] The commissioner found that Mokganya had not committed misconduct as alleged and ordered his re-instatement. It is the applicant’s case that even if the commissioner had concluded that Mokganya’s dismissal was substantively unfair, he could not re-instate an employee who was on final written warnings.

[10] Before setting out and analysing the grounds for review, it is necessary to briefly set out the trite principles applicable in review applications of this nature.

[11] It is now established law that an award can be interfered with on review if it is one that no reasonable decision maker would have arrived at. It is also trite that the reasonableness or otherwise of an award is considered on the totality of the evidence, and not on a fragmented piecemeal analysis.

[12] In Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others[1] (Fidelity Cash), the court stated that the test for determining whether an award is a reasonable one is a stringent test that ensures that awards are not lightly interfered with.

[13] In Phalaborwa Mining Company Limited v Cheetam and Others[2] (Cheetam), the court found that this court must defer to the decision of the commissioner and that it should interfere with awards only in very limited circumstances.

[14] Makuleni v Standard Bank of SA (Pty) Ltd and others[3] restated the review test that a reviewing court must review and set aside an award only if the conclusions reached are untenable and that the court must not interfere with an award simply because the result could be different based on some lucid argument presented. The result of an award has to be so egregious that no reasonable person could reach such a result.

[15] It is against these principles that the applicant’s grounds for review will be assessed.

Grounds for review

No finding on charge 1 and the employee is guilty

[16] Mokganya was charged with posting a security guard without competency to operate a site. According to the applicant, it was this conduct by Mokganya which resulted in the client losing R145 000 during an armed robbery. The applicant paid the client R87 000 because of this loss.

[17] Vaino, the security guard referred to in the charge testified for the employer. In response to a question by the applicant’s

representative during the arbitration proceedings on whether he was competent to carry a firearm, Vaino testified that he was competent

to carry a firearm but that to have the firearm on his person, he needed to be issued with a Regulation 21 certificate after undergoing

shooting training and that he did not have that certificate yet. When the applicant’s representative, Manamela, requested Vaino to relate how the robbery incident occurred, the commissioner interjected and informed the parties that the issue was whether Vaino was competent to be on site that day (and therefore the details of the robbery were irrelevant).

[18] During the cross examination of Vaino he was asked whether it was a requirement for the security guard on site to have both a competency certificate and a Regulation 27 certificate, to which he responded that as far as he knew, only the competency certificate was required. On why he had been posted without a Regulation 21 certificate, Vaino testified that he needed money, and he was informed that he would be sent for Regulation 21 certification. When put to Vaino that he was posted to work on the site because he had the competency to guard the site, Vaino agreed.

[19] Later on when Manamela informed the commissioner about the witnesses still to be called, the commissioner informed him that he did not want to run around in circles and on this specific charge he required a witness who would say ‘the person who is competent but was not regulated is not competent’ to operate a site.

[20] The Branch Manager, Mr Benford Thobejane (Thobejane) was called, and he testified about the ‘first incident at RCL where he [Mokganya] used someone who was also not competent.’ When the commissioner inquired whether the security guard was ‘an incompetent officer,’ Thobejane responded that ‘Because that officer that was working there was supposed to carry the firearm. So he was competent but he does not have a Regulation 21. As per law you cannot have that kind of a person carry a firearm.’

[21] In cross examination Thobejane testified that ‘it is not necessarily that he was incompetent. He was working with a Section 21 that he did not complete’.

[22] When it was his turn to testify, Mokganya was reminded that the employer’s case was that Vaino had the competency certificate but not the Regulation 21 certificate and the question was why he had posted Vaino. Mokganya responded that he posted Vaino because he had a competency certificate, and the Regulation 21 certificate was to be arranged.

[23] In cross examination Thobejane sought to ask Mokganya questions whether Vaino was in possession of a firearm when the robbery occurred, and the commissioner interjected stating that ‘the issue of the firearm is out of the question’, to which Thobejane responded that it was the posting of Vaino without a firearm which led to the client losing R145 000 and the applicant having to pay the client R87 000.

[24] In the award the commissioner records that the charge relates to Mokganya deploying a guard without competency to guard the site which resulted in an armed robbery. The commissioner found that Vaino’s evidence that he could handle the site as he had worked there before and was familiar with the website was not disputed. The commissioner regarded the robbery incident as unfortunate.

[25] In my view and given that the charge against Mokganya was that he posted an officer who was not competent which resulted in the robbery, the commissioner’s findings cannot be said to be unreasonable. The commissioner found that not having a firearm was not the issue and this has to be correct if one has regard to the charge. The issue was whether Vaino was competent to operate on the site and all the witnesses, including the applicant’s own witnesses confirmed that Vaino was competent to operate the site.

[26] The other uncontentious considerations in support of the commissioner’s finding were that the client specifically requested that Vaino replaces the security guard who had been removed from the site given Vaino’s familiarity with the site. There was also evidence, though contested, that there was a shortage of officials and that Mokgang had discussed posting Vaino with a depot controller for the reasons that he explained.[4] Taking all of the above into account, the commissioner’s finding that the robbery incident was unfortunate cannot be said to be a finding that is unreasonable. The test on review is a stringent one. Different reasonable commissioners can arrive at different

conclusions and the commissioner’s finding falls within a range of what a reasonable commissioner could find, even if other

reasonable commissioners may disagree.

[27] The commissioner is also criticised for failing to make a finding on Mokganya’s guilt or otherwise on this charge. While it is correct that the award does not expressly record that Mokganya is found guilty of the charge and that this would have been ideal, it is evident from the reasoning of the commissioner that he found that Mokganya had not committed misconduct as alleged. No one reading the award is left in doubt as to whether Mokganya had been found guilty or exonerated of the charge. I must also add that the commissioner adopted the same approach in respect of the other two charges (discussed below) in that he does not make an explicit finding of not guilty, but he finds that Mokganya had done nothing wrong. This was the basis for the finding that the dismissal was substantively unfair. Therefore, the absence of an explicit finding that Mokganya was not guilty is not a basis to review the award. This review ground must fail.

(a) Dereliction of duty by not reporting a COVID-19 case

[28] A security guard, Mokgokong, tested COVID-19 positive in December 2021. The applicant’s case was that it was only in January 2022 that Mokgokong’s COVID-19 case was brought to its attention. As Mokgokong’s Area Manager, it is said that Mokganya ought but failed to report this COVID-19 case to the applicant, with the consequence that during the period in question COVID-19 cases were under-reported.

[29] Mokgokong testified for the employer. He stated that after testing positive for COVID-19 in December 2021, he reported the matter to Mokganya, his supervisor, as well as to a Controller. He further testified that Mokganya advised him to isolate and not return to work until he tests again, and the result is negative. It is common cause that Mokgokong was not challenged on this version.

[30] On why he reported the news of his COVID-19 status to the Controller as well, Mokgokong stated that ‘it was the best’. He also testified that his employer knew of his COVID-19 case given that he reported it to both the Controller and the Area Manager.

[31] Based on that evidence, the commissioner commented that Mokgokong’s evidence did not help the proceedings as he did not ‘implicate the Applicant [Mokgang][5].’

[32] In his defence Mokganya testified that in December 2021 he overheard a Controller talking on the phone about a security guard in Burgersfort who was sick, and he instructed the Controller to arrange a reliever. It was only in January 2022 when he visited the FNB Burgersfort branch that he was made aware of a COVID-19 case in December 2021. He denied that Mokgokong telephoned him to report his COVID-19 positive results, and that when he learnt about Mokgokong’s case, he remained in contact with him, advised him to isolate and to only return to work if he tested negative for COVID-19. Mokgokong also informed him that he sent his medical certificates to the Controller. It is common cause that this version was not put to Mokgokong.

[33] On what he would have done if he had become aware of Mokgokong’s case in December 2021, Mokgang testified that he would have prevented him from coming to work, advise him to isolate and to submit the COVID-19 documents.

[34] Based on the evidence, the commissioner found that Mokgokong reported his COVID-19 status to a Controller and Mokganya, that during this period employers adjusted their policies to accommodate the regulations and that the employer did not have a policy on reporting COVID-19 cases. The commissioner commended Mokganya for the advice he gave Mokgokong to isolate and save lives.

[35] The applicant takes issue with the commissioner’s finding that it did not have policies regarding the reporting of COVID-19 incidents. If the applicant had such a policy, it was not produced during the arbitration proceedings. But more importantly, that the COVID case had also been reported to the Controller is the reason the commissioner commented that Mokganya had not been implicated by Mokgokong’s evidence, bearing in mind that the employer’s case was that it was not aware of Mokgokong’s COVID-19 case until January 2022. Mokgokong himself testified that the applicant was aware of his case because he reported it to two separate people. Viewed in that context, Mokganya’s failure to rebut Mokgokong’s version made no difference for purposes of determining whether Mokganya was to blame for the fact that the applicant only became aware of Mokgokong’s COVID-19 case in

January 2022.

[36] The applicant’s submission that Mokganya did not allege that he was unaware of the rule to report COVID-19 cases does not assist its case. When Mokganya was asked what he would have done had Mokgokong reported his COVID-19 case to him, he responded that he would have told him to isolate and not return to work. He did not testify that he would have reported the case, which was the applicant’s case against him.

[37] It cannot be said that the commissioner’s finding that Mokganya was not guilty of the charge is a finding that no reasonable decision maker could reach on the facts before him, bearing in mind that the applicant’s issue was that it was not aware of Mokgokong’s case until January 2022. This ground for review must also fail.

(b) Disregard of safety rules and procedures by posting a medically unfit security guard

[38] The charge relates to the posting of an allegedly unfit security guard, Skumbuso Mkhontho (Mkhonto), at a Standard Bank branch in Phalaborwa but it appears from the transcript that parties understood that the charge related to the posting of a security guard at FNB Phalaborwa and not at Standard Bank Phalaborwa.

[39] Mkhonto testified that he was employed as a Supervisor. In July 2021 he was involved in a car accident, and he was on sick leave until around mid-January 2022, when he contacted Mokganya and explained that he needed to return to work so that he could earn an income. He proposed to Mokganya that he be rostered at FNB Phalaborwa. He was posted to this site on a Sunday and the branch was closed and therefore ‘cannot say that the job was hard whatsoever for me.’ The posting was to try and see if he was fit to work after the accident, and on that occasion, his job was to sit and observe.

[40] At the time, Mkonto was in possession of a medical certificate to perform light duties as he could not stand for prolonged periods, even though it appears that this medical certificate was provided to Mokganya subsequent to the posting of Mkonto at the FNB Phalaborwa branch.

[41] Suzan Rammutla (Rammutla), a Roster Clerk testified that an employee who had been hospitalised is required to submit forms completed by a doctor recording that the employee is fit to return to work and Mkhonto was supposed to submit this form before he could be rostered. As a Roster Clerk she is not permitted to roster an employee in the absence of these forms. Mkhonto’s case was the first time that an employee had been rostered without submitting a medical certificate.

[42] Under cross examination it was put to Rammutla that when she contacted Mokganya querying why he had rostered Mkhonto without medical reports, Mokganya informed him that he was not aware of this requirement given his experience with his own accident in 2009, Rammutla responded that she started with the applicant in 2015 and since then, they had followed the same procedure even for employees going on maternity leave.

[43] Rammutla agreed that Mokganya apologised after she informed him that medical certificates were required before posting a security guard and that Mokganya did not post Mkhonto again after that. She also agreed that Mkhonto was not paid for 16 January 2022.

[44] Idah Dlamini (Dlamini), an Administrative Manager since September 2021, also testified. She confirmed Rammutla’s evidence that employees must submit medical certificates before they are allowed to resume duties. On whether Mokganya had verified with the office before posting Mkhonto, Dlamini responded thus:

‘MS DLAMINI: The area manager did verify actually. He sent me a WhatsApp after posting Mr Mkhonto. When we were start questioning him, asking him why Mr Mkhonto is working because we are not aware that Mr Mkhonto was back to work as HR. Then he sent me a WhatsApp with a sick note stating that Mr Mkhonto was supposed to be given light duties. I told him that he needs to send a formal e-mail to the Branch Manager and cc me as well and then we will take it from there. That was the only communication that I received from the area manager.’

[45] Under cross examination Dlamini was asked whether Mokganya was aware of the procedure that a medical certificate is submitted before rostering a security guard. She responded thus:

‘MS DLAMINI: I do not think he was not aware. I think he was aware. Because you know that when an officer is not at work …when

they come to work then you have to sign it leave form, that is saying that they are back to work. And then you have to provide… and give us the proper documentation to support that the employee was not at work because they were not feeling well. They were sick.

And then when we have those documents, he was aware that…. Because before sending me a WhatsApp about the sick note, he phoned me before and then he told me that the officer is back at work. I think they placed him in Standard Bank or something like that. And then I asked him if he is fit for work now. That is when he sent me the sick note stating that he is supposed to be on light duties. I told him that you need to send a formal e-mail before the employee can go back to work. But he decided to continue posting the officer. So he was aware that he needs to come and submit the document. The office needs to give him an authorisation saying that the officer can go back to work.’

[46] When it was put to Dlamini that in 2009 Mokganya had returned to work after an accident without having to submit a medical certificate, Dlamini responded that Mokganya’s case was different in that he was not declared unfit, that he was not on crutches and that he was not absent from work for more than three months.

[47] Expanding on her telephonic discussion with Mokganya, Dlamini testified that Mokganya sent her a WhatsApp asking for assistance with Mkhonto’s situation and for guidance on what to do. According to Dlamini this proves that Mokganya knew he needed to follow procedures which he did not do before posting Mkhonto.

[48] The commissioner sought clarity from Dlamini on whether it was an ‘umbrella policy’ to submit medical reports before resuming duties after an accident and how Mokganya’s case in 2009 was different from Mkhonto’s case. Dlamini gave this response:

‘MS DLAMINI: I will not say that it is different as in like different, but what I can say is that I believe… I was not here when Mokganya was in an accident, so actually I cannot dwell on that much. Because I did not know or I was not aware of the kind of injuries that he had. But I believe that he was not absent from work for more than three months. So surely their cases were not the same. They were not similar. Because Mkontho was absent from work for more than three months. So his case had to be worse than Mr Mokganya’s case.’

[49] Mr Benford Thobejane, the Branch Manager since October 2021 also testified. He was asked to comment on Mkhotho’s version that he was not aware of the requirement to obtain medical reports before posting an officer and he responded that the fact that he was new in his position did not affect his knowledge of the processes. He went further and testified that:

‘What I did I called them all in. We went through all the processes. I told them what I want, what is expected by the company and that is what we are going to do. So by that time I can say I was well aware. That is why l also had that thing to say he was wrong to do that. According to the law.’

[50] Mokganya testified that Mkhotho telephoned requesting to return to work as he was struggling financially. Addressing the charge that he failed to obtain the relevant medical documents from Mkhonto before he allowed him to return to work, Mokganya testified that he had an accident in 2009 and was hospitalized for four weeks. Unable to survive financially without working, he requested the Branch Manager at the time, Jana Van der Merwe if he could return to work and the request was acceded to. He returned to work on one crutch, and he was not required to submit any medical documentation to prove that he was fit to work. Therefore, he was not aware of the rule that employees are required to submit medical documentation before they can be allowed to return to work.

[51] Mokganya further testified that it was after Mkhonto had worked the previous day without any problems, that it was brought to his attention that Mkhonto was required to submit medical reports before he can resume duties. Mokganya informed Mkhonto that he could no longer roster him until he produces the medical certificate.

[52] Mokganya testified that he did not challenge the administrators when they informed him about the requirement to produce the medical certificate because they were giving him instructions, and he thought they were best placed to know the rules since they are sent for training, whereas she was not sent for any training on procedures.

[53] The commissioner commented that there were two mutually destructive versions on whether Mokganya was aware of the requirement to submit medical reports before being rostered to work and that he would decide which version was correct.

[54] In finding no fault on the part of Mokganya, the commissioner reasoned that the fact that Mkhonto, a supervisor of six years requested to be posted without providing a medical certificate points to the non-existence of a rule, and it had not been suggested that Mkhonto and Mokganya colluded to ensure Mkhonto is posted against the rules. Another consideration was Mokganya’s undisputed evidence about his experience in 2019 that he returned to work without having to provide a medical certificate. That Mkhonto had not been paid for the day he was posted meant that the applicant had not been prejudiced. The commissioner concluded by stating that the rule or policy relied upon was never presented in evidence.

[55] On review, the applicant submits that sufficient evidence proving Mokganya’s guilt on the charge was submitted and ignored by the commissioner. This submission lacks merit. All three witnesses called on behalf of the applicant did not present any reliable evidence about the existence of the rule that medical certificates needed to be submitted, other than their say so. Dlamini’s evidence that the rule applied to some cases and not others did not help the applicant’s case. Thobejane’s evidence that he had explained the processes to ‘all’ was vague and could not be interpreted to mean that the rule as alleged by the applicant was in existence and that Mokganya was made aware of it.

[56] Furthermore, the three witnesses called could not deny Mkhonto’s 2009 experience as all of them were employed after 2015. Dlamini’s attempts to distinguish Mokganya’s 2009 experience from Mkhotho’s situation only served to prove that there was no ‘umbrella’ rule, the terminology employed by the commissioner during the proceedings. The commissioner’s finding that there was no rule or evidence that Mkhonto was aware of the alleged rule cannot be faulted. That finding falls within a range of reasonable outcomes and should not be interfered with on review.

(c) Re-instatement was inappropriate

[57] The applicant submitted that even if the commissioner found that Mokganya’s dismissal was substantively unfair, he ought not to have re-instated him given the litany of final written warnings against Mokganya, coupled with a lack of remorse on his part. This submission ignores the fact that the conclusion of the commissioner was that Mokganya had not committed misconduct as alleged. That finding was sufficient for a re-instatement order to be granted, unless one of the situations set out in section 193(2) of the Labour Relations Act[6] (LRA) were applicable. None of those situations applied. The litany of warnings referred to in argument by Ms Lancaster, and which form part of the review record were not discussed at all during the arbitration proceedings, other than a passing reference by Thobejane to a warning issued to Mokganya for posting a security officer with a criminal record. Even if these warnings had been referred to during the arbitration proceedings, the commissioner could not ignore his own findings that Mokganya was not guilty of the three charges he faced and decide a sanction based on previous warnings. Similarly, once the commissioner found Mokganya not guilty of all the charges, a lack of remorse was an irrelevant consideration.

[58] This ground of review must also fail.

[59] In the premises, the following order is made:

Order

1. The review application is dismissed.

T. Gandidze

Acting Judge of the Labour Court of South Africa

Appearance:

For the Applicant: Ms S Lancaster

Instructed by: Lancaster Kungoane Attorneys

[1] (2008) 29 ILJ 964 (LAC) at para 95.

[2] (2008) 29 ILJ 306 (LAC) at paras 4 -5.

[3] (2023) 44 ILJ 1005 (LAC) at para 4 and 13.

[4] Mokgang’s written response to the charges.

[5] The transcript incorrectly records the employee’s name as Mokgang.

[6] No. 66 of 1995, as amended.