Mohane v Commission for Conciliation, Mediation and Arbitration and Others (JR1713/19) [2021] ZALCJHB 425 (15 November 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

CASE NO: JR 1713/19

In the matter between:

KABELO MARVIN JOSEPH MOHANE Applicant

and

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION First Respondent

COMMISSIONER EVA NGOBENI Second Respondent

DOUGLAS GREEN BELLINGHAM (PTY) LTD Third Respondent

Considered in chambers

Date Delivered: 15 November 2021

JUDGMENT

MANGENA AJ

[1] Mr Kabelo Marvin Joseph Mahane (applicant) was employed by the third respondent as a salesperson on 14 November 2017 until his dismissal on 15 February 2019.

[2] The dismissal followed a disciplinary hearing where he was charged with misconduct relating to the falsification of information and dishonesty in that on two occasions he reported that he was at customer’s premises when he was elsewhere. In the hearing the employer led evidence of two witnesses who testified on the training provided to the applicant on the use of the GPS system, existence of established rule regarding reporting, as well as consistency in the application of discipline in the workplace.

[3] Upon dismissal, the applicant referred an unfair dismissal dispute to the CCMA for conciliation and later arbitration. The matter was allocated to the second respondent who rendered an award on 09 June 2019. The award was dispatched to the parties on 13 July 2019. In the award the second respondent found the applicant’s dismissal to be both substantively and procedurally fair.

[4] The applicant has now approached this court to review and set aside the award and, remit the matter to the CCMA for a new hearing before another commissioner. The review application was lodged four (4) weeks out of time and there is a condonation application accompanying it. In the condonation application applicant explains that upon receipt of the award he consulted with attorneys who wanted to be paid before they could help him until one of them referred him to the legal aid. He experienced considerable difficulties including being arrested from 17 July 2019 until 31 July 2019 when he was released on bail. He went to the labour court on 07 August 2019 where he was given the documents to complete and unaware of the ticking clock, he only served the documents at the respondent on 27 August 2019.

[5] The application is opposed by the third respondent who has also filed an answering affidavit in opposition to the condonation application. The principles on condonation are trite and well established. A party seeking condonation need to give full and satisfactory explanation for the delay. The applicant has in my view satisfied this requirement and the delay of four (4) weeks is not excessive when regard is had to the fact that he was without legal representation. Without much ado, condonation for late filing of review is granted.

[6] The ground upon which the applicant relies to upset the award are that the arbitrator failed in the performance of her duties in that she did not assist him to secure witnesses he wanted to call to the hearing to support his version. He further avers that the arbitrator was biased against him and in support of this averment he states that he was not given an opportunity to go through a report on the laptop.

[7] The test for review is reasonableness. In Herholdt v Nedbank Ltd[1], the court explained it as follows: -

“[25] In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.”

[8] I have considered the record with a view to establish the basis of the complaints being made against the commissioner and to determine their overall effect on the outcome she arrived at. My reading of the record reveals that the commissioner was even-handed in the management of the proceedings. She asked the applicant to give the names of the people he alleged were not being disciplined by the employer. Instead of giving the names, the applicant requested to get a report and mentioned that the whole sales team was doing what he is accused of and none was charged. Surely that was not a good answer and the commissioner was well within her powers to refuse to allow him to request for the document. In this regard the record shows the following: -

Commissioner: Okay. Applicant, do you want to shed some light on when reference is made to inconsistency, who are the people you are referring to? Who are your colleagues that you are saying did the same conduct and the employer just shrugged their shoulder and said; ‘Do nothing about it’?

Applicant: Okay. Commissioner, since … I was saying that I would like the

company to produce this report on C52, yes, so that I can be able to demonstrate that when the company says they get a report that so and so was at a particular outlet, meanwhile they were not there, because hence the whole factor of the whole investigation from the Manager was that he gets a report which tells him that so and so was not at a particular outlet, so hence I would like the company to produce this document or me, I will go and ask for the …

Commissioner: But by now you should be having names of people who you believe were treated fairly compared to yourself.

Applicant:

No I would refer to the whole team. I will refer to the whole sales team. I would refer to the whole sales team.

Commissioner: But that can’t be correct. That can’t be correct.

Applicant:

What can’t be correct, Madam?

Commissioner: To say “the whole team”.

Applicant: Why would it not be…

Commissioner: It is more like saying “All commissioners”.

Applicant: So commissioner, are you going to give me a chance to and request this document-

Commissioner: No I don’t … we have dealt with the document. The document issue, he said he is going to go, out consult, Mr Gavin and he will tell us how soon we will have the document.

[9] The above extract demonstrates the point that there is no substance in the allegation of biasness on the part of the commissioner.

[10] Having read the record, I am unable to agree with the applicant that the commissioner committed any reviewable irregularity in the performance of her duties. On the evidence presented to her the applicant had committed a misconduct serious enough to warrant dismissal. The third respondent proved that other employees who were previously found guilty of a similar offence were dismissed. The applicant has therefore failed to prove inconsistency in the application of discipline in the company.

[11] Owing to the seriousness of the misconduct, the arbitrator took into account that the applicant showed no remorse and was defensive. She notes with concern” the applicant’s failure to take responsibility for his action and concluded that the cannot be rehabilitated. She found that the applicant lacked an integral part of an employment relationship: honestly and therefore dismissal is under the circumstances an appropriate sanction.

[12] In G4S Secure Solutions SA (Pty) Ltd v Ruggiero NO and Others[2],the court held as follows: -

“[26] The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is “a sensible operational response to risk management”.

[13] On the authority of the above judgment and many others, the award falls within the band of reasonableness and this court is not at large to interfere with it.

[14] Consequently the review falls to be dismissed with no order as to costs. The cost order is guided by the governing principle that in labour law costs do not follow suit.

[15] Order

1. The application for the review of the award issued by the second respondent in case number GATW 2418-19 is dismissed.

2. There is no order as to costs.

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: LMK

Attorneys

For the 3rd Respondent: Service and Manufacturing Industrial Employers’ Organisation (SMIEO)

[1] (2013 34 ILJ 2795 (SCA) para 25

[2] (2017) 38 ILJ 881 (LAC)