Mosiapoa v South African Local Government Bargaining Council and Others (JR2868/17) [2021] ZALCJHB 310; (2022) 43 ILJ 387 (LC) (9 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: JR2868/17

In the matter between:

WALTER MODISE MOSIAPOA Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT First

Respondent

BARGAINING COUNCIL

PIETERSEN, N. O Second Respondent

JOHN TAOLO GAETSEWE DISTRICT Third

Respondent

MUNICIPALITY

Date heard: 09 September 2021

Date delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on September 2021.

Summary:

JUDGMENT

BALOYI, AJ

Introduction

[1] The second respondent’s arbitration award is the subject matter of this application. In terms of the very arbitration award he found the dismissal of the applicant to be both procedurally and substantively unfair. The applicant is seeking its review and set aside on grounds set out in his founding and supplementary affidavits. The third respondent is opposing the application. The opposition is however accompanied by the application for condonation of the late filing of the answering affidavit.

Background

[2] The applicant and the third respondent entered into an employment relationship on 02 January 2013 in which the third respondent appointed the applicant as an accountant. His duties amongst others entailed performing verification and inspection of assets, insurance of assets according to the insurance policy, update of the insurance company with new assets and disposals, drawing of bank statements and allocation of payments received on the bank statement.

[3] In 2013 a laptop computer belonging to the Municipality that was allocated to the applicant was reported stolen. An insurance claim was lodged with the third respondent’s asset insurer and same was settled. In 15 July 2015 another laptop allocated to the applicant was lost whilst in his custody. Instead of pursuing the claim against the insurance, the third respondent opted to institute disciplinary proceedings against the applicant for the loss of the laptop in question. According to the third respondent, this approach was taken in order to protect its reputation. It had no intention to lodge an insurance claim but to recover the loss from the applicant as a person responsible for the loss. The charges against the applicant were crafted as follows:

“Gross insubordination, for allegedly failing to perform his duties diligently, carefully and to the best of his ability in relation to asset management and control;

Gross dishonesty, for allegedly failing to conduct himself with honesty and integrity for ‘claiming’ that his laptop was stolen; and

Gross negligence, for allegedly failing to secure the safety of the laptop”

[4] The applicant was at the end of the hearing found guilty and a sanction of repayment of R14 000-00 through a deduction from his remuneration coupled with 7 days suspension without pay was imposed.

[5] The outcome of the hearing was communicated to the applicant on 12 February 2016. The applicant lodged the appeal against the outcome on 18 February 2016 On 11 March 2016 the applicant had a meeting with the Municipal Manager wherein it was confirmed that the value of the loss of the laptop was to be recovered from him in the sum of R14 000.00, not from the insurance. This was followed by the Municipal Manager’s letter addressed to the applicant with the following content:

“Dear Mr Mosiapoa

RE: FINDING OF DISCIPLINARY HEARING

We refer to the above matter specifically the disciplinary hearing that was instituted against you on the 13th of January 2016 wherein you were found guilty on two of the three charges levelled against you.

The sanction pronounced on you was:

· That the employer be reimbursed for the loss of the laptop to the value of R14 000.00 with immediate effect; and

· That the employee be suspended from work without pay for a period of seven (7) working days spread also over a period of three (3) months.

Kindly be informed that you have failed to lodge an appeal and the time for doing so having lapsed the sanction of the disciplinary hearing will now be applied as follows:

· The amount of R14 000.00 (fourteen thousand rand) will be deducted from your March salary, and

· Your suspension without pay will be staggered as follows:

· From the 5th to the 7th of April 2016;

· From the 17th to the 18th of May; and

· From the 21st to the 22nd of June.

Yours faithfully,

p.p Signature by

________________________

MP BOKGWATHILE (MRS)

MUNICIPAL MANAGER”

[6] After the said meeting the applicant decided to lodge a claim with the insurer. This was contrary to the third respondent’s decision that he was responsible for reimbursing the Municipality.

[7] The third respondent for some unexplained reasons ended up deducting a total of R23 588.07 from the applicant’s remuneration. The unfair labour practice dispute over this deduction ended up at the Labour Court, Cape Town and was finalized by way of settlement agreement entered into between the applicant and the third respondent on 30 July 2018, in terms of which the third respondent agreed to repay the applicant R23 588.07.

[8] The third respondent viewed the applicant’s lodging of an insurance claim as an act of defiance on the part of the applicant in light of its clear intentions to recover the losses from him. The disciplinary action was as result instituted against the applicant. The charges were preferred as follows against him:

“Charge 1”: Dishonesty – in that on or about 11 March 2016, he fraudulently and intentionally submitted a claim to the municipality’s

insurers for a laptop that he lost whilst he was fully aware that it was not supposed to be claimed.

“Charge 2: Violation of clause 1.2.3 of the Disciplinary Code and Procedures, in that on or about 11th of March 2016, he failed to act in the best interest of the municipality and therefore compromise the incredibility and integrity of the municipality in that he knowingly claimed a laptop that he lost whilst he was fully aware that it was not supposed to be claimed.

Charge 3: Violation of clause 1.2.3 of the Disciplinary Code and Procedures, in that on or about 9th of September 2016, he used his position to obtain confidential information, being the bank statement of the municipality, whilst he was not authorised to do so, for private gain or purposes.

Charge 4: Violation of clause 1.2.12 of the Disciplinary Code and Procedures, in that on or about 9th of September 2016, knowingly disclosed privileged and confidential information, being the bank statement of the municipality, without permission to the third parties.”

[9] It is the outcome of this disciplinary hearing that resulted in the applicant’s dismissal. It was postponed six times prior to its commencement. Four of such, postponements were effected out of the applicant’s requests, either due to ill health or the unavailability of his representative. The other two postponements were at the instances of the third respondent. It is not in dispute that the applicant was informed of the seventh sitting scheduled for 30 May 2017. The applicant undertook to revert to the third respondent in order to confirm his representative’s availability. When the matter sat on 30 May 2017 the applicant had not communicated anything to the third respondent nor indicated that he would not make it to the hearing. The disciplinary chairperson directed that the matter should proceed in the applicant’s absence. At the end of the hearing a guilty verdict was handed down.

[10] The applicant was invited to submit mitigating factors to the chairperson of the hearing. Instead of submitting such mitigating factors, he attempted to submit an appeal to the very chairperson. This was met with the chairperson’s refusal to accept it and advised the applicant to rather address the appeal in question to the Municipal Manager. A sanction of dismissal was subsequently handed down and the applicant referred an unfair dismissal dispute to the first respondent. The dispute ultimately came before the second respondent who was an appointed arbitrator.

The arbitration proceedings

[11] The applicant challenged the dismissal on both substantive and procedural aspects. The third respondent called three witnesses, namely: Mrs Astrid Louw, (Disciplinary Hearing Initiator), Mr JD Rossouw (The Disciplinary Hearing Chairperson), Ms Sheroma French-Sulliman (Manager: Revenue and Assets). The applicant did not to testify, he opted to call a shopsteward, Mr Jeffrey Booysen, as the only witness for his case

[12] Ms French-Sulliman specifically testified in relation to the merits of the case that following the outcome of the first disciplinary hearing, a sanction directing the applicant to re-imburse the third respondent for the lost laptop was imposed on the applicant. Thereafter the Municipal Manager issued an instruction that the insurance claim must not be submitted for the laptop in question. The applicant knew this from February 2016. At that time, she was the Acting Chief Financial Officer and was the only person authorized to sign the claim. On 26 June 2016 she signed an “Agreement of loss - Non Motor” form from the insurance reflecting the amount payable to the Municipality for the Electronic Equipment – HP PRO 500 with confirmation of the Municipality banking details reflected therein. When she signed the form she was not aware that it related to a claim for a laptop that was lost by the applicant. She referred the second respondent to the Asset Management Policy stating

that the Head of Department is the authorized person to request the replacement of the lost asset to be approved by the Municipal Manager in consultation with the CFO. The claim submitted by the applicant did not meet the requirements.

[13] According to the non-disclosure agreement signed by the applicant, divulging confidential information to the third parties is prohibited. Despite this, the applicant provided the Department of Labour and South African Police Services with copies of the third respondent’s bank statements. He did this, firstly, in support of a complaint about the deduction made by the third respondent in his salaries that were in contravention of section 34 of the Basic Conditions of Employment Act 75 of 1997. Secondly, in support of a fraud case he opened against the third respondent with the police. The applicant’s conduct was viewed as abuse of his office by sourcing out the bank statement for his personal gain. When cross-examined, Ms French-Sulliman conceded that the applicant did not benefit financially from the insurance claim as the payment was made into the Municipality account.

[14] The evidence of the applicant’s witness was mainly rested on procedural aspect of the dismissal, most particularly about the hearing that was conducted in the applicant’s absence. The main issue brought to the fore was that the applicant was on that day attending a shop stewards’ meeting. There were some controversies raised with the attendance register that was produced in the arbitration proceedings. It was actually argued by the third respondent that it did not establish the applicant’s presence in that meeting. It was further brought to the second respondent’s attention that the meeting in question started at 14h00 whilst the disciplinary hearing was scheduled to proceed in the morning. According to the third respondent there was no clash of activities.

[15] In upholding the dismissal, the second respondent ruled that the third respondent has correctly found the applicant guilty on three charges. He acquitted the applicant in the charge of failure to act in the best interest of the Municipality. Based on the guilty finding on the three charges he found the dismissal to be substantively fair. Regarding procedural fairness he relied on Old Mutual Life Assurance Co SA v Gumbi[1] to conclude that deliberate absence from the disciplinary hearing does not affect the validity of the dismissal.

The review application

[16] Now before this Court, the applicant is challenging the second respondent’s award on grounds set out in section 145 of the Labour Relations Act 66 of 1995 coupled with the constitutional ground of reasonableness of the decision. The second respondent’s award is attacked on procedural aspect for his failure to apply his mind to the fact that there was nothing to prove that the applicant was notified about the hearing. Secondly that the finding that the applicant’s non-attendance was deliberate is unsustainable and unreasonable.

[17] Regarding substantive fairness, the second respondent’s decision is attacked for having applied the wrong test by holding that he was guilty rather than finding whether the dismissal was fair or otherwise. The second respondent failed to make a proper assessment of evidence to arrive at a finding that he was insubordinate and that he failed to embark on a crucial element of substantive fairness when coming to a sanction.

[18] In his supplementary papers the applicant in essence expanded on his grounds by adding that the second respondent’s finding about the instruction not to submit an insurance claim is completely disconnected from the evidence. The reason being that nothing was placed before him as to when and by whom was the instruction issued. The second respondent failed to apply his mind to the rationale behind the disclosure of the bank statements and there is no evidence that the Municipality has suffered any harm. That Ms French-Sulliman signed an agreement which led to the payment of claim and that other employees also lost their laptops was ignored by second respondent. The second respondent considered irrelevant evidence to arrive at his findings.

Condonation application

[19] The opposition is accompanied by an application for condonation of the late filing of the answering affidavit which is undisputedly 25 months late. The reason for lateness is solely based on confusion created by the existence of the other matter in the Cape Town Labour Court involving the same parties. It was discovered after some time that the attorneys who were dealing with the Cape Town matter were in fact not instructed in this matter. The departure of Ms Kgwadi who was always dealing with this matter at the Municipality caused a further setback. The third respondent’s attorneys of record were sending emails requesting consultations to her inbox not knowing that she was no longer in the employ of the Municipality.

[20] The third respondent contends that even if the delay is excessive, the Court should take into account that it has prospects of success. The applicant was fairly dismissed and such dismissal was effected in terms of fair procedures. The second respondent’s decision is thus the one which a reasonable decision maker could reach.

[21] In opposition of condonation application, the applicant laments the degree of delay and found the explanation thereof to be absurd. This is in view of the third respondent’s attorneys’ request for a 30 days indulgence for the filing of the answering affidavit. The applicant’s attorneys considered the request and granted same. There was no way that the third respondent could confuse this matter with the Cape Town application as the very Ms Kgwasi was handling both matters. The third respondent only woke up to filing the opposing papers on 05 August 2020. It was just a day before the hearing of the matter on the unopposed roll that was scheduled to proceed on 06 August 2020. The applicant is currently unemployed and is highly prejudiced by the delays.

Evaluation

[22] The law on condonation is so well established and needs no lengthy elaboration here. The parties ensured that their arguments for and against the granting of condonation dealt with all the elements to be considered for determination of condonation application. The Labour Appeal Court in Collett v CCMA[2] restated the principle developed through generations of leading cases decided on the test for condonation, the following was said at paragraphs 38 and 39:

“[38] There are overwhelming precedents in this Court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court, condonation may be refused without considering the prospects of success. In NUM v Council for Mineral Technology (1999) 3 BLLR 209 (LAC) at para 10, it was pointed out that in considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 C-D ... should be followed but: ‘There is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.’

[39] The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable explanation for the gross and flagrant disregard of the rules is without merit.”

[23] The third respondent’s explanation for the delay simply revealed no commitment to oppose the application even after having been given an extra-ordinary indulgence of 30 days. The third respondent’s submission that the applicant suffered no prejudice does not only undermine the applicant’s right to finality on the matter but also the system of administration of justice. The Courts are from time to time faced with unavoidable removal of unopposed matters from the roll occasioned by the last minute filing of opposing papers. This is exactly what happened in this matter. For unexplained reasons the third respondent caused the opposing papers to hastily find its way into the Court file. By so doing, the third respondent secured a removal of the matter from the roll.

[24] It is not for this Court to rule if there was an element of deceit on the third respondent’s part. However, it deserves mention that the respondents often run away with what is colloquially regarded as murder. In most instances the costs occasioned by such removals remain undetermined due to some other distractions which plaque matters of this nature. Without any explanation for the last minute filing of the opposing papers, I am of the view that the respondents in general should be duty bound to show cause why they should not bear the applicant’s costs following the removal of the matter from the unopposed roll. This should be so, since the Court presiding on the unopposed roll is not well positioned to deal with arguments requiring a hearing on opposed basis.

[25] In this instant matter, the applicant has not pursued a claim for wasted costs occasioned by the removal in question and there is no order reserving the costs for later determination. I am thus not in a position to deal with the costs of 06 August 2020.

[26] Having considered the submissions for and against the granting of condonation application, the cumulative effect of the above is that no case is made for the granting of the application. The condonation of the late filing of the third respondent’s answering affidavit is bound to fail. There is no reason why the third respondent should not pay the applicant’s costs for the opposition of the condonation application. The third respondent’s answering affidavit is thus not admitted to the record.

[27] Turning onto the review application, the Court is duty bound to find if the case is made for the relief sought, with or without opposition. In Fidelity Cash Management Service v CCMA & Others[3] The Labour Appeal Court when interpreting the test for review held at paragraph 98 as follows:

“It will often happen that, in assessing the reasonableness or otherwise of an arbitration award or other decision of a CCMA commissioner, the Court feels that it would have arrived at a different decision or finding to that reached by the commissioner. When that happens, the Court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the commissioner and that the system would never work if the Court would interfere with every decision or arbitration award of the CCMA simply because it, that is the Court, would have dealt with the matter differently. Obviously, this does not in any way mean that decisions or arbitration awards of the CCMA are shielded from the legitimate scrutiny of the Labour Court on review.”

[28] The above dicta to my understanding conveys nothing more than the fact that this Court’s approach to the review of the arbitration awards is delicate. The decision of the arbitrator should not be easily interfered with even in circumstances where the Court feels that had it been tasked with a duty to decide on the matter it would have done so differently. The Court may interfere only where an irregularity that is so gross to a point that a decision reached by the arbitrator is not the one which a reasonable decision maker could reach. In adopting this reasoning the Labour Court Appeal Court followed the Constitutional Court’s decision on Sidumo[4] decision with approval.

[29] On whether the arbitrator has properly understood the nature of enquiry before him, the Court is in no doubt required to look at the record of arbitration proceedings. The record in this matter is complete. Based on the applicant’s conduct from the level of disciplinary hearing, there is no version of the applicant recorded as he did not attend the hearing. When coming to the arbitration proceedings, the arbitrator was also made to deal with a case that was deficient of the applicant’s version. He did not testify, he only called a witness to deal with procedural challenge to the dismissal. The very procedural challenge was not pursued in this review application.

[30] It must be borne in mind that if an employee has not testified in rebuttal of the employer’s version, whatever the employer

places on record in the absence of the employee’s version does not automatically lead to a finding that the dismissal was fair. The employer as a party bearing the onus in terms of section 192 of the Labour Relations Act[5] has a duty to prove the fairness of the dismissal. To this end the employer relied on Asset Management Policy and the Non-Disclosure

Agreement to demonstrate that the applicant through the position he held adopted a self-help attitude. He used his position as an accountant, firstly, to lodge a claim in which he bypassed the authorized persons and completed the lodgement form on his own.

Secondly, he sourced out a bank statement to advance his own ends against the employer.

[31] In First National Bank – A division of First Bank Ltd v Language & Others[6] the Labour Appeal Court rejected a Bank Manager’s claim that he was entitled to log into the bank system and reverse a bank charge of R63.00 that he was not happy with levied against his personal banking account. The following was said at paragraph 22.

“22. By resorting to self-help, first respondent acted in a manner which was inimical to a society in which the rule of law prevails. But that is exactly what first respondent did by way of his actions. He helped himself to R 63.00 through a reversal of the charge and did so in a flagrant violation of a clearly stated prohibition.”

[32] The arguments that the applicant was justified when acting in a manner that resulted in misconduct charges remain arguments. In the absence of evidence dealing with merits to rebut the evidence of the third respondent’s version, the second respondent was not expected to put weight on statements put to the third respondent’s witnesses during cross examination and arguments raised by the applicant. He was realistically left with one uncontested and sensible version of the third respondent. In the circumstances, it cannot at this level be the duty of the review Court to hear and make a determination on whether the acts of the applicant were justifiable. The applicant’s unexplained failure to place his version before the second respondent compounded his difficulties. The second respondent can thus not be faulted for the decision made.

[33] With the valid Asset Management Policy and the Non-Disclosure Agreement in place, the applicant was just like any other employee bound by the applicable rules in the workplace. Although lodging insurance claims was part of his duties, the evidence placed before the second respondent reveal that he had no authority to lodge a claim for the laptop in question, he was not supposed to in view of the disciplinary hearing findings. Similarly, with regard to the bank statements the applicant embarked on self-help drive to achieve his own ends by virtue of the access he had in the third respondent’s system and/or concerned personnel as an account. Whether it was for a good cause is irrelevant as the third respondent has the rules in place and the applicant is bound by these rules.

[34] With regard to the issue of procedure it appears that the applicant was no longer pursuing same. For what it is worth, the grounds raised by the applicant in this respect seem to be self-inflicting and revealing on his character of wanting things to happen his way or no way. Through his own election the applicant stayed away from the disciplinary hearing. He then attempts to blame the commissioner for not buying into his feeble and incoherent excuse for non-attendance.

[35] In conclusion, I do not find any reason for the Court to interfere with the second respondent’s decision. The arbitration award safely survives the attempts to have it reviewed and set aside. His decision is without doubt the one which a reasonable decision maker could reach.

Costs

[36] This is a matter that falls within the parameters of a principle that a rule that ‘costs follow the result’ does not automatically apply in labour matters. Going further, my finding regarding condonation application for the late filing of the answering affidavit raises exceptional circumstances warranting deviation from the principle. Awarding the applicant costs remains the only way to undo the prejudice suffered by the applicant due to the poorly explained late filing of the answering affidavit. It is on this basis that the third respondent should be held liable for the applicant’s costs in so far as the condonation application is concerned.

[37] The following order is therefore made:

Order

1. The third respondent’s application for condonation of the late filing of the answering affidavit is refused.

2. The third respondent is ordered to pay the applicant’s cost incurred in opposing the condonation application up to the date of hearing of this matter.

3. The review application is dismissed.

4. There is no order as to costs for the review application.

M Baloyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Mr

M. Makhura of Cheadle Thompson & Haysom

For the third respondent: Adv. D. Mtsweni

Instructed by: Koikanyang

Attorneys

[1] [2007] 4 ALL SA SCA

[2] [2014] 6 BLLR (LAC).

[3] [2008] 3 BLLR 197 LAC.

[4] Sidumo & Another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC) at paragraph 110 where it was said: “That standard is the one explained in Bato Star: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Applying it will give effect not only to the constitutional right to fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair”

[5] (1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. (2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.

[5] (1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.

[6] (2013) 34 ILJ 3103 (LAC).