Mosikele v Mass Cash (Pty) Ltd t/a Qwaqwa Cash & Carry and Others (JR1045/2011) [2014] ZALCJHB 325 (27 August 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR1045/2011

BENJAMIN LEHLOHONOLO MOSIKELE Applicant

and

MASS CASH (PTY) LTD t/a QWAQWA CASH & CARRY First

Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION Second

Respondent

COMMISSIONER NQOBILE KENNETH DUBE Third

Respondent

Heard: 11 November 2013

Delivered: 27 August 2014

TLHOTLHALEMAJE, AJ

Introduction:

[1] This is an application in terms of section 145 (2) of the Labour Relations Act (The LRA). The Applicant seeks to review and set aside the arbitration award issued by the Third Respondent (Commissioner) under case number FS7520-10 on 9 May 2011. In his award, the Commissioner found that the dismissal of the Applicant was procedurally and substantively fair. The application is opposed.

Background to the application:

[2] The Applicant was employed by the Third Respondent for 20 years. At the time of his dismissal on 4 November 2010, he was employed as a Liquor Store Manager. Amongst his key performance areas[1] were inter alia, to adhere to all systems and procedures of the company; manage and control all debtors as per the debtor’s policy; ensure that correct receiving procedures are followed; control bookings for supplier deliveries and all customer deliveries. He was charged and dismissed for misconduct relating to:

i. ‘Breach of company policy and procedure in that he had allowed stock to leave the liquor store without a valid tax invoice;

ii. Allowed customers (Sedibeng & Selela Liquor Store) to take stock from the liquor store from December 2009 to present without ensuring that the customer signed for receipt of the stock.

iii. The above actions led to the financial loss to the company amounting to R62 545.70’

[3] The Applicant had referred a dispute to the Third Respondent resulting in the matter being set-down as a Con/Arb hearing on 24 November 2010. Following an objection to that process, a certificate of non-resolution was issued and the dispute came before the Commissioner on 14 March 2011 and 28 April 2011.

The arbitration proceedings:

[4] As evident from the Commissioner’s award and the record of proceedings, two witnesses had testified on behalf of the First

Respondent, viz Wayne Labuschagne, who was the Applicant’s immediate superior, and Simon Mokoena, a checker. The evidence is summarised as follows:

4.1 The alleged breach of company policies and procedures came to the attention of Labuschagne on 10 September 2010 when he received a call from a client and owner of Sedibeng and Selela Liquor Stores, Wener De Beer. The latter had informed him that his accountants had discovered that there were no invoices issued in respect of some transactions.

4.2 Two specific incidents in this regard took place. The first was on 4 December 2009 in respect of the Selela Bottle Store. In this regard, the complaint raised by De Beer was that he was invoiced in the amount of R16 727.81 but did not receive the stock. Labuschagne’s investigations had revealed that an invoice dated 4 December 2009 was made out to Selela Liquor Store even though there was no signed proof of purchase. It was also discovered that the invoice was pulled on

the instruction of the Applicant, and that the latter had also given a discount on the invoice before it was processed for invoicing by the cashier as per standard procedure. Despite investigations, the proof of purchase in regard to this transaction could not be found.

4.3 The second incident took place on 22 April 2010 in respect of Sedibeng Liquor Store involving an amount of R45 797.44. According to Labuschagne, investigations revealed that an invoice was drawn, that stock was checked against the quotation and yet there was no proof of purchase. There was no proof that the stock was received by Sedibeng Liquor Store.

4.2 The Applicant had according to Labuschagne, failed to follow established procedures which required that an order should be processed, and that discounts should be done first and thereafter an invoice be generated in order for the stock to go out. In this case, the stock went out on a quotation on the instructions of the Applicant. The proof of purchase was not signed by the client as proof of stock having been received, and as a result, the Third Respondent had to reverse the transactions and thus incurred the financial losses in the process.

4.3 The checker, Mokoena, was also disciplined and issued with a final written warning for failing to adhere to rules and procedures. His testimony was to the effect that the Applicant had instructed him to release the stock in question.

4.4 The Applicant’s testimony was to deny the charges against him, and had contented that his dismissal was pre-planned, that the sanction was severe and further that the chairperson of the enquiry was biased. He had given the quotation received from the client to Mokoena for checking, and it was for the cashiers to finalise transactions and to get invoices. The Applicant’s further contention was that the duty was upon the cashier to see to it that he and the client signed proof of purchase. If there was an error with any of the purchases, it was up to the client to inform him of those errors in order for him to rectify them immediately, and in this case, he had not received any queries.

4.5 According to the Applicant, it was unfair for the First Respondent to single him out for a dismissal when other employees were equally guilty of committing similar transgressions in allowing stock to leave the premises without proof of purchase being signed.

The arbitration award:

[5] In determining the fairness of the dismissal, the Commissioner had sought guidance from Schedule 8, Item 7 of the Code of Good Practice and considered all the sub-items stated therein. The Commissioner had concluded that:

5.1 The First Respondent had proven the existence of the rule and procedures, and that the conduct of the Applicant constituted gross negligence.

5.2 The rule was valid and reasonable as the First Respondent had to safeguard its assets and in view of the industry it operated in, and problems related to shrinkage and shortages.

5.3 The Applicant was aware of the rule as he had faxed the proof of purchase, and that he had tried to cover up the fact that he had not given the client the proof of purchase.

5.4 The Applicant was aware that the client had a revolving credit account and that it would be difficult for the client to pick up that it was charged for stock it never received.

5.5 The Commissioner rejected the Applicant’s testimony that he only dealt with discounts and thereafter gave it to the checker and the cashier to finalise the transaction.

5.6 The Commissioner rejected the Applicant’s contention that the First Respondent had acted inconsistently in applying the rules.

5.7 In regards to sanction, the Commissioner declined to intervene, having made reference to Sidumo[2] and the factors set out therein in determining the fairness of a sanction of dismissal. He had found the Applicant’s

conduct to be deceitful, that he was a dishonest witness and had failed to take responsibility for his actions.

5.8 In regards to procedural fairness, the Commissioner had found that despite the allegation that the chairperson of the enquiry was biased, no evidence was led in this regard, and thus nothing turned on this allegation.

The legal framework pertaining to reviews:

[6] In a review application where the Applicant relies on the provisions of section 145 (2) of the LRA, and where a defect in arbitration proceedings is alleged, the issue for determination is whether the Commissioner committed misconduct, gross irregularity or exceeded his powers within the meaning of those provisions.

[7] The test to be applied in review proceedings is that as laid down in Sidumo[3] in terms of which the question to be asked is whether the decision reached by the arbitrator is one that a reasonable decision-maker

could not reach based on the material before him or her. This test was further explained in Herholdt v Nedbank Ltd as follows[4]:

“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”[5]

The grounds of review and evaluation:

[8] The Applicant sets out various grounds of review in his founding and supplementary affidavits. I do not intent to burden this judgment with all the grounds of review as outlined in the Applicant’s founding affidavit for the simple reason that some of them require the Court to adopt a piecemeal approach where each factor that the Commissioner allegedly failed to take into account is analysed

independently and individually. This could lead to the blurring of lines between a review and an appeal, which Waglay JP had cautioned

against in Gold Fields Mining South Africa[6] in the following terms:

“Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome. But again, this is considered on the totality of the evidence not on a fragmented, piecemeal analysis. As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad-based evaluation of the totality of the evidence defeats review as a process. It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable - there is no room for conjecture and guesswork.”(Authorities referred to omitted)

[9] Cachalia JA in Herholdt[7] had similarly cautioned against the blurring of the fine line between a review and an appeal in the following terms:

‘The distinction between review and appeal, which the Constitutional Court stressed is to be preserved, is therefore clearer in the case of the Sidumo test. And while the evidence must necessarily be scrutinised to determine whether the outcome was reasonable, the reviewing court

must always be alert to remind itself that it must avoid 'judicial overzealousness in setting aside administrative decisions that do not coincide with the judge's own opinions' (References omitted).

[10] The practical approach to be followed in dealing with the nature of the grounds set in the Applicant’ papers is set out in Gold Fields Mining South Africa, which is to ask the following pertinent questions:

“…………. (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator

employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate (this may in certain cases only become clear after both parties have led their evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?”[8]

Did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute?

[12] The Applicant complained that the Commissioner had failed to advise him as a lay person, on the consequences of not challenging the First Respondent’s evidence, and further in not guiding him on the evidence to be presented.

[13] It was common cause that at the commencement of the arbitration proceedings, the First Respondent’s representative raised an issue surrounding the locus standi of the Applicant’s then representative (Mr. Thateng of RAWU) in those proceedings. The Commissioner was on the first day of the proceedings, satisfied that Thateng had the necessary locus standi to represent the Applicant. However when the matter resumed at a later stage, Thateng did not make an appearance. During the adjournment of the matter between March and April 2011, the Commissioner had established in another matter before him involving Thateng that he was not a bona fide Union official.

[14] When the matter resumed, the Commissioner had allowed the Applicant time to secure another representative, and when he was unsuccessful, he (The Applicant) had indicated that he was in a position to conduct his own case for the remainder of the proceedings. He had then proceeded to do so by cross-examining Labuschagne.

[15] In terms of section 138(1) of the LRA, a Commissioner is empowered to conduct arbitration proceedings in a manner that he considers

appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with minimum of legal formalities. This entails that Commissioners will in circumstances where parties are laypersons and unfamiliar with arbitration proceedings, be required to intermittently and cautiously step into the arena to direct the proceedings in the interests of justice.

[16] It is accepted that a Commissioner is obliged to assist unrepresented parties to adduce evidence[9] and to inform those parties of the importance of adducing relevant evidence, of challenging evidence and the implications of the failure to do so. The CCMA Guidelines on Misconduct Arbitrations[10] further places an obligation on the Commissioner to play the role of an Educator and to do a lot of explaining in order to guide lay parties through the process, including advising parties about evidence under oath/affirmation; failure to cross-examine; changing

of versions; how to present evidence; advise parties to lead evidence on a particular issue/point; to call a witness for that purpose or disallow questions if evidence is not relevant.

[17] Inasmuch as there is this obligation on the part of the Commissioner, it is my view that it does not imply that in each and every circumstance that the Commissioner fails in this duty, it should automatically be concluded that he or she had committed a reviewable irregularity. Whether such conduct should be construed as a reviewable irregularity will depend on a number of factors and the circumstances of each case. The first is whether such conduct has deprived the Applicant of a fair hearing. Secondly, it would further depend on the nature of evidence tendered and the probative value to be attached to that evidence. It is not an invariable rule that an adverse inference should always be drawn from unchallenged evidence. The fact that evidence was not contradicted does not imply that such evidence will always stand.

[18] The difficulty however will always arise in circumstances where a Commissioner, without having warned an unrepresented party about the importance of either challenging a version or putting a version to a witness then solely relies on that omission in arriving at his or her ultimate conclusion. In this case, the Applicant alleged that the Commissioner failed to advise him on the consequences of not challenging the evidence of Mokoena in regards to responsibilities relating to proof of purchase and the fact that it was disputed that it was the responsibility of the cashier and checker to ensure that such proof was signed. In this regard, the Commissioner had indeed stated that the Applicant had ‘conveniently’ forgotten to cross-examine Mokoena on that issue. The Commissioner had nevertheless concluded that it did not make sense that the cashier could be responsible for finalising credit sales involving the huge amount of money as in that case, and that for the purposes of credit sales, it was still for the client to sign acknowledgement of debt, and that the Applicant as a manager was best placed to deal with those types of transactions.

[19] Given the evidence tendered and the nature of the misconduct the Applicant was charged with, it is my view that on its own, the conduct of the Commissioner complained of did not have the effect of rendering the outcome unreasonable. Furthermore, as correctly pointed out on behalf of the First Respondent, the Applicant was capable and aware of the necessity to cross-examine witnesses, and as appears from the award, this issue as regards to who was ultimately responsible for ensuring that the proof of purchase was signed by the client was dealt with within the context of whether the Applicant was aware of the rule. The Applicant had baldly denied that he was aware of the procedures and policies, and in the light of this denial, it is not clear from the Applicant’s compliant as to how the Commissioner’s assistance in that regard would have made a material difference to his case. Furthermore, I did not understand the Applicant’s contention to be that the Commissioner had relied solely on that omission in reaching his conclusion.

[20] The Commissioner had also at the commencement of the Applicant’s testimony, explained to him the charges he was supposed to respond to and the evidence needed. In this regard, it is not clear with regard to what further assistance the Applicant needed from the Commissioner. The onerous role of the Commissioner in assisting unrepresented laypersons in arbitration proceedings is not unfettered. Even when Commissioners adopt an inquisitorial approach, they cannot cross that fine line between guiding/ assisting

laypersons, and conducting their cases. Thus in assisting laypersons, Commissioners are or should always wary of illegitimate forays into the arena. This Court, had sounded this caution in Bafokeng Rasimone Platinum Mine v Commission for Conciliation, Mediation & Arbitration & others[11] in the following manner:

“In conclusion, it needs to be stated that whereas there is a duty on arbitrators to provide guidance and assistance to lay litigants, the question of whether such duty arose and whether failure to carry it out is an irregularity rendering an award reviewable is a matter to be decided with reference to the particular circumstances of each case. Care should be taken not to straddle the fine line between legitimate intervention by an arbitrator and assistance amounting to advancing one party's case at the expense of the other. Otherwise we would be opening the floodgates allowing every lay representative who has bungled his/her case to seek its reopening by shifting the blame to the arbitrator. At the end of the day, the cardinal question is whether the merits of the dispute have been adequately dealt with and fairly so in compliance with the provisions of s 138 of the Labour Relations Act. That question can best be answered by considering the conduct of the arbitration proceedings as a whole rather than nitpicking through every shrapnel of evidence that was considered or not considered', as was stated in Coin Security Group (Pty) Ltd v Machago (2000) 5 LLD 283 (LC).”

[21] A further compliant, albeit raised in the heads of argument, was that the Commissioner by failing to start the proceedings afresh after he had disallowed the Applicant’s representative to continue with the matter constituted an irregularity. Firstly, it is trite that a case can only be made out in the pleadings and not for the first time in the heads of argument. Secondly, it is not clear what the basis of this contention was as I did not understand the Applicant’s case to be that he had made such a request. It is not a procedural requirement that proceedings should start afresh every time a representative withdraws from a matter or is disallowed to proceed with a matter. To hold otherwise would defeat the principle of expeditious resolution of disputes, and cause obvious prejudice to the other parties to the dispute.

[22] The Applicant had also complained of the Commissioner being biased as he had continuously reminded Labuschagne to answer or comment on statements put to him under cross-examination, but failed to do the same with him. This contention is without merit in that the record of proceedings showed that Labuschagne was told by the Commissioner to comment on a statement put to him under cross-examination after the cross-examiner did not afford him an opportunity to do so[12]. The Applicant was similarly reminded to comment on statements put to him by his cross-examiner[13]. Where an aggrieved party asserts bias, it has to establish a reasonable apprehension of bias. The threshold for a finding of real

or perceived bias is high[14]. In these circumstances, it cannot be concluded that there was some wrongful or improper conduct on the part of the Commissioner insofar as he had evenly reminded Labuschagne and the Applicant to respond or comment on versions put to them. There is therefore no basis for a conclusion to be reached that the Commissioner failed to afford the parties a fair and unbiased hearing as required by the rules of natural justice.

Did the arbitrator identify the dispute he was required to arbitrate?

[23] The Applicant’s further ground of review was that the Commissioner had considered irrelevant facts and had made reference

to ‘extracts on negligence which he was not charged on’. It was common cause that the Applicant was dismissed for allegations pertaining to breach of company policy and procedures by allowing stock to leave without a tax invoice, and further without ensuring that the customer had signed for receipt of stock in respect

of the transactions made, and the fact that this had led to the First Respondent suffering a financial loss.

[24] In his award, the Commissioner had properly captured the allegations that led to the dismissal. In his analysis however, his starting point in considering whether the rule was contravened was that ‘The rule that is the subject matter of this dispute is gross negligence’ (Sic)[15]. It is not clear what the Commissioner meant in this regard. He had however concluded that the employer had proved the existence of the rule, and that the conduct of the Applicant amounted to ‘gross negligence.’

[25] The First Respondent’s contention in this regard was that although the Applicant was not directly charged with negligence, his conduct (and the allegations) in regard to failing to adhere to the First Respondent’s rules regarding the release of stock contained some elements of negligence, and that the consideration of jurisprudence on negligence was therefore not irrelevant in the circumstances.

[26] Section 188 (2) of the LRA provides that:

‘Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act’

In my view, it follows from the above provision that a Commissioner is bound to consider the allegations that led to the dismissal, and determine with due regard to Item 7 of Schedule 8, whether based on those allegations (the reason), the dismissal was fair. In general, in arbitration proceedings, which take the form of de novo proceedings, a reason for a dismissal would consist of facts placed before the Commissioner, which were at the time the dismissal took place, known to the employer. It follows therefore that the reason for a dismissal and the facts placed before the Commissioner must equally be the basis for the Commissioner’s determination of fairness in the award. In other words, key to the determination of fairness is that the reason for the dismissal must be related to or based on the charges which were preferred against the employee, and which the employee had an opportunity to respond to. It follows that a Commissioner would commit gross irregularity where he or she makes a finding in an award, on the fairness or otherwise of the reason of a dismissal that was not placed before him or her. Effectively, this would constitute gross irregularity on the part of the Commissioner.

[27] The question that emanates from the above is whether by making reference to aspects of negligence, the Applicant’s conduct

constituted gross irregularity. Cachalia JA in Herholdt[16] held that:

“… an error of fact or law by the arbitrator would not justify the setting-aside of the award, unless it had the result that the arbitrator was diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination in the arbitration.”

[28] The evidence before the Commissioner mainly pertained to the Applicant’s breach of rules and procedures in regards to stock leaving the premises without a valid invoice, and clients not having signed for receipt of stock. In my view, the Commissioner’s

reference to aspects of negligence did not result in him diverting from the correct path in the conduct of the arbitration or led to him to failing to address the question for determination raised in those proceedings. Gross negligence involves conduct that is more serious than ordinary negligence. Within the workplace, it involves a blatant disregard of the need to take reasonable care, which has or is likely to cause foreseeable grave injury or harm to persons, property or both. It also places focus on the magnitude of the risks involved and the harm caused.

[29] In this case, it was the First Respondent’s case that the failure of the Applicant to adhere to the rules and procedures had caused it financial harm. Establishing negligence required an enquiry into inter alia, whether the employee failed to exercise the standard of care and skill that can reasonably be expected of him; whether the lack of care and skill manifested itself in an act or omission that did or could have caused loss to the employer, and whether there was loss or potential loss to the employer. In the light of these requirements, the evidence before the Commissioner in regards to breach of procedures and policies, and the effect it had on the First Respondent, it could not have constituted an irregularity on the part of the Commissioner to have considered those facts and to conclude that the Applicant’s conduct constituted negligence even when this was not the charge that specifically led to the dismissal. Furthermore, a charge pertaining to failure or breach

of company procedures and policies on its own contains elements of negligence, moreso where these procedures and policies are well known to the employee, or it is reasonably expected that the employee should know them.

[30] In coming to that conclusion, the Commissioner had placed emphasis on the existence of workplace rule, which fact the Applicant had placed in dispute. In this regard, and as correctly pointed out by the First Respondent in reliance on Metro Cash & Carry Ltd v Tshehla[17], an employee’s failure to follow set rules and procedures constitutes negligence. Furthermore, there is no basis for a conclusion to be reached that the Commissioner’s reference to aspects of negligence in itself was sufficient to set aside the award. In Gold Fields Mining South Africa, the Labour Appeal Court had held that the wrong categorization of the case against the employee by a Commissioner was not sufficient for the award to be reviewed and set aside[18]. In this case, the Commissioner had not miscategorised the case against the Applicant in the manner akin to that in Gold Fields Mining South Africa. He had merely classified the Applicant’s conduct as amounting to gross negligence without deviating from the issue for determination before him. To this end, in the absence of any contention that by making such a reference, the consequences thereof

were to render the outcome unreasonable, the complaint raised by the Applicant in this regard is found to be without merit.

Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?

[31] Flowing from conclusions made above, and as already pointed out elsewhere in this judgment, the Commissioner had properly captured

the charges that had led to the dismissal of the Applicant. He had described the issue he had to determine as pertaining to the

procedural and substantive fairness of the dismissal. In determining the fairness of the dismissal, the Commissioner had correctly sought guidance from Item 7 of Schedule 8 of the Code of Good Practice and had analyzed the evidence accordingly. The Applicant in his founding affidavit and written heads of argument had made allegations that the Commissioner should have considered this or that evidence, or should have made a particular finding. As pointed out in Herholdt, 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[19].

Did the Commissioner deal with the substantial merits of the dispute?

[32] The issue in dispute was whether the Applicant had failed to comply with the procedure and policies in regards to the First Respondent stock leaving the premises and documents pertaining to transactions with clients. The Commissioner had concluded that based on the evidence before him, the Applicant, despite his denials, was aware of the procedures and policies and had breached them; that the rule was valid and reasonable as the First Respondent had to safeguard its assets. This was in line with the principles set out in in Metro Cash & Carry where the Labour Appeal Court (Per Gretorius and Pauw, Assessors) held that:

“Employers especially those in the retail industry are frequently faced with the situation where it is necessary to introduce measures to control losses of stock, merchandise and money. An Employer is entitled to introduce rules to protect its commercial integrity and to expect compliance therewith. It is further entitled to treat disregard or non-compliance with such rules with severity such as dismissal.”[20]

[33] In regard to complaints surrounding inconsistency, the Commissioner had extensively dealt with the evidence and rejected the Applicant’s contention that the First Respondent had not consistently applied the rule. He had found that the dismissal of the Applicant was not for improper motives or in bad faith. It is trite that it is not sufficient for an employee to simply make an allegation that an employer had not consistently applied its rules or discipline. An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of factors such as differences in personal circumstances, the severity of the misconduct or on the basis of other material factors[21]. The CCMA Misconduct Arbitration Guidelines equally make this point by providing that:

‘[u]nless the employer can provide a legitimate basis for differentiating between two similarly placed employees, a disparity in treatment is unfair’;

‘it is not inconsistent to treat employees charged with the same misconduct differently if there is a fair and objective basis for

doing so. This may include mitigating factors, aggravating factors or relevant aspects of the employee’s disciplinary record’

[34] In this case, the Applicant had denied that he had breached the procedures and policies or the fact that these existed. The

Commissioner had found his conduct to smack of ‘impropriety and deceit’, had found that he was a dishonest witness who had attempted to extricate himself from his responsibilities, and that as a senior employee, it was expected of him to lead by example. The Commissioner was not persuaded by the Applicant’s long service when considering the fairness of the sanction of dismissal, and had taken into account the fact that the First Respondent had suffered actual loss in the amount of R62 599.70, which compounded the seriousness of the offence. As already indicated, the Commissioner had also disposed of the inconsistency challenge by pointing out that the failure to dismiss other employees allegedly involved in the breach of the same procedures and policies were not based on mala fides or improper motives.

[35] In the light of the above, I am satisfied that there is no basis to conclude that the Commissioner had misconceived the nature of the inquiry or arrived at an unreasonable result. In the circumstances, the Commissioner’s decision is one that another decision-maker could reasonably have arrived at in the light of the evidence and the issues he was called upon to determine.

[36] I have had regard to considerations of law and fairness, and in this regard, a cost order is not deemed to be appropriate.

Order:

i. The application to review and set aside the arbitration award issued by the Second Respondent is dismissed.

ii. There is no order as to costs.

___________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr. M Kgang of Mphafi Kgang Inc

For the First Respondent: Mr. B Shezi of Edward Nathan Sonnenbergs Inc

[1] Which copy the Applicant had signed on 17 December 2009 (Part of the Applicant’s separate bundle)

[2] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) at paragraphs 72 - 78

[3] at para 110

[4] [2013] 11 BLLR 1074 (SCA) at para 12

[5] [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) at para 25

[6] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others at para 21

[7] Supra at para 13

[8] At para 20

[9] Sondolo IT (Pty) Ltd v Howes & Others [2009] 5 BLLR 499 (LC)

[10] Published in the Government Gazette, No 34573

[11] (2006) 27 ILJ 1499 (LC), at para 17

[12] Record of Proceedings, Pages 91 and 92

[13] Record of proceedings, P224

[14] South African Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd (Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC) para 15

[15] At paragraph 28 of the award

[16] At para 19

[17] [1996] 17 ILJ 1126 (LAC)

[18] At paragraph 31

[19] At para 12

[20] At para 9.4 E-F

[21] See Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC) at 545H-I;