Ngobo v Department of Correctional Services and Others (D 1184/17) [2021] ZALCD 11 (19 July 2021)

IN

THE LABOUR COURT OF SOUTH AFRICA

Case no: D 1184/17

Not Reportable

In the matter between:

MS

NGCOBO

Applicant

and

DEPARTMENT OF

CORRECTIONAL SERVICES

First Respondent

GPSSBC

Second Respondent

DIALWA MATHALA N.O.

Third Respondent

Application heard: 10 March 2021 (on the papers)

Delivered: This judgement was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for the hand down is deemed to have been at 12 noon on 19 July 2021.

JUDGMENT

WHITCHER J

[1] This is an application brought to review and set aside the award made by the third respondent acting as arbitrator under the auspices of the second respondent in which he found that the dismissal of the applicant was substantively fair. The application is opposed by the first respondent (‘the respondent’).

[2] On 10 March 2021, I condoned the late filing of the answering affidavit. The default was minimal, explined and posed no prejudice to the applicant, considering a review application is based on the record.

[3] Despite the applicant’s efforts to convolute same, the relevant facts of this matter are actually simple and mostly common cause,[1] and give rise to inferences that are obvious.

[4] The applicant applied for to the Learnership Program of the respondent and as per the advert it was a requirement that prospective applicants must not have criminal convictions.

[5] The applicant was obliged to complete the application form and/or the enrolment contract, which required him to disclose previous criminal convictions. The question in the application form was framed as follows “Any offense which you understand, whether civil or criminal, irrespective of whether minor or not, pending or not pending, must be declared. Concealment of the aforementioned or furnishing any false information regarding your application with result in your discharge within 24 hours without prior notice”.[2]

[6] Furthermore, the form stated that concealment of the aforementioned or furnishing false information regarding your application will result in your discharge within 24 hours, without prior notice.

[7] The applicant had a previous conviction for possession of dagga wherein he was arrested and pleaded guilty. He was sentenced to five months imprisonment with an alternative of a R200 fine. The applicant paid the fine.

[8] In the application form and/or contract the applicant failed to disclose his previous conviction. Where he was required in the form to disclose any criminal convictions he ticked a NO.

[9] The applicant was admitted to the Learnership Programme and his criminal record was picked up just before the graduation ceremony.

[10] The applicant was subjected to a disciplinary hearing and he pleaded guilty to the charge and he was subsequently dismissed. At the arbitration, it was agreed that it was common cause that the applicant did not disclose his criminal conviction on application or signing of the contract. The parties entered into a pre – arbitration agreement in terms of which the issues to be determined were the following: whether or not the applicant’s dismissal was an appropriate sanction; and whether or not the applicant disclosed his previous conviction at a later stage at the college.

[10] After hearing the evidence of the respondent’s witnesses, together with the applicant and his only witness, the arbitrator considered the probabilities of the applicant’s version and concluded that the reasons preferred by the applicant were not persuasive in relation to the explanation for why he did not disclose his previous conviction and his version that he disclosed it at a later stage at the college.

[11] The arbitrator found that the applicant’s conduct had been premeditated and orchestrated to mislead and gain an unfair advantage

into the system, and the sanction of dismissal was an appropriate sanction.[3]

[12] It is trite that even if the reasoning of an arbitrator is materially flawed, the review will not succeed if the result is nevertheless justifiable on the evidentiary material that was before the arbitrator. The applicant had to demonstrate that the award is not capable of reasonable justification on all the material that was before the arbitrator, including for the reasons not considered by the arbitrator.

[13] In the case of Khambule v National Union of Mine Workers and others,[4] the Labour Appeal Court (per Waglay JP) stated as follows:

It needs to be restated that when considering a review, the reasoning of a commissioner is no guiding light in determining whether the decision or more particularly the “order” handed down is reasonable. Put differently, a court reviewing an award need not consider the commissioner’s reasoning to determine whether or not his/her reasoning justifies the award. The reviewing court, as has been repeatedly held, must consider all the evidence led at the arbitration and in the light of that evidence determine whether the award is one which any commissioner in the position of the commissioner, who determined the arbitration, could reasonably make. If the answer is in the positive, then there must be no interference with the award.

[14] The review application, properly considered is nothing more than a complaint that the arbitrator did not accept the applicant’s version regarding certain factual matters and his argument regarding the appropriate sanction, which is really an attempt at an appeal.

[15] The arbitrator’s finding that the applicant’s explanation that he did not know that paying a fine was a criminal offence was patently improbable is founded on logic and evidence logically relevant to the issue.

[16] In paragraph 25 the arbitrator stated that “I find the version of the applicant that he was not aware that he had a criminal record improbable thus, after being found in possession of dagga, arrested and taken to police station, questioned and only to be released when a fine was paid, appearing in court and the magistrate asked him questions after which he was asked to go home after his mother issued the magistrate with proof of payment of a fine…The applicant testified that he is good in writing and read English and one wonders how he missed the writing on the slip of the fine stating exactly what that implied..”

[17] There is also no reviewable basis to interfere with the arbitrator’s rejection of the applicant’s claim that he had subsequently disclosed his criminal conviction during his time at the college during a vetting process simply on the basis that (even if likely), it was too late as he was accepted on the Learnership Programme based on incorrect or fraudulent information in his application to the programme.

[18] The applicant’s suggestion that his version ought to have been accepted just because he requested vetting documentation from the respondent in vain overlooks the fact that he laid not even a prima facie case for the respondent to answer. The version of the so-called circumstances under which he disclosed was garbled and vague and did not answer the question: why then and not at the materially appropriate time, namely the application form which pertinently addressed the matter?

[19] That puts paid to the factual disputes, the latter one not material to the real issue: whether the applicant failed to disclose his criminal conviction when he applied to the Learnership Programme.

[20] The applicant’s next ground of review can only be described as frivolous. He contends that the arbitrator committed misconduct in concluding that his conduct meets all the requirements of dishonesty as there was no evidence tendered by the respondent about dishonesty during the arbitration. It is self-evident that his conduct involved a calculated willingness to lie and mislead. As correctly noted by the arbitrator: “The applicant testified that he is good in writing and reading English…The contract was clear when it dealt with disclosure of previous convictions…It is improbable that the applicant could not understand what was really expected of him. These requirements were or must have been known to him before completing the form since they (also) appeared in the Learnship advert he was reacting to…”

[21] The final ground of review concerns the fairness of the sanction of dismissal. I am unable to discern the applicant’s case here. In any event the evidence disclosed a number of factors relevant to this question[5] and which weighed in favour of a finding that the respondent did not act unfairly when it imposed the sanction of dismissal. In terms of the principle of proportionality, as per Sidumo the decision was not unfair.

[22] As stated above, viewed objectively, the applicant’s conduct was dishonest, and, as found by the arbitrator, calculated to gain entry into the Learnership Programme.

[23] The application form had warned the applicant that the furnishing of false information would result in his discharge.

[24] The nature of the offense and the nature of the employer are irreconcilable. In paragraph 27 of the award the arbitrator referred to the evidence of Sibutha who testified that dagga smuggling into their facilities is a challenge, hence the nature of the offense of the Applicant would make it impossible for the Applicant to be absorbed in the system even if he disclosed and applied for condonation.

[25] The applicant harped on the fact that he completed the programme and suggested that since the non-disclosure was only discovered when he was about to graduate, it somehow dissipates the offence or the seriousness of it. In G4S Secure Solutions (SA) (Pty) Ltd v Ruggerio N.O and Others (2017), 38 ILJ 881 (LAC) a job applicant for the position of security guard had stated ‘no’ on his application form when asked if he had any prior criminal convictions. Some fourteen years after his appointment, the employer discovered that he indeed had two previous criminal convictions which he had failed to disclose. The LAC found that the employee’s dishonesty and failure to disclose his criminal convictions led directly to him being employed and the fact that it had been concealed for such a long period of time did not detract from the seriousness of the misconduct.

[26] The mere fact that the applicant pleaded guilty does not change much. The offence related to dishonesty in circumstances where the nature of the job and the employer were pertinent. The arbitrator considered that and referred to case law that in such cases even the strongest mitigating factors do not assist.

[27] Given the above, it cannot be said that no reasonable arbitrator could have found that dismissal was justified.

[28] On the issue of costs, I deem it fair that the applicant pay the respondent’s costs in this application. It was clear from the beginning that there were no prospects of success of the review application. It was based on grounds which were frivolous and did not even amount to proper grounds of review. The respondent was also put to the expense of opposing the reinstatement of the review. I however do not make a cost order for this application since it was not before me.

Order

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

1. The review application is dismissed.

3. The applicant must pay the costs incurred by the first respondent in opposing the review application.

________

Benita Whitcher

Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT:

M P Nonyongo Attorneys

FIRST RESPONDENT: Adv S Tshangana, instructed by Office of the State Attorney, KZN

sibusisotshangana@yahoo.com

Mzolisi.nonyongo@gmail.com

MPillai@justice.gov.za

[1] And accurately summarised by the respondent.

[2] See Record, page 327, lines 13 – 20.

[3] See paragraph 28 of the award.

[4] (JA 89/17) [2019] ZALAC 61; (2019) 40 ILJ 2505 (LAC) (24 July 2019)

[5] See Sidumo.