SAPWU obo Mogotsi v Commissioner for Conciliation Mediation And Arbitration and Others (JR2188/11) [2014] ZALCJHB 428 (31 October 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no. JR 2188/11

In the matter between

SAPWU OBO TLHANKI JOSIAH MOGOTSI

Applicant

and

COMMISSIONER FOR CONCILIATION

MEDIATION AND ARBITRATION

First Respondent

COMMISSIONER: JSC NKOSI N.O

Second Respondent

SA POST OFFICE LIMITED

Third Respondent

Heard: 06 June 2014

Delivered: 31 October 2014

JUDGEMENT

SHAI AJ

Introduction

[1] This is an application by the Applicant in terms of Section 145 of the Labour Relations Act 66 of 1995 as amended which seeks to review, set aside and correct the award of the Second Respondent dated 31st July 2011, under case no GAJB 10419/11 and under the auspices of the First Respondent.

[2] Secondly, the Applicant applies for condonation of the late filing of the replying affidavit and amended notice of motion.

The Facts

[3] The Applicant was employed by the Third Respondent as Branch Manager at one of its branches. He was dismissed on 5 April 2013 following a disciplinary hearing wherein he was charged of:

‘Financial misconduct: You committed financial misconduct if you wilfully or negligently fail to exercise power/duties that are delegated or assigned to you, in that, on the 31 August 2010 you performed a reissue transaction of a Postbank card without following certain

procedure which resulted in a loss of R71875.95’.

[4] He was found guilty and handed a sanction of dismissal. A referral of an unfair dismissal dispute was lodged with the CCMA on 21 April 2011 and the matter was arbitrated on 21 July 2011. The arbitrator found that the dismissal of the Applicant was substantively fair. Only substantive fairness was put in issue. It is this finding that is sort to be challenged.

Point in limine

[5] The Third Respondent raised a point in limine regarding the application for condonation of the late filing of the replying affidavit and amended notice of motion. Third Respondent submitted that when delivering the transcribed record on 05 February 2011, the Applicant simultaneously served the Respondent with a notice in terms of 7(8) (b) indicating that he stands by his notice of motion. Third Respondent submitted that this amounts to an irregular step and should be struck off and/or set aside by the Honourable Court. Further that, both amended notice of motion and supplementary affidavit were delivered on 26 September 2011 long after the Third Respondent answering affidavit and heads of argument had been filed on 20 February 2012 and 20 June respectively. Further that, the said documents was filed approximately 8 months out of time.

[6] Rule 7(8) of the Rules of the Labour Court provides that the Applicant must within 10 days after the Registrar has made the record available either:-

a) by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of Notice of motion and supplement the supporting affidavit; or

b) deliver a notice that the applicant stands by its notice of motion

[7] The Applicant filed his Rule 7(8) (b) notice on the 2 February 2011 to the effect that he stands by his notice of motion.

[8] Now approximately 8 months after this the Applicant files its amended notice of motion and supplementary affidavit. If this does not amount to irregular step I do not know what it is. I say this because if the Applicant had not filed the said 7(8) (b) notice then it would be procedural if the Applicant applies for condonation of the filing of this notice and its supporting affidavit. In the application for condonation no reasons are given for this about turn. Only the reasons for late filing amended notice and supplementary affidavit are sought to be explained. This is even more serious in that it was done long after the Respondent had filed its answering affidavit and heads of argument. A party cannot file a notice in terms of which the other party acts but later pretends as if it does not exist.

[9] I am of the opinion that if the Applicant wanted to amend his Rule 7(8) (b) notice he should have made an ordinary application to amend the said notice and explain why it was necessary to do so having filed the said notice. Once permission is granted for the said amendment the current application for condonation could then be entertained.

[10] Owing to this irregularity I determine that the said documents fall to be disregarded.

[11] Even if I’m wrong on this point and for argument sake I consider the application for condonation of the said documents, the period of delay is too excessive and there is no proper explanation for such delay.

[12] The Applicant submitted that the reason for delay was due to the fact that he was afflicted by a condition called Major Depressive Disorder and Chronic Reaction. The Applicant has attached two sick notes that attest to his condition. The first one, ‘Annexure C’ shows that he was admitted from 14 January 2011 to 22 January 2011 for management of the said disorder. The other one, ‘Annexure B’ indicates that he was admitted on 18October 2012 for three weeks. What is clear is that the period after the 22 January to 17 October 2012, a period of approximately seven months, is unexplained. There is no allegation in the application that the employee was unable to give instructions to his attorneys and for what reason. I therefore regard the period as unexplained. The Applicant contends that his prospects of success are good. In this respect he cites the fact that the commissioner departed from the Third Respondent‘s disciplinary code when he determined that his dismissal was fair. Further that, he the Second Respondent, failed to keep a proper record of the proceedings and that he refused to postpone the proceedings when he should have done so. The grounds which the Applicant relies on for purpose of prospect of success are not raised in his notice of motion and therefore I do not see how he would succeed with this application for review if that is the case.

[13] The factors that need to be taken into account when determining whether there is sufficient cause to grant condonation were set out in Melane v. Santam Insurance Co Ltd[1] and involves weighing together the following factors; which are interrelated: degree of lateness, explanation thereof, the prospects

of success and the importance of the case. The court went on, and said that although these factors are interrelated; are not individually decisive; if there are no prospects of success there would be no point in granting condonation.

[14] In line with Melane case, I determine that a good case for the condonation has not been made. I therefore do not grant condonation for the late filing of the replying affidavit, and the amended notice. The matter will therefore be determined in terms of founding papers and answering papers.

Grounds for review

The grounds for review are stated as follows:

[15] The commissioner exceeded his powers in that he was biased towards the Respondent.

[16] The commissioner disregarded evidence tendered by the Applicant which on the balance of probabilities demonstrated that he was unfairly dismissed for no valid reason.

[17] The commissioner ordered that the dismissal was substantively fair and the matter should be dismissed.

The test for review

[18] The test for review of arbitration awards is now accepted as the one enunciated in the well-known case of Sidumo and Another v. Rustenburg Platinum Mines Limited and Others[2] . In this case the Court held that the review grounds set out in section 145 have been suffused by the constitutional standard of reasonableness, and that an arbitration award of the CCMA or Council is reviewable if the decision reached by the commissioner was one that a reasonable decision-maker could not reach.

[19] In Sidumo, Ngcobo J, as he then was, was of the view that although the provisions of Section 145 of the LRA have been suffused by the Constitutional standard of a reasonable decision maker, a litigant who wishes to challenge the arbitration award under Section 145(2) must found his or her cause of action on one or more of these grounds of review.

[20] Regarding gross irregularity as a ground of review Ngcobo J said the following:

‘[262] The basic principle was laid down in the often- quoted passage from Ellis v Morgan [Ellis v Morgan, Ellis v Dessan 1909 TS 576] where the court said:

‘But an irregularity in proceedings does not mean an incorrect judgment; it refers not to the result, but to the methods of a trial, such as for example, some highhanded or mistaken action which has prevented the aggrieved party from having his case fully and fairly determined’.

The Court went further to say that:

‘In Goldfields [Goldfield investments LTD and Another v City Council of Johannesburg and Another 1938 TPD 551], Schneider J distinguished between patent irregularity that is, those irregularities that take place openly as part of the conduct of the proceedings, on the one hand, and ‘latent irregularities’’, that is, irregularities that take place inside the mind of the judicial officer, which are only ascertainable from the reasons given on the decision maker. In the case of latent

irregularities one looks at the reasons not to determine whether the results is correct but to determine whether a gross irregularity

occurred during the proceedings. In both cases, it is not necessary to show intentional arbitrariness of conduct or any conscious denial of justice…’'

[21] In the case of Fidelity Cash Management Service .v Commissionfor Conciliation, Mediation and Arbitration[3], the court reconfirmed the relevance of section 145 of the Labour Relations Act 66 of 1995 as amended and said the following at page 101:

‘Nothing said in Sidumo means that the grounds of review in sec 145 of the Act are obliterated. The Constitutional Court said that they are suffused by reasonableness. Nothing said in Sidumo means that the CCMA’s arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in sec 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise. Also

if the CCMA made a decision that exceeds its powers in the sense that it is ultra vires its powers, the reasonableness or otherwise of its decision cannot arise’.

[22] The court went further and said:

‘…….In many cases the reasons which the commissioner gives for his decision, finding or award will play a role in the subsequent assessment of whether or not such decision or finding is one that a reasonable decision-maker could or could not reach. However, other reasons upon which the commissioner did not rely to support his or her decision or finding but which can render the decision reasonable or unreasonable can be taken into account. This would clearly be the case where the commissioner gives reasons A, B and C in his or her award but, when one looks at the evidence and other material that was legitimately before him or her, one finds that there were reasons D, E and F upon which he did not rely but could have relied which are enough to sustain the decision’.

[23] Further that the Court In the case of Herholdt v.Nedbank LTD[4] 2013 (6) SA 224 (SCA), summarised the test as enunciated in the Sidumo case and as also as interpreted in the cases such as Gaga v. Anglo Platinum Ltd and others[5],Afrox Healthcare Ltd. v.CCMA and Others[6] ,Herholdt v. Nedbank Ltd and Fidelity Cash Management Services v.CCMA and Others[7] as follows:

‘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’.

[24] My understanding is therefore that if the Commissioner commits acts as stipulated in Section 145(2) of the Act the decision arising from proceedings so conducted would not be reasonable, thus would not pass the constitutional standard of the reasonable decision maker. However, it is not every irregularity that should result in review of an award. The totality of the evidence must be taken into account to determine if the decision of the commissioner is not the one a reasonable commissioner would not reach.

Evaluation

[25] It was argued for the Respondent that the Applicant had not stated the reasons for its conclusion that the commissioner was biased against him. Indeed this is true. It is not sufficient to say the commissioner was biased. Sufficient evidence must be placed before the Court to determine same. In the absence of that the Applicant has no basis for concluding that the commissioner was biased against it. Indeed going through the record I could not find anywhere where the commissioner appeared to be biased in favour of the Respondent, it is in fact quite opposite. There are instances where the commissioner rebuked the Respondent’s representative in a number of occasions and indeed disallowed him to do certain things. It is not necessary to go into all the incidents but sufficient to cite one. At page 142 of the record line 5 the matter unfolded as follows:

‘Respondent Representative: Mr G.P. Segakwe: There was a question that was put to before you on the last sentence of this thus that how do you verify the information of the replacement lost/damaged card on document 12 without printing the mini statement, you said I took it for granted that the information is correct. Is it your nature Mr Mogotsi to take things for granted when money is involved?’

Commissioner: What nature, are you questioning the character of the witness?

Respondent Representative: When dealing with Post Office issue….

Commissioner: But this is [inaudible] you want to put the character of the witness in question, is it admissible evidence?

Respondent’s Representative: No no let me rephrase this question is it Mr Mogotsi’s way you conduct business when dealing with Post Office financial transactions to take things for granted?

Commissioner: Is that factual?

Respondent’s Representative: Mr Commissioner this is very serious….(intervenes).

Commissioner: Next question.

Respondent’s Representative: Mr Commissioner this is very serious.

Commissioner: I have ruled on the matter.

[26] This is but one of the incidents that show that the commissioner ruled against the Respondent when necessary. However, what is clear is that the issue had nothing to do with the character of the Applicant but with his testimony at the disciplinary hearing and was wrongly classified as character evidence. At the Disciplinary Hearing he was asked a question as to why he did not verify a particular document or signature and his response was that ‘I took it for granted’. This clearly has nothing to do with his character but the way he deals with documents.

I therefore find no basis for concluding that the commissioner was biased against the Applicant.

[27] The second ground of review is that the commissioner disregarded his evidence which shows that he was substantively unfairly dismissed. Once again the Applicant does not show in what respect the commissioner disregarded his evidence.

[28] In the analysis of evidence and argument paragraph 5.1 the commissioner started by saying ‘I’m inclined to find the version of the respondent the more plausible for the following reasons: The applicant acknowledges that he failed to follow procedures properly and that there was a loss of at least R6000,00 as a result of this transaction’.

[29] It appears to me that the Applicant seems to have a serious problem with the above statement and seems to say it is not borne out of evidence he adduced. I will show below that the commissioner is sport on on this aspect. I will do so in great detail.

[30] At page 166 of the disciplinary record the evidence went as follows:

‘Initiator: Mr G.P.Segakwe

Do you need to print a mini statement when performing the reissue transaction?

Respondent: Mr T.J.Mogotsi:

No

Initiator: Did you print the mini statement?

Respondent: Mr T.J.Mogotsi

Respondent: T.J.Mogotsi:

Initiator: Mr G.P.Segakwe

But according to Doc 2, item 2, you were asked the question ‘Did you print a mini statement’ you answered yes and in your own hand writing, why no now?

I did not understand the question

Initiator: G.P.Segakwe

Did you answer this question on doc 2,3 and 4 under duress?

Respondent: T.J.Mogotsi

No.

[31] Page 167 of the minutes of the disciplinary hearing ends as follows:

‘Initiator: Mr GP Segakwe

In your presentation I heard you saying that you have followed procedures, am I correct?

Yes’.

[32] At page 169 of the said minutes the following is recorded:

Initiator:

‘Payne was in the office and even transferred R3500,00 to you at 15:00:45 (see page 34 four minutes after you completed the withdrawal

transaction at 02:56) for you possibly to be able to make up the R7000,00 withdrawal. What is your response?

Respondent: Mr T.J. Mogotsi

It was a mistake not to give it to Payne, I did not think about it.

Initiator: What is the purpose of mini statement?

To verify the information

Verify the information where?

On the lost/damaged form (Doc 12)

Initiator: Mr GP Segakwe

How did you verify the information on the Replacement of lost/damaged card form (Doc 12) without printing the mini statement?

I took it for granted the information is correct.

Initiator: Mr Segakwe

Is it the first time to take Post Bank procedures for granted?

Yes

If I say to you it is not the first that you took the procedures for granted what will be your response?

I do not know I made a mistake.

Do you expect the company to give you a final written warning again?

I made a mistake’.

[33] At page 171 of the record of minutes the minute went as follows:

‘Initiator: Mr Segakwe

Did you verify the information on document 12?

No I did not

Why?

I thought it was correct.

Initiator: Mr G.R.Segakwe

Is the balance on the Replacement of lost/damaged card form correct when you performed the reissue transaction?

I don’t know.

Are the particulars of the last transaction correct? I am referring to the withdrawal of the R200,00 on 21 August 2010 at Southgate?

Was the present address of the Applicant there so that Security and Investigation can visit the applicant?

I don’t know if it is reflected.

Is the two signatures of the applicant on the application form the same?

No’.

[34] At page 172 the minutes went as follows:

How possible is it that you Mr Mogotsi with a service of 30 years can accept a document which is having two diffirent signatures and re-issue a Post Bank Card and even deliver it?

[35] The same evidence was adduced at the arbitration particularly at page 134 -142 of the bundle. It is mind boggling for anyone to suggest that the foregoing does not amount to an admission of not following procedure. When the applicant was asked as to whether he followed procedure, he insisted that he did but when taken through the procedures one by one he admits that he did not.

[36] All in all going through the record I’m satisfied that the commissioner understood the enquiry before him, applied his mind to the issues and reached a conclusion a reasonable decision maker could reach.

[37] In the premise I make the following order:

a) The application to review, set aside and correct the award of the Second Respondent dated 31 July 2011 under case number GAJB 10419/11 issued under the auspices of the first Respondent is dismissed with costs.

__________________

Shai AJ

Judge of the Labour Court of South Africa

APPEARANCE

For the Applicant: Advocate K Lapham

Instructed by:

For the Respondent: Advocate Connie Prinsloo

Instructed by:

Rooth & Wessels

[1] 1962 (4) SA 531 (A).

[2] 2008 (2) SA 24 (CC).

[3] (2008) 29 ILJ 964 (LAC) at para

[4] 2013 (6) SA 224 SCA ; [2013] 11 BLLR 1074 SCA; (2013) 34 ILJ 2795 SCA.

[5] (JA44/40) [2011] ZALAC 29; [2012] 3 BLLR 285 (LAC) (20 October 2011

[6] (JA37/09)[2012] ZALAC 2; [2012] 7 BLLR 649(LAC) (2012) 33 ILJ 1381 (LAC) (28 February 2012)

[7] [2012] 9 BLLR.857 (LAC), (DA 10/05) [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC) (5 December 2007)