Nel v Transnet Bargaining Council and Others (JR 2629/07)  ZALC 151;  1 BLLR 61 (LC) (26 June 2009)
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IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
CASE NO: JR 2629/07
In the matter between:
W P NEL …...........................................................................................APPLICANT
THE TRANSNET BARGAINING
COUCINL (TCB) …..................................................................1ST RESPONDENT
RUSSEL MOLETSANE N.O. ….............................................2ND RESPONDENT
SPOORNET …..........................................................................3RD RESPONDENT
This is an application to review and set aside the arbitration award issued by the Second Respondent (the Commissioner) under case number BC. NEL/SP (HQ) GR/ 9813, dated 7th August 2007, in terms of which the Applicant’s dismissal was found to have been fair.
The Applicant has also applied for condonation for the late filing of the review application. The Third Respondent opposed both the review and the condonation application.
The Applicant who was prior to his dismissal employed by the Third Respondent during 19th June 1976, as the key accounts manager was charged and dismissed for misconduct involving failure to disclose a gift he received from a client of the Third Respondent.
The Applicant was in the first charge accused of serious misconduct of failing to exercise his responsibility in good faith in the best interest of the Third Respondent. This charge is based on the accusation that the Applicant received or obtained a gift or gratuity in the form of a fully paid trip to Fancourt Golf Estate in George. It was alleged that the trip which was during September 2006, was paid for by Mr Peter Franks the managing director of Impex Project (Pty) Ltd. The other leg to the accusation is that the Applicant did not disclose or declare the gratuity to his line manager or the Third Respondent. Failure to disclose was regarded as a breach of the Code of Ethics which reads as follows:
“The occasional exchange of entertainment and gifts not exceeding R500 in value may be appropriate, as long as such courtesies are not specifically intended to influence any procurement or sales decisions and are declared in the Declarations Register with the Spoornet Company Secretary. Such favours may be considered bribery, which violates South African law and is against all that Spoornet stands for. Any Spoornet employee found guilty of above could be immediately dismissed or face civil action.”
The second charge which reads the same as the first charge was based on the following:
“(i) compromised or may have compromised your integrity, honesty, objectivity and/or impartiality in conducting business on behalf of Spoornet; and/or
(ii) compromised or may have compromised the perception by Spoornet and/or your line management and or clients or potential clients of Spoornet regarding your integrity, honesty, objectivity and/or impartiality in conducting business on behalf of Spoornet with the said Impex Projects (Pty) Ltd; and/or
(iii) which conduct has influenced or may influence your conduct in future business dealings with the said Impex Projects (Pty) Ltd and/or other clients or potential clients of Spoornet in the obtaining or in the impartial allocation of rail transport capacity.”
The Applicant was found guilty of both charges 1 and 2 but not guilty on charges 3 and 4. After his dismissal by the Third Respondent, he referred the dispute concerning the unfair dismissal to the First Respondent for conciliation and upon failure thereof to arbitration.
The Applicant in his defence did not deny attending golf at Impex but stated that he had taken leave and had informed his manager about golf event.
Principles applicable to condonation
“ The principles governing the requirement for granting or refusal of condonation are well established in our law. In terms of these principles the court has a discretion which is to be exercised judicially after taking into account all the facts before it. The factors which the court takes into consideration in assessing whether or not to grant condonation are: (a) the degree of lateness or non compliance with the prescribed time frame, (b) the explanation for the lateness or the failure to comply with time frames, (c) bona fide defence or prospects of success in the main case; (d) the importance of the case, (e) the respondent’s interest in the finality of the judgement, (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice. See Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC).”
 These factors are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors for instance, a good explanation for the lateness may assist theapplicant in compensating for weak prospects of success. Similarly strong prospects of success may compensate the inadequate explanation and the long delay.
 In an application for condonation, good cause is shown by the applicant giving an explanation that shows how and why the default occurred. There is authority that the court could decline the granting of condonation if it appears that the default was wilful or was due to gross negligence on the part of the applicant. In fact the court could on this ground alone decline to grant an indulgence to the applicant.
 Prospects of success or bona fide defence on the other hand mean that all what needs to be determined is the likelihood or chance of success when the main case is heard. See Saraiva Construction (PTY) Ltd v Zulu Electrical and Engineering Wholesalers (PTY) Ltd 1975 (1) SA 612 (D) and Chetty v Law Society 1985 (2) SA at 765A-C.
 A further principle which was enunciated in Melane v Santam Insurance Co Ltd, 1962 (4) SA 531 (A) at 532C-F, is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused. It has also been held by the courts that the applicant should bring the application for condonation as soon as it becomes aware of the lateness of its case.”
In the present instance the Applicant’s review application was 39 (thirty nine) days late. The reason for the delay are set out in the founding affidavit as follows:
“21.3 Since the time of the incident on 6th September 2006, it took the Employer until 17th April 2007, approximately 8 months later, to come to a decision to terminate my services and I only received the Arbitration Award approximately 4 months later and almost one year after the alleged incident.
21.4 I was surprised when I met with my lawyer on 24 October 2007 to hear that the Court Rules provide only a limited period within which I had to bring this application.
21.5 During September 2007, I met with various professional people, including my Financial Adviser, Mr Barend Kirsten, to seek advice on my future remedies against my Employer. He investigated the circumstances of my dismissal and he later referred me to an Attorney to pursue the matter further.
21.6 I immediately followed his advice and my Lawyer advised me to file this affidavit.”
In relation to prospects of success the Applicant contends that the conclusion of the Commissioner is one which a reasonable decision-maker could not reach. In this regard the Applicant relies on the grounds of review as set out in the founding affidavit.
Evaluating the explanation for the lateness
In my view the above explanation is unsatisfactory and should for that reason be rejected. The Applicant does not indicate when in September did he seek advice from the professionals and who these professionals were. There is also no explanation why he went to seek advice from a financial advisor on a matter which on the face of it required legal advice. He further does not attach any supporting affidavit from the financial advisor who as he states in his founding affidavit had to investigate the circumstances surrounding his dismissal. In fact the affidavit from the financial advisor is essential because he/she may well have advised him to go and see a lawyer immediately or may, for that matter, have advised him of the time frame within which the application needed to have been made. There is also no indication how long it took the financial advisor to investigate the matter. There is also no supporting affidavit from his former attorney. The case of the Applicant is further not assisted by his averment that he consulted his attorney on the 24th October 2007, in that he does not explain why he did not file his review application earlier than the 29 October 2007.
Grounds for review
The grounds for review as set out in the employee’s founding affidavit read as follows:
“19. The Second Respondent committed misconduct in relation to his duties as arbitrator and/or gross irregularity in conducting the arbitration and/or exceeded his powers as arbitrator in one or more of the following respects:
He misconstrued the nature of the enquiry in the arbitration proceedings.
He failed to understand the issues that were in dispute at the arbitration and had regard to irrelevant matters.
He failed to apply his mind to the facts regarding the inconsistency of the Employer when imposing its sanction on me.
He disregarded, alternatively attached insufficient weight to the evidence presented by the witnesses of the Employer.
He failed consider the balance of probabilities on the evidence before him.
He failed to arrive at his findings and conclusions in accordance with the rules of evidence and made his findings arbitrarily and capriciously.
He failed to have regard to the submissions made on my behalf that were contained in my heads of argument.
The findings are not rational and justifiable having regard to the evidence before him.
He failed to have proper regard for the procedural requirements of a fair dismissal.
He ought to have dismissed the Employer’s case on the evidence.
20. In the premises, the applicant prays for the relief as set out in the Notice of Motion.”
In addition to the above criticism of the award the applicant contends that the award is unsustainable because of the following:
The Commissioner committed gross irregularity when he drew comparison between having a policy regarding receiving of gifts with whether a need exist to have a policy not steal.
The Applicant further contended that the policy that formed the basis of the rule for which he was accused of contravening was introduced after the event that led to the charges which were proffered against him. In other words the rule which formed the basis of the charges was not in existence at that time it is alleged that he committed the offence.
He did not give any advantage to a client who invited him to the golf event.
The disciplinary process was inconsistently applied in that another employee who committed the same offence was not like him dismissed but given a warning.
In his award the Commissioner found that while the Applicant did inform his manager that he would be attending a golf event, he did not disclose that he would be playing golf with a customer. He accepted the version of the Respondent based on the following:
At the disciplinary hearing the applicant said that he might have forgotten.
In his initial statement during the arbitration proceedings he did not mention the disclosure.
His immediate manager at the time testified that he did not disclose that e was going to play golf with a customer.
He persisted when confronted about the incident that he did not have to disclose because he had taken leave.
Evaluation of the award
In my view there are no prospects of success in the Applicant’s review application and for that reason alone the application should fail. The Applicant basis his prospects of success on the above grounds of review.
In terms of Section 145 of the labor relations act the grounds for review are; weather the commissioner; (a) committed a misconduct (b) gross-irregularity and (c) he or she has exceeded his or her powers in terms of the provisions of section 145 of the labor relations act
The test to apply when evaluating whether to interfere with an arbitration award is not whether the conclusion reached by the commissioner is correct but rather whether or not it is one which a reasonable decision-maker could not reach. See Sidumo & Another v Rustenburg Platinum Mines Limited & Others (2007) 28 ILJ 2405 (CC).
In assessing the award it is important to firstly have regard to the context that gave rise to the charges which were proffered against the applicant. Firstly, when confronted with the incident that led to his charges, he simply stated; “I took leave.” It would seem from the facts and circumstances of this case that he took leave to avoid having to disclose where he was going and why? He informed his immediate manager that he would be playing golf but never disclosed that such an event was sponsored by one of the Third Respondent’s customer.
The existence of the rule
As concerning the existence of the rule, the Applicant contended that document in terms of which the charges were formulated was only signed after the incident. This defense in my view is highly formalistic and technical and as will appear later in this judgment it is clear that the Applicant was aware that what he did was wrong and more importantly that he was aware of the rule governing his conduct and also knew what he was suppose to do once the gift was offered to him.
The issue of the defense put forward by the Applicant was fully canvassed with him by the commissioner. In this respect he conceded that if the commissioner was to find that he knew about the existence of the rule than he would be correct to find him guilty of the offence. When called upon by the Commissioner to summarize his defense the applicant stated the following:
“Mr. Chair it might be that the use some uh manual and documents when they state the code of ethics and everybody should actually know … (inaudible) that you don’t steal, there are certain things that you just don’t do and I think we all know that. And I think we are also more or less aware of uh in the position that we are in when you work with clients where we will receive gifts, where we will get invites to set an events. We will also invite our clients to Spoornet of Transnet events because it is part of our job to attend those events for certain reasons because we are in the marketing department. But I agree that those sort of events are there for disclosure and I also want to state to you as hopefully we will hear from the witnesses and as we have heard in the hearing that I did disclose all previous events, not in different disclosures than to this specific one which I have also disclosed on previous events. I did declare in the so-called register because we never declared it in that so-called register because nobody knew about this register. I can state that I learned, I saw this register the first time when we request that it in the previous hearing. And I also want to stay that my colleagues when also not aware of the register.”
Arising from the above the Commissioner enquired from the Applicant whether his defense was that he had disclosed the event or the gift to Third Respondent. His response was that he did disclose the event but did not declare it in the register. It was also in this context that the Commissioner suggested to him that he therefore ought to have known about the existence of the policy. His clarity on this point was that: “I was aware of the disclosure was part of the policy …”
It is also apparent from the record that the Commissioner took some time in trying to understand the defense of the Applicant. Initially, the defense of the Applicant was that he did not know about the rule and later shifted to the issue of disclosure. He stated in this regard that he disclosed the event in the same way that he did with the previous events. The submission made by the Applicant in clarifying his defense thereafter is quite instructive He stated that:
“I did disclose it although I did not declare it in this register that I must fill in because I was not aware of the register and so were we not aware for the past few years of the register. None of my colleagues put it in the register, they also disclosed to the manager, they never put it in the register. And I think the register I assume of which I see copies here the register can proof it.”
The Third Respondent in contending that the Applicant was aware of the policy prohibiting acceptance of gifts relied on the evidence of Mr Dedericks who testified that the Applicant accepted the invitation to attend the golf event in his personal capacity because if not there was no need for him to take leave as this would have been regarded as part of his duties. He further testified during cross-examination that it was possible for the applicant to influence decisions taken by the Third Respondent regarding the awarding of tenders because he was responsible for making recommendations to the line manager based on his contact with clients.
The other witness of Third Respondent was Mr Xaba, the line manager of the Applicant, testified that he became the line manager of the Applicant after the incident. He further testified that the Applicant was aware of the existence of the rule dealing with acceptance of gifts because he had previously disclosed a hunting trip and was given two days to attend without having to apply for leave. He further testified that he did not understand why it was necessary for the Applicant to have taken leave to attend the golf event of a client he was responsible for. His evidence was corroborated by that of Mr Dedericks, who testified that the Applicant could influence the rate to be given to a client as the decisions were, based on his recommendations.
Another important aspect relating to the Applicant’s knowledge of the rule arose during cross examination of Mr Xaba by the applicant. He started by asking Mr Xaba whether he was aware of the managers’ manual. Mr Xaba indicated that he was aware of the manual and that it came into existence during 2003. After asking him (Mr Xaba) about his knowledge of the contents of the manual he then put the following to him:
“So we all received it, we knew it was there, it was lying there. Some times if you have time or you want some specifics you go to it and you read it, it is fine. Because might also be and I am not so sure it might also be a new contract as you explain it, I am not sure if it is.”
Before moving away from the point put to Mr Xaba, the Commissioner sought clarity from the Applicant as to whether he understood what he had put to Mr Xaba and his answer was in the affirmative. The discussion between the Commissioner and the applicant concerning this issue indicate that the Applicant appreciated the significance of what he had put to the witness. The essence of what he had put to Mr Xaba was that he conceded knowledge of the existence of the rule and that he did receive the managers’ manual containing the rule. He confirmed having received the manual prior to the incident.
It is clear from the above discussion that the initial defence that suggested that the rule was not in existence at the time of the offence fell away. The defence that then followed was that he had disclosed the event to his manager but did not enter it in the register because at time the register was not yet in place. In my view it is apparent that the Applicant made a partial and selective disclosure to his manager. He disclosed that part of the information which is not significant to the objective of the rule governing gifts from customers. Whilst it may be accepted that he did disclose to his manager that he would be playing golf during his leave, he did not disclose that he would be playing with a customer which was to carry costs thereof. The circumstance of this matter point to the possibility that the Applicant knew that his manager would have disapproved him attending the event had he made a full disclosure. This has in it an element of dishonesty on the part of the Applicant.
The principles governing consistency
Du Toit Bosch et al in Labour Relations Law: A comprehensive Guide, puts as a general that the principle of consistency entails treating “like cases alike.” However, the learned authors accept that depending on the circumstances and the facts of given cases the employer may be justified in differentiating between employees who have committed similar offences. The differentiation according to the learned authors may be justified by the circumstances of the individual employees, such as the length of service and other factors.
The issue of consistency received attention by the Labour Appeal Court in the case of SACCAWU and Others v Irvin & Johnson (1999) 20 ILJ 2303(LAC), where at page 2313 (para 29) the Court held that:
“In my view too great an emphasis is quite frequently sought to be placed on the 'principle' of disciplinary consistency, also called the 'parity principle' (as to which see e.g. Grogan Workplace Law (4 ed) at 145 and Le Roux & Van Niekerk The SA Law of Unfair Dismissal at 110). There is really no separate 'principle' involved. Consistency is simply an element of disciplinary fairness (M S M Brassey 'The Dismissal of Strikers' (1990) 11 ILJ 213 at 229). Every employee must be measured by the same standards (Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union & others (1991) 12 ILJ 806 (LAC) at 813H-I). Discipline must not be capricious. It is really the perception of bias inherent in selective discipline which makes it unfair. . .”
The Court went further to say:
“If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or is induced by improper motives or, worse, by a discriminating management policy. (As was the case in Henred Fruehauf Trailers v National Union of Metalworkers of SA & others (1992) 13 ILJ 593 (LAC) at 599H-601B; National Union of Mineworkers v Henred Fruehauf Trailers (Pty) Ltd (1994) H 15 ILJ 1257 (A) at 1264.) Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape. Fairness is a value judgment. It might or might not in the circumstances be fair to reinstate the other offenders. The point is that consistency is not a rule unto itself.”
The ratio of Irvin & Johnson indicates clearly that in considering whether or not the employer had applied the discipline inconsistently, one of the important factors to take into account is the gravity of the misconduct committed by the employee pleading inconsistency. The gravity of the offence, in the present instance, may even outweighed consideration of length of service of the affected employee. This will be so in particular when dealing with an employee who because of his seniority ought to know the impact that his or her conduct may have on the relationship between him and the employer and more importantly other stakeholders in the employer’s business. In Gcwensha v CCMA & Others  3 BLLR 234 (LAC), the Court after accepting that disciplinary consistency is the hallmark of progressive labour relations and that every employee must be measured by the same standards, held that when comparing employees care should be taken to ensure that the gravity of the misconduct is evaluated.
In the present instance it is common cause that another employee was charged with the same offence, of attending the same golf event but was given a warning and not dismissed.
In defending the approach it adopted in dismissing the Applicant and not treating the other employee in the same way the respondent relied on the evidence of Mr Xaba who testified that the reason for the different sanctions was because the other employee was on a lower level as opposed to the Applicant who was a manager. He further pointed out that the function of the other employee was to implement decisions whereas the Applicant could influence decisions through his recommendations. The other difference between the two, is that the other employee was invited by a friend to the golf event. This in my view elevates the gravity of the offence committed by the Applicant to a higher level to that of the other employee.
The Commissioner in his award deals in details with the issue of consistency as was raised during the proceedings by the Applicant. In this respect the Commissioner can not be faulted for unreasonableness or failing to apply his mind as to whether the differentiation in the sanctions of the two employees was fair or not. In arriving at the conclusion that the application the sanction was not unfair the Commissioner took into account the following factors:
“(a) Whereas the former faced four charges, the latter faced two charges.
(b) Whereas the former was found guilty on two charges, the latter was found guilty on one charge.
(c) Whereas the former was a Senior Manager, the latter was a Junior Manager.
(d) Whereas the former made recommendation, the latter not. Also, the latter was not involved in negotiations with customers.
(e) Whereas the former was in fact that in his official capacity the latter was invited by a personal friend of his (they have been friends for 15 years).”
In my view the above indicates very clearly that the Commissioner applied his mind fully and properly to the different circumstances surrounding the case of each of the employees and came to the conclusion that it was fair and reasonable to differentiate as concerning the sanction to impose in the respective cases.
In the light of the above discussion I am of the view that the conclusion of the Commissioner cannot be faulted for being unreasonable or grossly irregular and therefore there exist no basis to review the award. I do not however, belief that it would be fair to allow the costs to follow the result.
In the premises the following order is made:
The application to review and set aside the arbitration award issued by the Second Respondent under case number BC.NEL/SP(HQ)GR/9813, dated 7th August 2007, is dismissed.
There is no order as to costs
Date of Hearing : 25th February 2009
Date of Judgment : 26th June 2009
For the Applicant : Mr M Scheepers of Marius Scheepers Attorneys
For the Respondent: Mr P Maserumule of Maserumule Attorneys