Janse van Rensburg v Transnet Soc Ltd and Others (JR1032/13)  ZALCCT 36 (18 July 2014)
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REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT OF INTEREST TO OTHER JUDGES
CASE NO: JR1032/13
In the matter between:
CHRISTINA HENDRINA JANSE VAN RENSBURG Applicant
TRANSNET SOC LTD First Respondent
TRANSNET BARGAINING COUNCIL Second Respondent
JOSEPH TSABADI NO Third Respondent
Heard: 11 July 2014
Delivered: 18 July 2014
 This is a review application in which the applicant (“the employee”) seeks to review and set aside the arbitration award of the third respondent (“the arbitrator”), sitting in pre-dismissal arbitration proceedings in terms of section 188A of the Labour Relations Act 66 of 1995 (“the LRA”).
 The employee was charged with misconduct by her employer (Transnet), the gist of which is that she allegedly disclosed confidential information to a bidder in tender proceedings that had not yet been finalised, in breach of various provisions of Transnet’s tender procedures and disciplinary code. The employee denied having made any such disclosure.
 The parties consented to pre-dismissal arbitration proceedings under the auspices of Tokiso, who appointed the arbitrator to deal with the matter.
Arbitrator’s findings on sanction
 After hearing evidence on the merits, the arbitrator issued an award in which he held that the employee was guilty of the misconduct complained of. The arbitrator then imposed a sanction of summary dismissal.
 The common understanding between the parties was that, in accordance with normal practice, the question of merits and sanction would be dealt with separately, with evidence and argument in respect of sanction only to be dealt with in the event of, and subsequent to, a finding of guilt on the merits. The arbitration proceeded largely on this basis, and while some witnesses of the employer mentioned factors relevant to sanction in their evidence, no evidence was presented by the employee relating to sanction. In the replying submissions in argument, the employee’s representative made it clear that the question of sanction was to be dealt with separately to and after a finding on the merits.
 Despite this clear understanding, the arbitrator proceeded to consider the question of sanction, and even went as far as listing facts in mitigation allegedly submitted by the employee, when the record indicates that no such evidence was submitted.
 The review test to be applied is the normal test for review of arbitration awards. See LRA s188A (8).
 In my view, the arbitrator, in determining the issue of sanction despite it being clear that the understanding between the parties was that it would be determined separately, after (and only in the event of) a finding of guilt, and after an opportunity to present evidence and submissions relevant to the question of sanction, deprived the parties of a fair trial in this regard, and that this renders the award (in respect of sanction) defective and subject to review.
 In its answering affidavit in the review proceedings and in argument, Transnet proposed that the matter be referred back to arbitration on the question of sanction only. The employee sought a review of the entire award, on various grounds. I now turn to consider whether the award in respect of the merits is also reviewable.
Arbitrator’s findings on the merits of the misconduct charges
 The key issue for determination was whether the employee communicated to T-Net Systems (T-Net), a supplier to Transnet who had submitted tender bids for various contracts, that its bids were to be rejected by the Tender Board as its BBB-EE verification was not in order.
 The employee was employed as a contract manager (check) at Transnet’s Komatipoort depot. She was involved in the tender process in respect of certain tenders relating to this depot. Aaron Mabena (“Mabena”) was managing the tender process.
 The tenders in question were of some urgency, and were due to be considered by the tender adjudication board on Monday 27 February 2012. On Friday 24 February 2012, Mabena informed the employee that she would need to come to his office to sign an updated tender recommendation, and that the results of the bidding process had to be amended, as it had come to light that T Net’s BBB-EE verification was not in order, as its verification company was not approved by the regulatory authority. This meant that T Net’s BBB-EE scoring would be reduced and the result was that it no longer ranked first in the list of recommended bidders.
 Shortly after this information was disclosed to the employee, Mabena received a telephone call from Riaan Talma (“Talma”), a director of T Net. Talma informed Mabena that he had heard that T-Net’s bids were to be rejected as a result of a problem with its BEE accreditation, and asked Mabena what could be done about it. T Net also contacted Lungile Xaba (“Xaba”), Mabena’s manager, later that afternoon with the same query.
 This leak of information to a bidder in a formal tender process, before the tender was determined or awarded, had the result that Transnet cancelled the process and began afresh, because of the breach of tender procedures.
 Transnet appointed an internal investigator who obtained statements from Mabena, Xaba, the employee and Talma. Transnet then instituted disciplinary proceedings against the employee, accusing her of being responsible for the leak. The employee denied having disclosed the information to T-Net. This was the central issue for determination by the arbitrator at the pre-dismissal arbitration proceedings.
 The following facts were common cause or undisputed:
16.1 Shortly before noon on Friday 24 February 2012, Mabena informed the employee of the problem with T Net’s BBB-EE accreditation, and that she would need to sign amended tender recommendation documents in which T-Net would no longer be reflected as the top bidder.
16.2 At 12h09, the employee telephoned Talma.
16.3 At 12h20, the employee sent an SMS to Talma, with Mabena’s contact details.
16.4 At 12h22, Talma telephoned Mabena, and inquired about the problems with T Net’s BBB-EE accreditation.
16.5 Mabena informed Talma that as the tender had not yet been awarded, it would be improper to discuss this type of an issue with a supplier.
16.6 During the course of the Friday afternoon, the employee telephoned Talma again, and also sent him the contact details for Lungile Xaba (Xaba), Head of Procurement Operations and Mabena’s senior.
16.7 Phillip Burger, a director of T Net, telephoned Xaba to discuss the alleged defect in its BBB-EE accreditation.
16.8 At 2:37 pm, Talma sent Xaba an email complaining that ‘It is with disappointment that we learnt that Transnet rejects our BBBEE certificate…’
16.9 At 3:31pm, Talma sent Xaba an email with documents confirming that T Net’s BBB-EE accreditation was valid.
16.10 As a result of the disclosure of information to a competing bidder prior to the completion of the tender adjudication process, the tender was put on hold.
 The inference that Transnet sought to draw from the above facts, is that it is likely on the probabilities that the employee disclosed the information to Talma. The employee flatly denied this, and presented an alternative theory to explain the source of the leak:
17.1 Talma stated that he received the information from a T-Net employee, Lukise Mahlangu, who was visiting Transnet’s Kilner Park offices to check the notice board on which tenders were communicated, and by chance overheard a Transnet employee stating in a conversation that ‘T Net Systems has been rejected on some tenders, based on an assessment that our BBBEE Certificate is not SANAS underwritten, because the verification agency is not accredited with them.’
17.2 Talma then contacted the employee (as she was T Net’s only contact at Transnet) to ask what the problem was. The employee stated that she was not allowed to provide any information, and that T Net could take up the matter with Mabena or his boss, Xaba, and duly provided him with their contact details.
17.3 The employee explained that the only reason why she would have telephoned Talma at 12:09 or at any time earlier than that would have been to discuss other on-going projects of T Net at Transnet, of which she was project manager. Telephone calls after that time could have related to providing Talma with the contact details of Mabena and Xaba, and also following up with him as to whether Mabena had been able to assist him.
17.4 The employee explained that she attended at Kilner Park to meet with Mabena in order to obtain a gazebo for use at an athletics event over the coming weekend. She and Mabena were active in the Transnet Athletics club, and Mabena had the key to a store where the gazebo was kept. She stated that Mabena told her about the problem with T Net’s accreditation while they were walking through the foyer of the building.
17.5 On the employee’s version, it was thus probable that Mahlangu could have overheard the conversation and obtained the information that he then relayed to Talma. There were a number of people in the foyer, and as she and Mabena were talking in normal tones, their conversation could easily have been overheard.
 Transnet submitted the following evidence in support of its version of events, which was disputed by the employee:
18.1 Mabena testified that he told the employee about T Net’s accreditation issue in a telephone call shortly before midday, and also asked her to come to his office urgently to sign the amended tender recommendation documents.
18.2 Mabena denied that he walked through the foyer with the employee (or discussed the issue in public) – his recollection was that they met at the store to look for the Gazebo.
18.3 Mabena testified that when Talma called him, he stated that the employee had provided him with the information. Talma denied this, and explained that he stated that the employee had provided his contact details.
18.4 Mabena testified that the employee undertook to come and sign the amended papers later as she had to attend to an urgent errand. When he (in the presence of a colleague, Dumisane Ngwetshe, who confirmed this) telephoned the employee later that afternoon to query when she would come in to sign the amended documents, the employee complained that too much emphasis was placed on BEE scores, over contract price.
18.5 The investigator, Siya Dayile (“Dayile”), could find no evidence of Mahlangu having entered Transnet’s Kilner Park premises on that day. Although the systems are not infallible, if Mahlangu had entered by vehicle (which Talma testified to) then it is likely he would have signed an access register at one of the entrance gates.
18.6 Transnet raised doubts as to whether T Net employed a person of this name. Talma testified that Mahlangu was employed at the time, and did attend at Transnet, but could not provide evidence at the arbitration, as he had been missing from duty since April 2012, and was presumed to be deceased. T Net did not provide any documentary proof of Mahlangu’s employment, but Talma testified that such records were available.
 Faced with these conflicting versions, the arbitrator was tasked with assessing which version was more probable on the evidence before him. The arbitrator concluded that, on the probabilities, the employee had made the disclosure to Talma. This was a matter in which the arbitrator was tasked with determining what the facts were, and in doing so, had the ‘right to be wrong’. See Dumani v Nair and Another 2013 (2) SA 274 (SCA) at paras 26-33, Telcordia Technologies Inc v Telkom SA Ltd  ZASCA 112; 2007 (3) SA 266 (SCA) at para 85. It follows that a court sitting on review may not interfere with such findings unless the stringent requirements of the review test are met.
 In my view, this conclusion is one that a reasonable arbitrator could have reached, on the evidence before him. The award is justifiable in relation to the evidence presented. It is a finding on the probabilities, that one competing version of events is more likely than another. I am inclined to agree with the correctness of the finding, as the version of Mahlangu overhearing such a detailed conversation at the very moment the key information was being relayed, seems somewhat far-fetched to me. It seems more probable that the information was conveyed to Talma by the employee, in the course of the telephone conversation with him, that took place shortly after her telephone conversation with Mabena, and a few minutes before Talma telephoned Mabena.
 A criticism directed at the award was that the arbitrator placed greater emphasis on hearsay evidence than on the direct evidence of Talma and the employee. In my view this does not constitute a reviewable irregularity, for the reasons stated by Wallis AJ (as he then was) in Naraindath v CCMA and Others  6 BLLR 716 (LC) at paras 26 and 27. In Naraindath, the arbitrator elected to take into account evidence presented at the disciplinary inquiry in rejecting the veracity of a version before him. On review, the applicant complained that the arbitrator’s conduct in basing the finding on hearsay evidence (which was preferred to direct evidence) amounted to a reviewable irregularity. Wallis AJ undertook a detailed analysis of the duties of arbitrators in conducting statutory arbitrations in terms of the LRA, and held that:
‘It would stultify the entire purpose of the legislation if this Court were, in the face of such clearly stated intentions, to insist on arbitrators appointed by the CCMA to resolve unfair dismissal disputes conducting those proceedings in slavish imitation of the procedures which are adopted in a court of law and subject to the technical rules of evidence which apply in those courts. Such an approach is in my view contrary to the express provisions of the LRA. Section 138(1) is the decisive provision in this regard. It empowers the commissioner to conduct the arbitration in such manner that the commissioner considers appropriate in order to determine the dispute both fairly and quickly. Lest the commissioner is under any misapprehension as to what is required the section goes on to direct that he or she discharges his or her functions “with the minimum of legal formalities.
In my view it is perfectly clear in these circumstances that a complaint that a commissioner has conducted proceedings in a way which differs from the way in which the same dispute would be dealt with before a court of law cannot as such succeed…’.
 A further complaint was that the arbitrator conflated the charges of misconduct, in that he failed to deal with the two separate charges in any meaningful way. In my view this does not constitute a reviewable irregularity – the charges are inelegantly framed, but the key complaint in both is clear – that the employee disclosed confidential information relating to a tender, to a competing bidder, prior to the tender being awarded. It is clear from the award that the arbitrator considered this issue and applied his mind to it, and reached a conclusion on it.
 In my view, the extent to which such a disclosure contravenes tender rules or the code of conduct (it is common cause that it would amount to misconduct), and the impact of the conduct on the trust relationship, can properly be dealt with in an assessment of evidence and submissions on an appropriate sanction to be imposed.
 I do not think it would be appropriate to set aside the entirety of the award on review, given that both parties were allowed a full hearing on the issue of whether the employee made the disclosure, and my finding that the arbitrator’s conclusion on this issue is reasonable.
 This court has previously referred a matter back to pre-dismissal arbitration for the hearing of evidence on sanction only. See Chetty v Transnet Bargaining Council, Case JR 2668/11, Unreported decision of the Labour Court (per Van Niekerk J), delivered on 27 March 2013.
 I am not in a position to consider substituting the decision on sanction, as the parties have not been granted an opportunity to present such evidence at arbitration.
 In terms of section 162 of the LRA, this court has a broad discretion to make costs orders on the basis of the requirements of law and fairness. I am inclined not to make a costs order. The employee enjoys partial success on review, in that the award on sanction is set aside, but this relief was effectively tendered by Transnet in the answering affidavit in the review proceedings. Accordingly, in my view it would be fair not to make any order as to costs.
 The following order is made:
28.1 The arbitration award issued by the third respondent under the auspices of the second respondent under case number Tokiso 1444 is reviewed and set aside only to the extent that the award determines a sanction to be imposed on the applicant.
28.2 The matter is remitted back to the second respondent for an arbitrator other than the third respondent to consider an appropriate penalty to be imposed for the misconduct found to have been committed by the applicant.
28.3 The parties to the arbitration must be given the opportunity to submit evidence and make submissions as to the appropriate sanction to be imposed.
Acting Judge of the Labour Court of South Africa
For the Applicant: Advocate E van Graan SC,
Instructed by: Rudolf Kuhn Attorneys
For the Respondents: Mr P Maserumule, Maserumule Inc.