the labour court of South Africa
(Held at DURBAN)

CASE NO: D 305/2019
Not reportable

D 305.2019 Kloppers v N Khumalo N.O and Others (21 February 2022) 

In the matter between:

PAUL KLOPPERS	Applicant

and 

N KHUMALO N.O.	First Respondent

GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL	Second Respondent

DEPT OF AGRICULTURE AND RURAL
DEVELOPMENT	Third Respondent 

Date of hearing: 17 February 2022 

Date of judgment: 21 February 2022	

JUDGMENT

VAN NIEKERK J

[1]	The applicant seeks to review and set aside an arbitration award issued by the first respondent (the arbitrator). In her award, the arbitrator held that the applicant had been fairly dismissed by the third respondent.

[2]	The background facts are recorded in the award, and for present purposes it need only be said that the applicant was dismissed after a disciplinary hearing at which he was charged with committing an act of fraud in that he 

‘submitted a fraudulent matric certificate in order to secure a promotion as Control Engineering Technician, the verification that was conducted at Department of Education in Durban on the 10th August 2017 reveal that your certificate bearing registration number 13268 is fraudulent, you acted dishonestly’.

[3]	The wording of the charge assumed some significance during argument, and in essence the applicant’s case on review is that while the matric certificate referred to is of dubious origin, it was not submitted ‘in order to secure’ the promotion referred to. 

[4] 	In January 1997, the applicant had applied for and was appointed to the post of control electrical technician. In support of his application, he had submitted what purported to be a matric certificate issued by what was then the Transvaal Education Department, which the applicant concedes incorrectly reflected his matric symbols. The certificate indicates that the applicant has achieved D symbol in English (second language) and mathematics. It is not in dispute the statement of symbols received from the applicant’s school recorded that the applicant was awarded an E symbol for both subjects. It is also not in dispute that these were the symbols that the applicant obtained in the matriculation examination. The applicant later attended a Technical College where he rewrote mathematics at N3 (matric) level and achieved a mark of 55%, equivalent to a D symbol. At the time that the applicant applied for promotion to the post of control engineering electrician, the minimum qualification for the post was a national diploma in agriculture, which the applicant had by that stage obtained. Between 1997 and 2017, the applicant was promoted up the department’s hierarchy, and various verification exercises were conducted by the department into the qualifications submitted by its employees, none of which raised any concern about the integrity of the applicant’s matric certificate. That changed in 2017 when after a verification exercise, the department concluded, for a number of reasons, that the matric certificate that the applicant had submitted in support of his bid for promotion to control engineering electrician was a forgery. The applicant was subsequently charged in the terms reflected above, found guilty and dismissed.  

[5]	In her analysis of the evidence, the arbitrator recorded the following: 

14  The applicant admitted to have submitted a certificate with results which are different to those in the statement of results. However, he argued that this was not done deliberately and that he had no intentions of defrauding the Department…In this case, the applicant did not deny the difference between the statement of results and matric certificate.

15.	Furthermore, in his cross-examination he stated that he did not use the senior certificate when he first applied for work in 1982 because he had ‘scrutinised it”. I therefore cannot accept that submitting the certificate when applying for a promotion in 1996 was done unintentionally. The applicant did not attach the certificate 20 applied to rejoin the Department in 1991 but only chose to use it for a promotional post. Why did he then see a need to attach it when he applied for the promotion in doing so will not only amount to a misrepresentation but also to fraud. 

[6]	The arbitrator found that on the applicant’s own version, ‘he knew there was something wrong with the certificate after he had scutinised confirms that he was award of the problem. That should have triggered him to seek clarity at that stage and not simply ignore it. The Applicant submitted this fraudulent certificate and is therefore liable for it.’ 

[7]	On this basis, the arbitrator upheld the applicant’s dismissal. 

[8]	The applicant submits that the arbitrator’s award is reviewable on account of an irregularity committed by the arbitrator in her assessment of the evidence, and thus in reaching the conclusion that she did. As I have indicated, the basis for review is narrow – the applicant submits that the charge brought against the applicant necessarily linked the submission of the certificate to the application for the position of control engineering technician. Since it was common cause that the applicant possessed the required minimum qualification for the post (it being undisputed that the applicant had completed the matriculation examination and possessed further tertiary qualifications), it cannot be said that the applicant committed any fraud in order to secure promotion to the post concerned. Put another way, the applicant possessed all of the minimum qualifications for appointment when he applied for the post in 1996 and therefore did not present the certificate in question to obtain a promotion. 

[9]	The test to be applied in review applications is clear. This court may intervene if and only if the applicant establishes that the decision to which the arbitrator came was so unreasonable that no reasonable decision-maker could come to it. In a matter such as the present, where the applicant relies on what are contended to be reviewable irregularities in the assessment of the evidence, the court must be cautious to ensure that the line between an appeal and a review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA [2014] 1 BLLR 20 (LAC)), the Labour Appeal Court noted that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process related irregularity sufficient to set aside the award. The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgment). Specifically, the questions for a review court to ask are whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that he or she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with substantial merits of the dispute and whether the decision is one that another decision maker could reasonably have arrived at based on the evidence (see paragraph 20). In short, when an arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21). As the courts have noted, the review test sets a high threshold, one that will not often be met. (On the policy of permitting the right of review as opposed to a broader right of appeal, see Booi v Amathole District Municipality & others (2022) 43 ILJ 91 (CC) at [50]).

 [10]	In his evidence in chief, the applicant’s legal representative asked him whether he was aware that the document he submitted when he applied for the post was an accurate reflection of his matric symbols. The applicant’s response was the following: 

You know when I started off with the department, I had the document in my possession and I saw the discrepancy between that document and the statement of symbols. And I worked on the basis that if you err you err on the safe side and that’s why I used my statement of symbols that I received from school that is a true reflection of my matric results and the certificate I received from the Technical College of Germiston.…I have done so as well after I returned back to the department on my application for starting in 1991. In 1991 I also used my statement of symbols and my Maths that I approved through the Germiston Technical College

[11]	The applicant had conceded during examination in chief that at the time he applied for the post he did not know why he submitted the certificate, and accepted that the document was not an accurate reflection of his results. He stated that his mother had given him the certificate in 1979, which he regarded as an original document, while being aware that it did not represent a true reflection of his results. This version changed under cross-examination, when the applicant stated that he did not notice the discrepancy and assumed that the certificate would reflect the same results as the statement of symbols. Under further cross examination, the applicant stated that when he initially applied for employment with the department in 1983, he submitted his statement of symbols and had not submitted his senior certificate because he noticed that the marks were different. 

[12]	In relation to the application in 1996, the applicant stated the following: 

And then in 1996 then came the advertised post for control and I wrote my applications out for that so that was compiling CV’s again and putting documents together again. So in this muddle with all of this I have put in the senior certificate which IO am truly sorry for. If I sit down and think about this, I should never have done that. And if I had time to clearly think and consider these things I wouldn’t have done it. So that is what I can project to you is what happened during that period of my life in 1996. 

[13]	Although the minimum qualification for the post into which the applicant applied to be promoted was a history qualification, it was necessary for the purposes of the application to submit a matric certificate which in all probability, is the reason why the applicant submitted the incorrect certificate rather than his statement of symbols. It is clear from the above passages that on the applicant’s own version, he was aware that the matric certificate that he submitted incorrectly reflected the symbols that he had actually obtained in the matriculation examination and in the circumstances, I fail to appreciate how it can be said that the arbitrator’s finding that the applicant was aware that there was ‘something wrong’ with the certificate and that he ought to have sought some clarity at the relevant stage, is a decision  that falls outside of the band of decisions to which a reasonable decision-maker could come on the evidence. 

[14]	In short, the restrictive interpretation that the applicant’s representative urges me to adopt is not appropriate or otherwise justifiable in circumstances where on the applicant’s own version, he submitted a matric certificate that he knew to be false in support of an application for promotion. That a matriculation certificate was not the minimum qualification that applicants for the position were required to possess, does not change the fact that in support of his application for promotion, the applicant included the false certificate. The arbitrator clearly recognises that had the applicant not attached the false certificate to his application for promotion, no charges would have been brought against him. The fact remains that the applicant chose to attach the certificate, knowing full well that its status was dubious, to say the least. The applicant cannot escape the consequences of his decision by arguing now, at the point of review, that the arbitrator committed any irregularity by refusing to overlook his conduct on the basis that he in any event possessed the tertiary qualifications necessary for appointment to the post.

[15]	The arbitrator applied her mind to the evidence, she applied the correct test to determine the fairness of the applicant’s dismissal and the conclusion to which he came on the available evidence falls within a band of decisions to which a reasonable decision-maker could come on the available evidence. The application for review thus stands to be dismissed.

[16]	In relation to costs, the court has a broad discretion to make orders for costs according to the requirements of the law and fairness.	The court ordinarily does not make orders for costs against aggrieved individuals who seek recourse, in good faith, to remedy a perceived wrong. This case falls into that category.

I make the following order:

1.	The application is dismissed.

André van Niekerk
Judge of the Labour Court of South Africa. 

APPEARANCES

For the applicant: 	Adv AJ Nel, instructed by Dean Caro

For the third respondent: 	Adv D Pillay
Instructed by: 	The state attorney.