---

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

                        Case no: JR1894/12

In the matter between:

EMMANUEL RATSHIDITSWE MAEMA                                                                     Applicant

and

CCMA                                                                                                            First Respondent

M D MAHLAWULE N.O.                                                                          Second Respondent

FIRST NATIONAL BANK                                                                             Third Respondent

Heard:           10 March 2016

Delivered:     10 March 2016

EX TEMPORE JUDGMENT

WHITCHER J

[1] The applicant commenced employment with FNB in May 2005. At the time of his dismissal he occupied the position of a Senior Branch Manager. He was dismissed for theft, fraud and dishonesty in that he used the bank’s vehicle to transport staff to a training session but claimed for travelling expenses against his personal vehicle, and dishonesty in that he allowed his wife, a staff member, to take their baby and nanny to the six week training course and caused the bank to pay for the nanny’s accommodation in circumstances where the bank had no knowledge and had not granted permission for same.

[2] In his award, the second respondent (the commissioner) found the dismissal of the applicant procedurally fair, but substantively unfair, and awarded him compensation equivalent to ten month’s salary. This in circumstances where the applicant sought reinstatement.  

[3] The applicant now seeks to review the award on relief in terms of section 145 of the Labour Relations Act.

[4] Before I turn to the merits of the review, there is an opposed condonation matter that needs to be dealt with first. Following the filing of the record by the CCMA, the applicant took one year to file his supplementary affidavit. In my view, he has provided no reasonable explanation therefor. Accordingly, this review application falls to be dismissed on this point. However, in case I am wrong on this issue, I turn to the merits of the review application.

[5] In exercising his discretion on relief, the commissioner considered the provisions of Section 193 of the LRA and reasoned as follows:

“The applicant sought reinstatement as relief. I agree that reinstatement is the appropriate sanction under the circumstances. However it is common cause that he has been replaced, even before his appeal hearing was finalized. Mr Fourie argued that it was a matter of policy that positions had to be filled immediately. In awarding his desired outcome, I consider the fact that he was not entirely clean, though not sufficient to warrant dismissal’.

[6] In Quest Flexible Staffing Solutions (Pty) Ltd A Division of Adcorp Fulfilment Services (Pty) Ltd v Legobate,[1]  the Labour Appeal Court summed up the test the Labour Court is required to apply in a review of an arbitrator’s award as follows:

‘The test the Labour Court is required to apply in a review of an Arbitrator’s Award is this: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Our courts have repeatedly stated that in order to maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons others than those given by the arbitrator. The result will, however, be unreasonable if it is entirely disconnected with the evidence, unsupported by the evidence and involves speculation by the arbitrator. An award will no doubt be considered to be reasonable when there is a material connection between the evidence and the result or, put differently, when the result is reasonably supported by some of the evidence’. [2]

[7] I agree with the applicant that Fourie did not entirely discount the possibility of reinstatement. However, in my view, the commissioner’s finding that reinstatement would not be appropriate is nevertheless reasonable and justifiable in light of the following evidence on record and findings by the commissioner which have not been challenged in this review.

[8] The commissioner indicated that FNB was unable to establish that the applicant had the intention to defraud his employer, but in respect of the contents of this charge, at the very least the applicant was guilty of negligence, and in respect of the second offence, the applicant committed the allegations contained in the charge. Thus, although the commissioner found that the applicant’s conduct did not strictly coincide with the charges, the commissioner nevertheless found the applicant’s conduct wanting in a number of material respects. It is relevant that the nature of this conduct impacts on the trust relationship between an employee and employer.

[9] The company’s witnesses, Kobus van der Merwe and Lot Kobus, specifically testified that the employer can no longer trust the applicant because of his conduct and the manner in which he had conducted his defence.

[10] Since the ruling in Edcon, [3] the LAC has twice found that it is not, as an invariable rule, necessary to lead evidence to establish a breakdown in the trust relationship.[4] As a matter of substantive law, certain forms of misconduct by employees in certain positions and its consequences would destroy the employment relationship.

[11] In relation to the manner in which the applicant conducted his defence, the record reveals that the applicant stated during the arbitration that he does not trust FNB and suggested that the evidence against him was maliciously fabricated to orchestrate his demise (this included an allegation that his signature was forged by the bank). He further suggested that the FNB’s Chief Executive Officer is a dishonest individual who intends to mislead his followers. It is evident from the award, that the commissioner found no substance in these allegations. The Labour Appeal Court in Maepe v CCMA & others[5] in essence held that, where an employee held a position of trust prior to his dismissal, the manner in which the employee conducts his defence is relevant to the issue of relief.[6] The commissioner was clearly alive to the adverse and disrespectful attitude displayed by the applicant.  

[12] As submitted by FNB, all these factors must have influenced the commissioner’s thinking regarding not granting reinstatement as the primary relief, and they are all relevant material factors in relation to the issue of relief.

[13] The applicant pleaded that the commissioner was bias in favour of the FNB in respect of the relief granted. There is no merit in this claim. The applicant failed to even challenge the commissioner’s findings regarding his misconduct, which are relevant to the issue of relief. Moreover, not only did the commissioner find against FNB, but in doing so the commissioner made an award that FNB pays ten month’s salary in favour of the applicant.

Approbate and reprobate

[14] In light of the above findings by this court, there is no need to determine FNB’s submission that the review falls to be dismissed on the basis of peremption, that is, the principle that one may not approbate and reprobate. I will however deal with the point for the sake of completeness. 

[15] FNB paid the full compensation amount awarded to the applicant by the commissioner. The applicant has not returned the money. Despite FNB raising the issue of peremption in its pleadings, the applicant only tendered repayment of the money on the advice of his counsel on the day of this review hearing, that is, three years later. By his conduct, the applicant accordingly accepted performance of the award in the subject of review. This finding is supported by the following case law.

[16] In National Union of Metalworkers of SA and Others v FastFreeze,[7] the LAC held as follows:

“If a party to a judgment acquiesces therein, either express, or by some other unequivocal act wholly inconsistent with an intention to contest it, its right of appeal is said to be perempted, i.e. he cannot thereafter change his mind and note an appeal. Peremption is an example of the well-known principle that one may not approbate and reprobate, or to use colloquial expressions, blow hot and cold, or have one’s cake and eat it.”

[17] The Labour Court in Jusayo v Madau NO and Others,[8] held as follows:

‘[17]     … Its indicated and unreserved intention to comply with the order against it to pay the calculated amount of compensation to the applicant in compliance with the first respondent’s order precluded absolutely its right subsequently to contest the award in terms of which that order was made’.

[18] In light of the case law cited, it is not competent for an applicant to persist with a review application where he or she has already accepted performance of the compensation stated in the arbitration award. The applicant’s acceptance of the compensation, the only relief granted in the award, accordingly precluded his right to contest the relief awarded to him.

Order

[19]      The review application is dismissed with costs.

________________________________

Whitcher J

                                                                        Judge of the Labour Court of South Africa

APPEARANCES:

For the applicant: Adv Ford, instructed by Nkosi Noksana Inc

For the third respondent: Adv F Venter, instructed by Cowan-Harper Attorneys          

---