---

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 2423/11

In the matter between:

BIFAWU OBO L RATSHISUSU                                                                                    Applicant

and

THE CCMA                                                                                                    First Respondent

LINDOKUHLE DLAMINI                                                                          Second Respondent

INNOVATION GROUP                                                                                  Third Respondent

Heard:           11 July 2014, 16 July 2014, 22 August 2014 and 6 October 2014

Delivered:    29 November 2016

JUDGMENT

ROBB AJ

Introduction

[1] The Applicant seeks to review and set aside an Arbitration Award issued by the Second Respondent on 12 August 2011 under Case Number GAJB 33023/10. The Arbitrator found that the decision of the Third Respondent to dismiss the Applicant was justifiable on a rational ground and was based on a fair reason.

[2] The Third Respondent opposed the application.

[3] A preliminary matter required to be dealt with before the merits of the matter could be considered. On 26 July 2013, Masipa AJ ordered the Third Respondent to deliver a condonation application, having struck the Third Respondent's "conditional condonation application" off the roll.

[4] I will deal first with the condonation application.

The third respondent's condonation application

[5] In her ruling, Masipa AJ (as she then was) found that the answering affidavit of the Third Respondent was filed eight days late, i.e. on 24 July 2012 instead of by 16 July 2012. In this regard, the Third Respondent argued that there was no necessity for a condonation application since the eight-day period in question related to the filing of the answering affidavit in the Court file and there was no requirement in the rules as to when the original must be filed in the Court file. The Third Respondent also relied upon paragraph 11.4 of the Labour Court Practice Directive (which came into effect on 1 April 2013), which provides that where an opposing or replying affidavit is delivered outside of the time period provided by the rules there is no need to apply for condonation unless a notice of objection is served and filed within 10 days. There is no merit in either of these arguments raised by the Third Respondent. A respondent is afforded 10 days to deliver its answering affidavit; delivery entails service and filing. The Labour Court Practice Directive was not in existence in 2012. In any event, Masipa AJ has ordered that the Third Respondent must seek condonation and as a consequence, this Court must consider the condonation application brought by the Third Respondent in light of Masipa AJ's order.

[6] I am satisfied, however, that the Third Respondent has made out a satisfactory case for condonation. The lateness in question of eight days is slight and relates solely to the filing of the answering affidavit in Court on 24 July 2012 instead of by 16 July 2012. The answering affidavit had been timeously served on the Applicant's representatives on 16 July 2012. There was no prejudice of any nature occasioned to the Applicant in relation to the date of filing the affidavit in Court, and in such circumstances, it would not be in the interests of justice or fairness to deny condonation. In addition, as will appear from what is set out below, the Third Respondent's prospects of success in opposing the Applicant's review application were good.

The background facts

[7] The Applicant was employed by the Third Respondent as a Specialist: Dealer Accreditation. He commenced employment with the Third Respondent on 1 February 1993 and was dismissed on 18 November 2010. The charges levelled against the Applicant were categorised as: "Dishonesty; Gross Negligence; Failure to adhere to the company's laid down procedures, policies, rules and regulations; Do something detrimental to the company, its efficiency or discipline. Breach of employee's duty of good faith and trust to the company. Conduct unbecoming of Company employee"

due to the following:

‘The accused failed to realise that a letter that was sent to the company on behalf of Jaguar Centurion and Jaguar Bryanston was falsely indicated as being owned Loving Care Dealers and the request was to change the name and banking details for both branches.  This resulted in a fraudulent payment in access (sic) of R180 000.00.’

[8] The chairman of the disciplinary inquiry found the Applicant guilty of the following:

8.1      gross negligence;

8.2      failure to adhere to the company's laid down procedures, policies, rules and regulations; and

8.3      doing something detrimental to the company, efficiency or duty of good faith and trust to the company (conduct unbecoming of company employee).

[9] The chairman of the disciplinary inquiry could not determine from the information before him whether the accused acted with the intent to defraud the company and he was accordingly found not guilty of a charge of dishonesty. The chairman considered the financial damage caused by the Applicant's actions which he found to be an aggravating factor and thereafter he recommended the dismissal of the Applicant as a fitting sanction. The Third Respondent duly dismissed the Applicant.

[10] The charges are poorly drafted. I am satisfied, however, that findings in respect of gross negligence and a failure to adhere to company procedures, policies, rules and regulations does not constitute a splitting of charges. The third finding under 8.3 above is in the nature of aggravating circumstances, and is not a finding on a charge per se.

[11] At the arbitration held on 8 July 2011 and 21 July 2011, the arbitrator (the Second Respondent) heard the evidence of three witnesses on behalf of the Third Respondent, and thereafter the evidence of the Applicant. The underlying facts upon which the charges levelled against the Applicant were based were that the Applicant, in his position as a Specialist: Dealer Accreditation, received a request to change banking details in respect of two existing clients, Jaguar Centurion and Jaguar Bryanston, into the name of LCD Motors. The request emanated from a certain Simon Makubela. The Applicant thereafter changed the banking details of Jaguar Centurion, but not Jaguar Bryanston. In making the change, he did not follow the procedure which he was required to follow as set out in a process flowchart and did not ensure that the necessary information was received from LCD Motors to make the changes, despite having advised LCD Motors what he required in that regard. For example, the letter received from LCD Motors did not contain a VAT number.

[12] As a consequence, after the Applicant changed banking details without following the established procedure, and without verifying the information provided to him by LCD Motors, the Third Respondent was defrauded and suffered a loss of R180 000.00. The Applicant, in his evidence, denied that the change of banking details required the process flowchart to be followed but admitted that when he received the letter from the LCD Motors representative he was under pressure and that in hindsight the whole incident was a bona fide mistake.

[13] The arbitrator, in his analysis of the evidence, highlighted that the Applicant had made changes to the banking details without receiving what was required in order to process the changes, key amongst them being the VAT number. The arbitrator referred to the fact that having requested such details from LCD Motors, the Applicant decided to proceed with the changes after having received a letter that did not contain such details. The Applicant maintained that the letter from LCD Motors was not from a new dealer since it had the symbol and the name "Jaguar" at the top. The arbitrator pointed out that the words "Loving Care Dealers (Pty) Limited" was clearly visible on the letterhead and that the contents of the letter clearly stated that the request for changes was made by LCD Motors (Pty) Limited, an entity which did not exist in the database of the Third Respondent. The arbitrator concluded that on the basis of the submissions and evidence before him it was clear that the decision of the Third Respondent to dismiss the Applicant was justifiable on a rational ground, was done based on a fair reason and concluded that the Applicant's dismissal was both procedurally and substantively fair.

Grounds of review

[14] The grounds of review relied upon by the Applicant were set out in a copy of a handwritten document which was both extremely difficult to read and largely illegible. In addition, the record of proceedings was defective as certain documents had been excluded from the bundle of documents by the Applicant. This resulted in this Court having to postpone the matter in order to enable the legible original review application to be filed, and in order to enable the Applicant's representative to produce a comprehensive and properly paginated and indexed set of papers since the Applicant's initial attempt was woefully inadequate and not in accordance with the Rules.

[15] The Applicant contends that the arbitrator did not apply his mind to the evidence and that his conclusion was irrational on the following grounds:

15.1      he admitted a mixture of reasons when confusing which workplace’s rule must apply in this case;

15.2      he excluded relevant evidence relating to the previous disciplinary inquiry record on the basis that the CCMA arbitration process was a hearing de novo and disallowed cross-examination of the company's witnesses;

15.3      he was biased in that he failed to find that the person presiding over the disciplinary hearing was biased and had found the Applicant guilty despite the lack of hard evidence to prove him guilty.

[16] As further grounds of review, the Applicant contended that the arbitrator deliberately disregarded the fact that dismissals have to be in writing and that the arbitrator disregarded the fact that the Third Respondent followed incorrect procedures for dismissing him by allowing the disciplinary inquiry to be prosecuted by a labour consultant.

Test on review

[17] It is trite that the test on review is whether the conclusions reached by the arbitrator were so unreasonable that no other arbitrator could have come to the same conclusion. In the landmark decision of Sidumo and Another v Rustenburg Platinum Mines Limited and Others (Sidumo)[1] the Constitutional Court held, inter alia, that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision-maker could make.

[18] In Fidelity Cash Management Services v CCMA and Others[2] Zondo JP applied the Sidumo test as follows :

‘The test enunciated by the Constitutional Court in Sidumo for determining whether a decision for arbitration awarded by a CCMA Commissioner is reasonable is a stringent test that will ensure that such awards are not likely interfered with. It will ensure that, more than before, and in line with the objectives of the Act and particularly the primary objective of the effective resolution of disputes, awards of the CCMA will be final and binding as long as it cannot be said that such a decision or award is one that a reasonable decision maker could not have made in the circumstances of the case.  It will not be often that an arbitration award is found to be one which a reasonable decision maker could not have made but I also do not think that it will be rare that an arbitration award of the CCMA is found to be one that a reasonable decision maker could not, in all the circumstances, have reached.’[3]

[19] Turning to the specific grounds for review raised by the Applicant, I am satisfied that the arbitrator applied his mind to the evidence before him and that his conclusions were rational. The specific grounds of review raised by the Applicant that the arbitrator admitted a mixture of reasons, excluded relevant evidence, and that he was biased in failing to find that the person presiding over the disciplinary hearing was biased, are all without merit. The further grounds of review, that the dismissal had to be in writing and that a labour consultant instituted disciplinary action against him, have no merit whatsoever either.

[20] The conclusion that the arbitrator reached on the evidence before him is one that a reasonable decision-maker not only could have come to, but would have come to. The arbitrator's award is not open to review.

[21] I see no reason why costs should not follow the result in the main application. Such costs include the costs occasioned by the appearances on 11 July 2014, 16 July 2014, 22 August 2014 and 6 October 2014, but not for the appearance on 12 July 2013 before Masipa AJ in which she ordered costs to be in the cause. Since I am not ordering costs in respect of the condonation application, the costs of 12 July 2013 are not ordered since that appearance related solely to the condonation application.

Order

[22] I order that the application for review is dismissed with costs in the main application, as set out above.

___________________________

            Nicholas Robb

Acting Judge of the Labour Court of South Africa

APPEARANCES:  

FOR THE APPLICANT:                   Mr M Nhlapo of BIFAWU

FOR THE RESPONDENT:              Mr J L Pienaar of Louw Pienaar Attorneys

---

---