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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

case No: JR 1106/16

In the matter between:

LERATO MOIRA BOGOSHI                                                                               Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION                                                                                             First Respondent

BONGANI KHUMALO N.O. (AS COMMISSIONER)                                      Second Respondent

SERVICES SECTOR EDUCATION AND TRAINING

AUTHORITY (SERVICES SETA)                                                                       Third Respondent

Heard:           2 December 2020

Delivered:     02 August 2021

Summary:    CCMA arbitration proceedings – review of proceedings, decisions and awards of commissioners – s 145 of LRA 1995 – determination of conduct of arbitrator, gross irregularities and reasonable outcome

Peremption – principles considered – Court already disposing of employee’s automatic unfair dismissal claim based on protected disclosure – employee acquiescing in order and reverting to CCMA – employee not permitted to raise same issue on review again

Dismissal – dishonesty – principles considered – conduct of employee constituting dishonesty – employee offering number of false justifications / explanations for receiving payment – dismissal justified

Dismissal – disseminating false information to third parties – conduct for ulterior purposes and intended to undermine management – employee not complying with internal processes – dismissal justified

Dismissal – fiduciary duty of employee – principles considered – employee senior manager – contravened fiduciary duty towards employer – constitutes serious misconduct – dismissal justified

Dismissal – procedural fairness – failure to comply with disciplinary code in giving outcome in 24 hours – failure not on material issue – no prejudice of employee – overall fair disciplinary hearing – no procedural unfairness shown

Dismissal – procedural fairness – employee’s right to appeal – employee needs to request appeal – not unfairness where appeal never requested – no procedural unfairness shown

Dismissal – appropriate sanction – dismissal justified for dishonesty, lack of remorse and break down of trust relationship – sanction of dismissal fair

Review of award – conclusion of arbitrator correct and/or reasonable – arbitration award upheld – review application dismissed

Costs – principles considered – costs award against employee justified

JUDGMENT

SNYMAN, AJ

Introduction

[1]            The applicant has brought an application to review and set aside an arbitration award issued by the second respondent in his capacity as an arbitrator of the Commission for Conciliation, Mediation and Arbitration (CCMA), the first respondent. It is a rather old matter, which arose from the applicant’s dismissal by the third respondent as far back as 3 March 2014. There was intervening Labour Court litigation, resulting in the matter remitting back to the CCMA for arbitration, where the merits were ultimately decided. As a result, arbitration was only concluded in the CCMA in 2016, and in an arbitration dated 2 March 2016, the second respondent found that the dismissal of the applicant by the third respondent was substantively and procedurally fair, which is the determination the applicant is seeking to challenge in this application. The review application has been brought in terms of section 145 of the Labour Relations Act^[1] (the LRA).

[2]            Even though the applicant’s notice of motion asks for substitution of the arbitration award of the second respondent in the event of a successful review, that relief is not borne out by the founding affidavit, and the argument ultimately presented by the applicant in this Court. In the founding affidavit, the applicant seeks relief to the effect that the matter be remitted back to the CCMA de novo before another arbitrator, which is the same consequential relief asked for in argument.

[3]            According to the applicant, she received the arbitration award of the second respondent on 24 March 2016. The applicant’s review application was filed on 2 June 2016, which is outside the six weeks’ time limit as contemplated by section 145 (1) of the LRA, and condonation for such late application is thus required. Even though the applicant did not specifically include prayer for condonation in her notice of motion, she did make out a case for condonation in her founding affidavit. I am satisfied that the content of the founding affidavit constitutes a proper application for condonation, in line with the principles as articulated in Melane v Santam Insurance Co Ltd^[2]. Although the delay of four weeks is leaning towards the lengthy side of things, it is not unduly lengthy to the extent of mitigating, in itself, against the granting of condonation.

[4]            Turning to the substance of the condonation application, the first issue to consider is the length of the delay. The review application was due by 6 May 2016. It is therefore just short of four weeks late. This is a long delay, but in my view not excessive to the extent as to strongly mitigate against the granting of condonation. In short, the delay is not unduly excessive, but still requires a proper explanation.

[5]            As to the explanation for the delay, the applicant stated that after having received the award on 24 March 2016, she telephoned her erstwhile attorneys on 30 March 2014 to ask for her files used in the arbitration. She only received those files on 4 May 2016. She then secured a consultation with her current attorneys of record on 25 May 2016 for the purposes of ascertaining whether she had prospects of success on review. After that consultation, she decided to proceed with the review application, and instructed her attorneys to proceed. The review application followed about two weeks later.

[6]            I must say that the explanation is somewhat thin. It is lacking in particularity as to what further action the applicant took between 30 March 2016 when she asked for her files from her former attorneys, and 4 May 2016 when she finally received them. She did not explain why it took so long to receive those files. I am aware of the principle that a litigant cannot rely on the laxity of the chosen legal representative of such litigant, unless the litigant can show that he or she at least took proper measures to follow up on the matter and / or prosecute his or her own case.^[3] The applicant comes close to falling short on this issue. However, and in the answering affidavit, the third respondent does not really take issue with the explanation provided, other than making a statement that she was legally represented and as such should have filed her review in time. It thus cannot be ignored that the applicant did request her files from her attorneys promptly, and were let down by them in providing the same with the necessary expedition. It must also be considered that when she received the files, the applicant acted in a manner indicative of a litigant intent on immediately pursuing her case to finality, with the necessary expedition. Once she engaged her current attorneys shortly after receiving the files, the review application followed promptly.

[7]            This is not a case where the explanation is so deficient and the delay so lengthy that the issue of prospects of success falls by the wayside. The explanation provided for the delay is in my view sufficient to justify a proper consideration and ventilation of the applicant’s prospects of success in her review application. Certainty, the consideration of prejudice would favour such an approach, as there can be no real prejudice to the third respondent if condonation is granted, as opposed to the material prejudice the applicant would suffer if condonation is not granted. I shall therefore grant condonation so that the merits of the applicant’s review application can be considered. I will now proceed deciding this review application by first setting out the relevant background facts.

The relevant background

[8]            The third respondent is one the SETAs established in terms of the Skills Development Act,^[4] specifically for the Services Sector. The applicant had been employed with the third respondent since 3 July 2003, in various management positions.

[9]            It must be stated at the outset that the third respondent was placed under administration by the Minister of Higher Education and Training for the period from 21 April 2011 to 30 June 2013. For this period, Dr Sihle Moon (Moon) was appointed as the Administrator of the third respondent, and for all intents and purposes, fulfilled the role of the Chief Executive Officer (CEO) of the third respondent.

[10]        In a letter of appointment dated 5 June 2012, the applicant was appointed into the position of Executive Manager: Office of the Chief Executive Officer (Executive Manager: OCEO), effective from 1 July 2012. The applicant’s employment as Executive Manager: OCEO was subject to a probationary period of six months, ending on 31 December 2012. Her salary was R1 020 000.00 per year, which salary was only subject to review on 1 July 2013.

[11]        The appointment of the applicant into the position of Executive Manager: OCEO was made in accordance with the third respondent’s recruitment policies. What is required in terms of these policies, before an employee can be appointed into a position, is an advertisement for the position, application by the employee for the position, an assessment of the employee, and an interview. A proper appointment contract is also required. The position of Executive Manager: OCEO was indeed advertised beginning January 2012, the applicant applied for it on 20 January 2012, and was assessed on 24 May 2012. And as said, a proper letter of appointment was concluded with her.

[12]        When the applicant’s probation expired on 31 December 2012, she did not receive a formal confirmation of her continued and permanent appointment in that position. However, and in the absence of this, the applicant simply continued to work in the position of Executive Manager: OCEO in terms of her original appointment of 5 June 2012, and on the terms as set out in that appointment.

[13]        Prior to June 2013, the organogram in the third respondent did not make provision for the role of Chief Operations Officer (COO). The applicant was never appointed as COO in June 2012, nor did she serve any probation for that position. It is only during December 2012 that Moon first initiated a process of the development of a new executive organogram for the third respondent, which process only later culminated in the creation of the position of COO. This new organization structure was only approved in May 2013 and this new structure became effective in June 2013. The relevance of this in casu will appear below.

[14]        On 17 May 2013, the applicant had a meeting with Moon. In this meeting, the applicant’s permanent appointment as Executive Manager: OCEO was finally verbally confirmed, and Moon explained that she should have received her confirmation letter in January 2013, but due to unforeseen circumstances, this did not happen. Moon however also informed the applicant in this meeting that her role of Executive Manager: OCEO would change with effect from June 2013 to that of COO. As COO, all the other Executive Managers would report to her, and she would in turn report to the CEO. This was undoubtedly a promotion.

[15]        Following the meeting of 17 May 2013, and on 27 May 2013, Moon handed the applicant a letter of conformation of employment as COO. There was no discussion about the letter at that time, and according to the applicant, she only glanced at the heading on the letter and did not read it. The letter, which is inexplicably dated 19 March 2013, reads: ‘We are pleased to confirm your appointment as Chief Operations Officer following your successful completion of your six months probationary period on the 1^st January 2013. Your annual total cost to company salary package has been reviewed from R1 020 000.00 to R1 224 000.00 with effect from 1 January 2013 …’.

[16]        It must be stated that the appointment of the applicant into this position of COO did not comply in any manner with the third respondent’s recruitment policies. The position was not advertised, the applicant did not apply for it, and she was not assessed for the position. She did not serve any probation in this position as well. The appointment letter dated 19 March 2013 is also not a proper appointment.

[17]        On 15 June 2013, the applicant received back payment of R85 000 from the third respondent. She explained that when she received this, she made enquiries with the Senior Manager: Human Resources, Sibongiseni Gumede (Gumede) what this was for. Gumede told her it was back pay for increases senior managers were supposed to receive in January 2013 when their positions were confirmed. According to the applicant, she had no reason to doubt this explanation, and did not think to confirm the true state of affairs.

[18]        In the bundle of documents in the arbitration, there is an employment contract signed by the applicant and Moon on 14 June and 27 June 2013, respectively, for her position of COO. In terms of this contract, her appointment is effective on 19 March 2013, which does not correspond with the contents of the letter of 19 March 2013 and also does not correspond with the applicant’s own version that she was appointed in this position effective June 2013, as it was only created and approved in May 2013.

[19]        In July 2013, Johannes Mouton (Mouton) was appointed as the new CEO of the third respondent. Mouton, as part of becoming familiar with the state of affairs in the third respondent, discovered what he considered to be irregularities in the appointment of the applicant as COO and the payment of R85 000.00 made to her purportedly for having successfully completed her probation as COO in January 2013. Mouton held the view that this scenario could not be true, as the post of COO did not even exist in January 2013 and the applicant thus could not have successfully completed a six months’ probation for this position.

[20]        Mouton did not deal with this issue immediately, as a dispute developed with the applicant when Mouton sought to change, as part of the operational changes he implemented, the reporting lines of the Executive Managers. Mouton required that all the Executive Managers report directly to him, and not to the COO (the applicant). The applicant viewed this as an unfair demotion and change of her conditions of employment, and she accused Mouton of committing an unfair labour practice towards her. Correspondence was exchanged between Mouton and the applicant in this regard in the course of September 2013, and it is not necessary for the purposes of this judgment to delve into the contents thereof. It does seem that this was not resolved between them.

[21]        On 5 November 2013, Mouton then sent a memorandum to the applicant specifically about the issue of her appointment as COO and the payment of R85 000 she had been paid in June 2013. He expressed his concerns in this regard, and stated that the applicant had a fiduciary duty to always act in the best interests of the third respondent. He referred to the events relating to the appointment of the applicant as COO and the payment made to her, as he understood them from his own investigation. He then specifically asked her to provide information about her involvement in the new structure, and whether she could provide him with any document supporting her appointment into the position of COO. He also expressed concern about the payment of R85 000 to the applicant in June 2013, which according to Mouton could only have been justified if she had been appointed as COO in January 2013, and also asked her for information to confirm this. He made what he called a ‘humble request’ that she consider what he had to say and provide a full response.

[22]        The applicant answered on 9 November 2013 (the memorandum is dated 8 November 2013). She stated, in essence, that she was not directly involved in the creation of the post of COO, but conceded the post was not created in June 2012, and was only created and approved in June 2013. As to her appointment as COO, she stated that this was done by way of an announcement in May 2013 by the Administrator (Moon). With regards the payment of R85 000 made to her, she provided no response, other than stating that she would investigate with Corporate Services and Human Resources and revert to Mouton.

[23]        On 22 November 2013, the applicant then answered Mouton in some detail. She provided an extensive summary of her investigation, and attached a number of supporting documents. Most of this was completely irrelevant as constituting a proper answer to what Mouton had asked of her. What was however relevant and pertinent was that the applicant attached the letter dated 19 March 2013 to her response, and stated that in terms of this letter, it was confirmed that she was appointed as COO after completion of probation and that back pay was due to her as a result. She stated that she was appointed into the position of COO by the Administrator by way of announcements made by the Administrator in a management meeting and later in a general staff meeting, both in May 2013. In specifically addressing the payment of the R85 000.00, she stated that she was not responsible for appointments and payments. She stated that she was aware that back pay was due to her when her probation ended in January 2013, and that she was appointed as COO at the same time as the processing of back pay to Executive Managers. She stated that the HR Unit could confirm the exact amount and percentages awarded to her. She made no mention of any discussion with Gumede.

[24]        Mouton was not satisfied with the response the applicant provided. In a memorandum dated 9 December 2013 to the applicant, he recorded that her response on 22 November 2013 indicated that she committed serious misconduct. Accompanying the memorandum was a notice to the applicant to attend a disciplinary hearing to be held on 17 December 2013. The charge presented therein was one of gross dishonesty relating to this payment of R85 000 she had received, which was contended she was not entitled to. It was further contended that the applicant never raised any query with regard to this payment, despite the fact that she must have reasonably known that she was not entitled to this payment. After being presented with the charge sheet, a number of items of correspondence were exchanged between the applicant, her attorneys, and the third respondent, with regard to the postponement of the disciplinary hearing scheduled for 17 December 2013. It is not necessary, for the purposes of this judgment, to set out the contents thereof. Suffice it to say, the third respondent was adamant that the disciplinary hearing had to proceed on 17 December 2013.

[25]        The disciplinary hearing convened on 17 December 2013 before an independent chairperson, Patrick Williams (Williams). The applicant attended and applied for leave to be legally represented in the disciplinary hearing. After hearing argument from both parties, Williams declined her application for legal representation. The disciplinary hearing was then postponed to 20 January 2014 to allow the applicant a proper opportunity to prepare for the hearing and for further information she had requested to be provided to her. The disciplinary hearing reconvened on 20 and 21 January 2014 and concluded on the latter date. The applicant participated in the hearing.

[26]        Following the conclusion of the disciplinary hearing but before the outcome, and on 27 January 2014, the applicant wrote to Mouton. She stated that following the disciplinary hearing, it was now ‘common cause’ that the letter dated 19 March 2013 contained ‘incorrect information’. The applicant never acknowledged wrongdoing in her letter of 27 January 2014, but simply reiterated her version of events, and said that what happened was just a mistake. She requested guidance on how to repay the sum of R85 000.00. She however again indicated that there was a ‘possibility of a miscalculation’ where it came to the salaries she earned from January to June 2013, referring now to increases that according to her should have been afforded to her at the end of probation. She requested a ‘formal reconciliation’ of her salaries earned in this period.

[27]        Mouton answered on 27 January 2014. He indicated that he had noted the applicant had requested ‘guidance’ on reversing the back pay of R85 000.00 that had been paid to her, and he was willing to meet with her to discuss arrangements in this regard.^[5] However, and with regard to her request for a ‘formal reconciliation’ of the salaries she earned to date, Mouton stated that the third respondent did not consider this necessary. He stated that the applicant had conceded the payment was irregular and needed to be repaid. He referred to the fact that she knew it was related to her appointment as COO in June 2013. The applicant never contradicted this response.

[28]        In a written finding dated 28 January 2014, Williams found the applicant guilty of gross dishonesty relating to the payment of the R85 000.00 that had been made to her. The continuation of the hearing to deal with the issue of an appropriate sanction (mitigation and aggravation) was scheduled for 4 February 2014. It appears this finding was circulated to the parties on 30 January 2014.

[29]        On 31 January 2014 at about 18h54, an e-mail with a letter attached was disseminated to the Presidential Hotline, the Cabinet of Ministers, the Portfolio Committee of Higher Education and Training, the Minister of Higher Education and Training, the Accounting Authority of the third respondent, the Public Protector, Corruption Watch, Radio 702, the Sowetan and Primedia, to mention the most prominent addressees (there were more). The e-mail was headed ‘Irregularity in the Appointment of Johannes (Hannes) Mouton and Corruption at the Services SETA’. This e-mail and accompanying letter will hereinafter be referred to as the ‘31 January e-mail’.

[30]        What is significant is that the 31 January e-mail was sent as if it emanated from concerned stakeholders of the SETA. For this purpose, a g-mail address was created, being ‘ssetastakeholders@gmail.com’. However, it was subsequently established that it was the applicant who created this e-mail address and that she was the one who disseminated this e-mail. An investigation also confirmed that she in fact authored the letter accompanying the e-mail, using the name of ‘Lerato Mophiring’. It must also be added that the third respondent has polices in place in terms of which the issues as raised in this e-mail must be addressed, if raised by its employees.

[31]        In the 31 January e-mail, it was stated that Mouton was irregularly appointed. It was further stated that he was the least favoured candidate for appointment and reference was made to the results of his psychometric testing which showed serious deficiencies on his part. It was also alleged that Mouton was a friend of the Director General of Higher Education and Training and this friendship gave him an unfair advantage where it came to his appointment. Mouton was also accused of the fact that during the preceding six months of his leadership at the third respondent, he showed a lack of initiative, poor decision making, lack of flexibility, poor strategic thinking and an inability to build strategic relationships. It was alleged that the third respondent was in ‘chaos’. Reference was made to a recruitment consultant had been allegedly irregularly appointed. It was finally said that Mouton had racial prejudices and followed an approach of ‘purging’ black Executives.

[32]        On 3 February 2014, the applicant was suspended pending an investigation into what the third respondent called gross misconduct on her part, which referred to the 31 January e-mail. At the same time, the third respondent’s attorneys wrote to the applicant, referring to the 31 January e-mail, and requested her to undertake in writing by 16h00 on 4 February 2014 to desist from any further dissemination of these kind of allegations about the third respondent. The applicant answered on 4 February 2014, through her attorneys. In this response, she does provide the undertaking sought. She however records that she does not admit disseminating the 31 January e-mail, despite knowing what she did.

[33]        The disciplinary hearing due to continue before Williams on 4 February 2014 was postponed to 6 February 2014, for the reason that the applicant had stated she was on sick leave.

[34]        On 4 February 2014, the applicant was given notice to attend a disciplinary hearing to be held on 12 February 2014. In this notification, the applicant was charged with breach of her fiduciary duties, gross dishonesty, sabotaging the third respondent and bringing its name into disrepute, as a result of the 31 January e-mail disseminated by her all the third parties mentioned. The applicant’s attorneys responded to this notification on 7 February 2014, enquiring whether the applicant would be allowed legal representation in the disciplinary hearing and who the chairperson of the hearing would be, and requesting further information and documents from the applicant. The applicant’s attorneys also asked what the third respondent’s intentions were where it came to proceeding with the existing disciplinary proceedings before Williams which was set for hearing on 6 February 2014. It was suggested that such proceedings be held in abeyance. There was however never any application for the postponement of this disciplinary hearing set to continue on 6 February 2014.

[35]        The first disciplinary hearing reconvened on 6 February 2014. The applicant did not attend. The chairperson (Williams) then directed that the applicant be afforded a final opportunity to attend the hearing, which was then moved to 17 February 2014. The applicant was informed in writing of this hearing date, on 10 February 2014.

[36]        The second disciplinary hearing got underway on 12 February 2014 before Advocate Kela (Kela). At the hearing, the applicant brought an application for postponement, which was opposed by the third respondent. After considering argument by both parties and documents presented in support of and in opposition to the application for postponement, Kela refused to postpone the disciplinary hearing. The applicant and her legal representative then stated that because the request for a postponement had been refused, they were leaving the hearing. They then indeed left the proceedings. The disciplinary hearing proceeded in the absence of the applicant. The third respondent led the testimony of all its witnesses and presented argument on the merits and sanction. The proceedings adjourned for Kela to make a written finding.

[37]        In the meantime, the first disciplinary hearing reconvened on 17 February 2014. In this hearing, attended by the applicant, she indicated that she was reluctant to participate in the same, as she contended that she had not received the findings on the merits of the charge and had only received the same on 11 February 2014 as part of documents filed in a High Court case. She also stated that she believed there had been interaction between the third respondent’s management and Williams before the finding had been made. Williams addressed all these concerns with the applicant in detail in the hearing, but the applicant continued to express her dissatisfaction. The hearing then proceeded on the issue of an appropriate sanction, and Mouton presented evidence in this regard. He was cross examined by the applicant. The applicant however refused to present evidence in mitigation of sanction. She still contended she had been prejudiced and stated she would take the matter further in another forum. The proceedings adjourned for Williams to make a finding on sanction.

[38]        Williams issued his sanction recommendation on 20 February 2014. He dealt with sanction in some detail, and indicated that the applicant had materially contravened her duty of good faith towards the third respondent. He considered that she was the second most senior person in the third respondent, as an aggravating consideration. He found that she made spurious attempts to extricate herself from blame and showed no remorse for her conduct. He concluded that the trust relationship had been destroyed. He also considered her length of service and unblemished disciplinary record, but found that these factors were insufficient to mitigate against dismissal. He had regard to the fact that she was found guilty of gross dishonesty, which was very serious misconduct, and that she had financially benefitted from the irregularities. He recommended that she be summarily dismissed.

[39]        The outcome of the second disciplinary hearing came on 25 February 2014. In a written finding issued by Kela, he found that the applicant was involved in drafting the 31 January e-mail and had disseminated the same. He held that the content of the letter was malicious and issued with the intention to impair the good name and reputation of the persons referred to therein. He concluded that the applicant was guilty of the charge. He then dealt with the issue of sanction, and referred to the seniority of the position of the applicant, the seriousness of her misconduct, and the destruction of the trust relationship as justifying her dismissal. He recommended that she be summarily dismissed.

[40]        In a letter dated 3 March 2014 to the applicant, the third respondent referred to the concurrent disciplinary proceedings in respect of the two instances of misconduct referred to above, and the ultimate outcomes regarding sanction issued on 20 and 25 February 2014 respectively. The letter confirmed that in the first disciplinary enquiry, the applicant had been found guilty of the misconduct with which she had been charged, and that after considering mitigating and aggravating circumstances, her summary dismissal had been recommended. The letter further made reference to the second disciplinary enquiry, and reflected that the same outcome resulted. The third respondent stated that it accepted these recommendations, that the applicant had permanently damaged the foundation of her employment relationship with the third respondent, that any continued employment relationship was intolerable, and that the applicant be summary dismissed.

[41]        On 18 March 2014, the applicant referred an unfair dismissal dispute to the CCMA. In terms of the referral document, the applicant classified the dispute as an unfair dismissal dispute based on misconduct. She however, in part B of the referral, indicated that she was found guilty in her absence on ‘an issue relating to protected disclosure’. The date of her dismissal was recorded in the referral as being 3 March 2014. She also challenged the procedural fairness of her dismissal in her referral.

[42]        The dispute was set down on 10 April 2014 in the CCMA for con/arb. It came before the second respondent as arbitrator. Both parties were legally represented. At the commencement of the hearing, the applicant, through her legal representative, raised a preliminary issue that the two cases of misconduct against her be separated into two separate cases, as they concerned unrelated charges, misconduct and issues, and were dealt with in two separate internal proceedings. The applicant argued that where it concerned the first case to be separated out, which related to the misconduct charge in respect of the 31 January e-mail, it was a case concerning a dismissal pursuant to a protected disclosure, and thus an automatic unfair dismissal. Then, as regards the second case to be separated out, and which related to the payment of R85 000.00 to the applicant, it was argued that this was a case of an unfair dismissal based on misconduct. It followed, according to the applicant, that the one case had to be arbitrated in the CCMA, whilst the other case had to be adjudicated in the Labour Court.

[43]        Needless to say, the third respondent’s legal representative opposed the aforesaid submissions. The third respondent’s argument boiled down to a contention that the applicant was only dismissed once for two charges concerning what was nothing else but simple misconduct. According to the third respondent, the dismissal of the applicant had nothing to do with making a protected disclosure. It was argued that the dispute before the CCMA concerned the fairness of the applicant’s dismissal for misconduct which the second respondent was competent to decide. Importantly, the third respondent’s legal representative pointed out that if the applicant believed she was automatically unfairly dismissed based on a protected disclosure, it was up to her to advance such a case and to refer such a dispute the Labour Court. The Labour Court would then decide if there was substance to the claim. The third respondent concluded by saying it was inappropriate to split the dismissal into two processes, one to be heard in the CCMA and the other in the Labour Court. The proceedings adjourned so the second respondent could make a written ruling.

[44]        The second respondent did issue a ruling, but it is of no consequence in this case, considering what happened when the arbitration proceedings reconvened. When the arbitration proceedings reconvened before the second respondent on 26 May 2014, the parties placed on record an agreement they had reached with regard to the further conduct of the proceedings. The precise terms of this agreement will be dealt with fully below. It is sufficient to say, at this stage, that the arbitration before the second respondent was adjourned pursuant to this agreement so that the entire matter could be referred to the Labour Court.

[45]        The matter was then indeed referred to the Labour Court under case number JS 461 / 14, by the applicant. What was actually placed before the Court to decide will be further dealt with below. The outcome of this dispute before the Labour Court was however that the Court decided on 31 July 2015 that it did not have jurisdiction to decide the automatic unfair dismissal dispute in this case. The matter then reverted back to the first respondent for arbitration by the second respondent.

[46]        The arbitration resumed before the second respondent on 4 December 2015. Again, both parties were legally represented. The applicant, in her opening address, contended that she was not fairly dismissed, on the grounds that she was not dismissed for a fair reason and a fair procedure was not applied. She sought fully retrospective reinstatement as consequential relief. After some debate in the course of the opening addresses, it was confirmed that the applicant’s case of unfair dismissal had nothing to with her being victimized nor did it any manner relate to an automatic unfair dismissal.

[47]        In his arbitration award, the second respondent refers to the parties having concluded a pre-arbitration minute. I could not find the minute itself in the entire record in this matter. None of the parties however disputed in the review pleadings that such a minute existed. I will accordingly set out what the second respondent has articulated in his award as to the salient contents of this minute, where it came to the grounds upon which the applicant contended her dismissal was substantively and procedurally unfair.

[48]        Under the auspices of procedural unfairness, the applicant’s first complaint was that she was not provided with the outcome of the first disciplinary hearing chaired by Williams, as well as his sanction outcome of 20 February 2014, and the outcome by Kela of 25 February 2014, within 24 hours as prescribed by the third respondent’s disciplinary procedure. Her second procedural complaint was that she was not afforded an appeal hearing which she was entitled to in terms of the third respondent’s disciplinary procedure.

[49]        Where it came to substantive unfairness, the applicant contended that in essence she committed no misconduct. She contended that the statements contained in the 31 January e-mail were true, and that she reported this to the board as accounting authority of the third respondent, which was a legitimate course of action. Where it came to the charge relating to the payment of R85 000.00 to her, she stated that she was entitled to the payment as back pay on the basis that it was increases she was entitled to, and that she queried this with HR who confirmed that the payment was for this.

[50]        In his award, the second respondent first dealt with the issue of the 31 January e-mail. He accepted that it was common cause that this e-mail was not just sent to the third respondent’s board, but was disseminated to Parliament, media houses and radio stations, which was not acceptable. He also accepted that the applicant authored and disseminated the e-mail, under the pretext that she was a concerned SETA stakeholder. The second respondent considered clause 15 of the applicant’s contract of employment, in terms of which she is subject to a confidentiality undertaking, as well as the fact that the third respondent had a whistle blowing policy in place, known to the applicant, which she should have followed.

[51]        The second respondent was critical of the applicant’s conduct relating to the 31 January e-mail. He referred to the fact that her claim that she was a stakeholder in the SETA was not truthful, and that numerous statements in the e-mail were not truthful. He was also concerned about how the applicant obtained the confidential psychometric results of Mouton which were not even accessible to all the board members, and then sought to publicly disclose the same.

[52]        The second respondent also considered the applicant’s credibility, and not favourably so. He found that she would often change version when put in corner. He gave a number of examples of this, and specifically mentioned that the applicant even went so far as to initially deny that she disseminated the e-mail, when that was clearly not true and she in the end had to concede that she did so. He described her defence with regard to this e-mail as ‘so full of holes it could sink a battleship’.

[53]        Based on the above reasoning, the second respondent then accepted that the applicant committed misconduct as contemplated by the charge relating to the 31 January e-mail. He accepted that she made false representations in the e-mail and flouted the procedures applicable to dealing with these kind of concerns / complaints.

[54]        In then dealing with the second charge relating to the payment of R85 000, the second respondent held that the applicant presented what he called a ‘garbled mix of excuses’. He regarded these explanations as vague, unsupported and improbable. He was critical of the applicant failing to take the simple step of verifying the payment in writing with someone in authority. He also accepted the third respondent’s criticism of her conduct, based on a variety of considerations, which will be dealt with later in this judgment.

[55]        The second respondent then had specific regard to the applicant’s letter of 22 November 2013 in response to the queries raised by Mouton. He stated that it ‘boggles my mind’ why her letter, which is detailed, said nothing about her current contention that she did not read the appointment letter of 19 March 2013 and queried the payment with Gumede. He considered that the applicant in effect conceded that she was not entitled to the back pay she received. He concluded that the applicant committed the misconduct in this regard.

[56]        In dealing with the applicant’s procedural fairness challenges, the second respondent accepted that the applicant did not receive an appeal. He however referred to the fact that the applicant never asked for an appeal and it was never refused that she could have an appeal. He considered that the applicant was aware of her right to appeal in the disciplinary code and how to exercise this right. Finally, the second respondent believed that the applicant suffered no prejudice as a result of not having an appeal.

[57]        On the second procedural point of non-compliance with the 24 hours’ time limit, the second respondent accepted the testimony by the third respondent that it was impossible to comply with this in this case. Again, the second respondent believed it was a critical consideration that there was no prejudice suffered by the applicant as a result of non-compliance with these provisions.

[58]        The second respondent ultimately concluded that the dismissal of the applicant was substantively and procedurally fair. This conclusion prompted the current review application.

Jurisdictional issue

[59]        In her heads of argument, the applicant has again raised the issue that the first and second respondents never had any jurisdiction in this case, because the true nature of the dispute was one of an automatic unfair dismissal based on a protected disclosure. This ground of review was however never raised in the review application itself.

[60]        It is trite that a review applicant is required to set out all the grounds of review relied upon in the founding affidavit and in the supplementary affidavit (if any) in the review application.^[6] New grounds of review cannot be raised in argument.^[7] However, I do accept that the argument raised by the applicant as above concerns one of jurisdiction of the CCMA to have conducted the arbitration in the first place, and that is an issue that can be competently raised even if not specifically pleaded as a ground of review. The reason for this is that it is up to this Court to decide, de novo, and for itself, whether the CCMA indeed had jurisdiction in a particular case.^[8] Since it is pertinently raised by the applicant, I will thus consider this jurisdictional issue. As held in SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others^[9]:

‘The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. …’

[61]        The problem the applicant however faces is that this issue has already been disposed of in this Court itself. The third respondent specifically submitted that the point raised by the applicant in this regard should be dismissed for this reason alone, which submission, for the reasons below, in my view has merit. In fact, I must confess that I consider the applicant’s conduct of pursuing this issue again, right at the end of the review proceedings, to be ill-advised and completely opportunistic. I am convinced that the applicant has chosen to do so for the reason, as will be apparent from what is discussed below, that her review application simply has no merit.

[62]        To put matters into the proper perspective, the issue of an automatic unfair dismissal relating to a protected disclosure first came up when the matter initially came before the CCMA and the second respondent on 10 April 2014. Following an extensive debate on this issue, the parties ultimately reached an agreement, the particulars of which are apparent from the transcript of the arbitration proceedings on 26 May 2014. The applicant’s legal representative states:

‘… Mr Commissioner the parties have agreed between themselves that the matter should be referred to the Labour Court. You will recall off course that there were two issues involved or rather two disciplinary enquiries that were involved which ultimately both accumulatively led to the dismissal of my client. One of those issues involved what we say it constitute an automatic unfair dismissal and we would like to refer that matter to the Labour Court.

But the other matter which would have been within your jurisdiction we say that, that matter will be, between ourselves we have agreed that, that matter too should be referred to the Labour Court so that the two matters should within the integrity of the disciplinary enquiry should be held together and we can resolve both matters before the Labour Court …’ (sic)

[63]        Pursuant to the above agreement, the applicant filed a statement of claim with the Labour Court under case number J 461 / 14 on 3 June 2014. In that statement of claim, the applicant referred to all of the facts she relied on, in respect of both charges that were brought against her. She specifically contended that the 31 January e-mail she disseminated was a protected disclosure she had made. She requested an outcome that she he found not guilty relating to the charge of being paid the R85 000.00, and that the disclosure she made in the 31 January e-mail be declared to constitute a protected disclosure and her dismissal was based on this disclosure was therefore automatically unfair.

[64]        The third respondent filed an answering statement on 7 July 2014. In this answering statement, the third respondent raised two special pleas. The first special plea was that the Labour Court had no jurisdiction to entertain both the automatic unfair dismissal claim and the misconduct dismissal claim. As to the automatic unfair dismissal claim, it was contended that because such a claim had never been referred to the CCMA for conciliation and was never conciliated by the CCMA, the Court did not have jurisdiction to entertain it. According to the third respondent, these were essential jurisdictional facts that needed to first be complied with in order for the Labour Court to have jurisdiction. As to the misconduct claim, the contention was that the Labour Court had no jurisdiction to adjudicate the applicant’s misconduct dismissal, as this can only be arbitrated. The second special plea was that the applicant had in any event failed to properly plead and make out a case of an automatic unfair dismissal in her statement of claim and that she failed to follow the prescripts of the LRA in pursuing such a claim.

[65]        In an order granted by Van Niekerk J on 28 November 2014, it was directed that the two special pleas raised by the third respondent be enrolled on the opposed motion roll for determination. That is how the matter ultimately came before Coetzee AJ for determination on 31 July 2015. In an order granted by Coetzee AJ on the same date, both the special pleas of the third respondent were upheld, with costs. The learned Judge determined, specifically, that the Court had no jurisdiction to entertain the automatic unfair dismissal claim. The applicant never appealed against nor in any way challenged this order.

[66]        As referred to above, the matter then went back to the CCMA for arbitration before the second respondent, to be arbitrated as an ordinary misconduct dismissal, for the want of a better description, in respect of both the charges. In fact, and in the opening address on 4 December 2015 when the arbitration resumed, the applicant specifically disavowed any reliance on victimization or a protected disclosure, and set out why she believed that she had not committed misconduct.^[10] These grounds are summarized above, and have nothing to do with the applicant being dismissed for a protected disclosure.

[67]        The applicant contends, in argument, that she is entitled to raise the issue of the protected disclosure again, because the order of Coetzee AJ on 31 July 2015 is ‘manifestly wrong’. In support of this contention that the order was wrong, the applicant relies on the judgment of Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) and Others.^[11] In terms of this judgment, it was indeed held that an automatic unfair dismissal dispute per se does not have to be referred to the CCMA, and that such a dispute would be contemplated by any unfair dismissal referral. This is obviously contrary to what Coetzee AJ had decided. The problem is that even if this is so, the applicant, no matter what the cause, seeks to do nothing else but undoing the order of Coetzee AJ without that order ever being set aside. That is not permissible. The principle in this regard is settled, and is articulated in Minister of Home Affairs and Others v Somali Association of South Africa and Another^[12] as follows:

‘In Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd para 17 it was put thus:

"As Froneman J observed in Bezuidenhout v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (E) at 229B-C:

"An order of a court of law stands until set aside by a court of competent jurisdiction. Until that is done the court order must be obeyed even if it may be wrong (Culverwell v Beira  1992 (4) SA 490 (W) at 494A-C). A person may even be barred from approaching the court until he or she has obeyed an order of court that has not been properly set aside (Hadkinson v Hadkinson  [1952] 2 All ER 567 (CA); Bylieveldt v Redpath  1982 (1) SA 702 (A) at 714)."’

[68]        As was in fact done by the litigants in Ngululu supra, the applicant should have appealed the order of Coetzee AJ. She elected not to do so. She further elected to acquiesce in the order, and recommence her case in the CCMA. Therefore that order, right or wrong, stands. It is not for this Court to simply ignore the order as if it does not exist and did not determine the issue, just because the applicant may now have a case that it is wrong.^[13] As said in Somali Association supra:^[14]

‘… The cornerstone of democracy and the rule of law is the uncompromising duty and obligation upon all persons, more especially state departments, to obey and comply with court orders. There are processes in place for those who disagree with court orders. But they are not free to simply turn a blind eye to the order nor do they have any discretion to not obey it …’

[69]        Therefore, and whilst one may now argue that the order of Coetzee AJ is wrong and that the applicant has been denied justice as a result, the reality is that there exists another fundamental legal principle that must carry the day, nonetheless. That is principle of finality in litigation, in that where a Court pronounces on a matter, right or wrongly, and that decision is not appealed against, the decision stands and is binding. The applicant always only had one option open to her. She needed to appeal the order of Coetzee AJ, but as said, elected not to. That election in itself is fatal to her raising the same issue again, in that it shows acquiescence in the order of Coetzee AJ, which brings the principle of peremption into play. The principle relating to peremption was defined in Dabner v SA Railways & Harbours^[15] as follows:

‘The Rule with regard to peremption is well settled and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced to it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it.'

[70]        The concept of peremption was dealt with in detail in National Union of Metalworkers of SA and Others v Fast Freeze^[16], and the Court summarized the following pertinent principles:^[17]

‘(a) Where a right to appeal exists, the party desiring to appeal loses the right to appeal where he has acquiesced in the judgment.

(b) Such acquiescence may be express, or implied from the conduct of such party.

(c) Acquiescence by conduct requires an overt act by such party, ie conduct which conveys outwardly to the other party his attitude towards the judgment.

(d) The overt act must be consistent with an intention to abide by the judgment, and inconsistent with an intention to appeal against such judgment.

(e) The test is objective. It is the outward manifestation of such party's attitude in relation to the judgment that must be looked at, not his subjective state of mind or intention.

(f) Where there is such overt conduct, a mental reservation or resolve not to acquiesce in the judgment will not avail the party who by his conduct evinces an intention to abide by the judgment.

(g) The state of mind of the party mentally reserving his right to appeal must yield to his conduct which plainly contradicts such an intention.

(h) The court must be satisfied that the conduct in question, when fairly construed, necessarily leads to the conclusion that the party intends abiding by the judgment.

(i) If more than one inference may fairly be drawn from the conduct in question, this will not be sufficient to prove renunciation. The conduct must be unequivocal.

(j) The onus of proving that a party has renounced his right to appeal rests on the party alleging such renunciation.

(k) Voluntary payment, or acceptance of payment, as the case may be, in terms of a judgment, will usually be sufficient to satisfy a court that the party has acquiesced in the judgment.'

[71]        In this case, and after being handed the order by Coetzee AJ on 31 July 2015, even with costs, what did the applicant do, in the context of the above principles? She certainly had the right to apply for leave to appeal.^[18] But she decided not to. She made that decision despite being legally assisted. The fact that she acquiesced and went back to the CCMA for arbitration on both the charges shows her intention not to challenge the order, and is entirely inconsistent with any intention to challenge the same.^[19] And even if she and her legal representative continued to grumble about the wrong treatment they believed that had been meted out by Coetzee AJ, that does not matter, as the outward manifestation of their intention was one of acquiescence in the order. Lastly, if there was any doubt, this must be dispelled when the applicant sat at the arbitration before the second respondent as arbitrator, and pertinently stated that she will deal with both charges as an unfair dismissal for misconduct, and will not rely on anything else, which approach she could only have adopted if she acquiesced in the order of Coetzee AJ.^[20] She did all of this without any reservation, and this election must be binding on her.^[21]

[72]        As stated, the applicant was throughout legally assisted. As such, being properly advised and not being on her own as a lay person, the applicant should have known better in seeking to raise the issue of automatic unfair dismissal again, as she did in this case, after everything that had gone before. She did not appeal the order by Coetzee AJ and in fact acquiesced in that order. She remains bound by it, even now. The jurisdictional complaint raised by the applicant is thus way out of bounds and must be refused.

The test for review

[73]        Turning then to the merits of the applicant’s review application, the test for review is trite. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,^[22] the Court held that ‘the reasonableness standard should now suffuse s 145 of the LRA’, and that the threshold test for the reasonableness of an award was: ‘… Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...’^[23]. This means that the award in question is tested against the facts before the arbitrator to ascertain if it meets the requirement of reasonableness.^[24] In conducting this test it is always necessary and important for the Court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable.^[25] In Herholdt v Nedbank Ltd and Another^[26] the Court said:

‘… A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.’

[74]        In sum, applying the correct review test has a logical chronology. First, is there a failure or error on the part of the arbitrator? Second, and where there is such a failure or error, it must be shown that the outcome arrived at by the arbitrator was unreasonable, based on all the evidence and issues before the arbitrator, even if it may be for different reasons or on different grounds as those referred to by the arbitrator.^[27] It would only be if the consideration of the evidence and issues before the arbitrator shows that the outcome arrived at by the arbitrator cannot be sustained on any grounds, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.^[28]

Grounds of review

[75]        An applicant for review is required to identify and articulate the grounds for review in the founding affidavit, and the review application is then decided on the review grounds as pleaded. It is not for this Court to make out a case for review for an applicant. As was said in Northam Platinum Ltd v Fganyago NO and Others^[29]:

‘…. The basic principle is that a litigant is required to set out all the material facts on which he or she relies in challenging the reasonableness or otherwise of the commissioner's award in his or her founding affidavit’.

[76]        Because the record of the proceedings before the arbitrator is essential to deciding a review application, and this record only comes to hand after the review application has been filed, a review applicant is afforded the opportunity, after the record has been discovered, to supplement the grounds of review in a supplementary affidavit.^[30] In this case, the applicant indeed filed a supplementary affidavit.

[77]        The applicant raised a general review ground to the effect that the findings of the second respondent are not supported by the facts and evidence placed before him, to the extent that the outcome arrived at by him is not reasonable. She also takes issue with the manner in which the second respondent evaluated and determined the evidence, in the specific instances summarized below.

[78]        Where it comes to the findings of the second respondent relating to the 31 January e-mail, the applicant contends that none of the third respondent’s witnesses said the statements made therein were false, and there was no evidence to support the conclusion that the statements therein were false. She also contends that the second respondent ignored she reported the matter to the accounting authority of the third respondent.

[79]        The applicant takes issue with the findings of the second respondent regarding the charge in respect of the R85 000.00 payment, by stating that the second respondent unreasonably found that she was guilty of dishonesty, in that the letter confirming her employment was simply incorrectly worded, and that she raised a query with Gumede, who assured her all was in order. The applicant also takes issue with the fact that the second respondent failed to consider the letter that she wrote in January 2014 offering to pay back the R85 000.00.

[80]        The applicant’s review grounds relating to the finding of procedural fairness by the second respondent are set out in the supplementary affidavit. The applicant’s complaints in this regard are that the second respondent failed to consider that the third respondent failed to comply with its own disciplinary procedure which stipulated that the applicant had to be provided with the outcome of disciplinary proceedings in 24 hours, which the third respondent did not do. The applicant also states that the second respondent ignored that she was not afforded an appeal hearing as the third respondent’s disciplinary procedure prescribed was her right to be afforded.

[81]        Finally, the applicant contends that the second respondent failed to apply his mind to the applicant’s evidence that the sanction of dismissal was inappropriate in this case.

Analysis: Procedural Fairness

[82]        The third respondent’s Disciplinary Procedure (the Procedure) was before the second respondent as evidence. In terms of the Procedure, it is indeed true, as the applicant contends, that findings made by chairpersons on the issue of the guilt or not of an employee and the appropriate sanction in the case of a finding of guilt must be conveyed to the employee in writing within 24 hours of the conclusion of the hearing.^[31] The Procedure also provides for the right of an employee to appeal, but this right is limited to alleged procedural flaws and the severity of the sanction.^[32]

[83]        It is undisputed that the findings by the two chairpersons in the two disciplinary hearings were not conveyed to the applicant within 24 hours after the proceedings adjourned for the purposes of making the findings. That would be in contravention of the Procedure. However, and what is important to consider is that this is not a case where the findings were not conveyed to the applicant at all. In particular, the ultimate decision on sanction and the dismissal of the applicant was conveyed to her in writing on 3 March 2014, and it is only at this point that right to pursue the matter further, either to the CCMA or by way of an internal appeal, arose.

[84]        I will first deal with the ground that the findings were not conveyed to the applicant in 24 hours. Whist this is a breach of the Procedure, it does not follow that the dismissal of the applicant would be procedurally unfair as a result. Any issue of procedural unfairness must be evaluated by an arbitrator based on what is contained in Item 4(1) of the Code of Good Practice.^[33] That being so, one must always be guided by the following dictum in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and Others^[34], which has been consistently applied in this Court:

‘… It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision. …’

[85]        It must follow that any provisions in an employer’s disciplinary code and procedure containing detailed procedural prescripts in conducting a disciplinary process does not always result in a finding of procedural unfairness simply because those procedures have been contravened. I am not saying that the employer should simply ignore those provisions. It is of course true that where an employer defines its own process and sets its own procedural requirements, it should be expected to adhere to the same.^[35] An employer that does not comply with its own disciplinary code and procedure would thus always run the risk that such failure could be found to be procedurally unfair.^[36] However, this obligation on an employer must always be tempered by considerations of workplace efficiency,^[37] and / or no prejudice being suffered by the employee due to such failure. In Rand Water Board v Commission for Conciliation, Mediation and Arbitration and Others^[38], the court dealt with the failure by a chairperson of an appeal hearing to give reasons for her decision, which was prescribed by the disciplinary code of the employer, and held as follows:

‘… It would, in my view, be highly technical and wrong to regard such technical procedural defect on the part of the second respondent as constituting procedural unfairness justifying the compensation awarded or at all, particularly in the absence of evidence of any loss or prejudice suffered as a result thereof …’

[86]        Therefore, it may well be that even in the case of non-compliance by an employer with its own disciplinary code, that will not be procedurally unfair, based upon considerations of workplace efficiency and prejudice. This would of course be a fact specific enquiry, to be determined in each and every individual case. As held in South African Clothing and Textile workers Union and Others v Filtafelt (Pty) Ltd^[39]:

‘The point I wish to make is that procedural fairness is a holistic consideration, taking into account the provisions of the Code of Good Practice and the employers’ internal code and procedure. In this regard, the background events in the course of the entire disciplinary process must be considered. …’

[87]        Accordingly, it does not simply follow that a failure to comply with the disciplinary code and procedure equates to procedural unfairness, which is what the applicant is actually suggesting.^[40] The second respondent was certainly alive to this. He considered the issue of workplace efficiency, and held that having regard to the facts of this case it was ‘practically impossible’ to comply with the 24 hours’ time limit in the Procedure. He also considered the fact that there was no prejudice to the applicant as a result of this non-compliance. His conclusion that there existed no procedural unfairness in this regard cannot be faulted, and constitutes a finding that is not only reasonable, but correct.

[88]        As to the issue of the appeal, what surely stands out is that the applicant never asked for an appeal. There is no obligation in the Procedure that the applicant be advised of her right to appeal. It would be her duty to familiarize herself with the Procedure and what her rights in terms thereof are. In correspondence from her attorneys in the course of the disciplinary proceedings, she asked for a copy of the Procedure, so surely she had it would read it. It would be something else if the applicant asked for an appeal and the third respondent refused to allow it. But that is simply not what happened in casu. The applicant in her testimony conceded that the third respondent never told her she could not appeal.

[89]        The Procedure also provides for a limited right of appeal, as set out above. It follows that the applicant was in any event not entitled to appeal on the issues of the findings made against her relating to her being guilty of the misconduct with which she had been charged. Considering the complaints, the applicant has advanced in this case, the only issues she could appeal against is the sanction of dismissal imposed on her, and the fact that she was not given the various outcomes in 24 hours as being a procedural irregularity.

[90]        In my view, the simple answer is that in order to justify a complaint about not being afforded an appeal, the applicant needed to have asked for one. The fact that a person may have a right still requires a person to exercise such right. This is especially so, considering the limited right of appeal, and that the applicant thus needed to advance proper grounds of appeal in line with what she is allowed to appeal against. The third respondent can hardly be legitimately criticized for not having had an appeal for the applicant, if the applicant did not exercise such right in the first place. Again, the second respondent was very much alive to this. His conclusions that the applicant should have exercised her rights and lodged an appeal is unassailable. Therefore, and in this case, the holding of an appeal enquiry was entirely in the applicant’s own hands, and no procedural unfairness can result from the fact that there was no appeal. I will even go so far as to say that advancing this as a ground of procedural unfairness is spurious and opportunistic.

[91]        In summary, the applicant has failed to make out a case that the second respondent committed any reviewable irregularity in finding that her dismissal was procedurally fair. The second respondent’s award in this respect must therefore be upheld.

Analysis: Substantive fairness

[92]        Despite all the complaints by the applicant about the manner in which the second respondent considered and determined the evidence, the proper factual matrix in deciding the misconduct charges against the applicant was straight forward and simple, and in the end, undeniable. There is no need to embark upon an exercise to determine which evidence the second respondent should have reasonably accepted, considered, and why. As a general proposition, it is my view that the second respondent properly appreciated the case he had to decide, and in his award succinctly identified and then decided the core issues relating to the misconduct as it was placed before him. His approach to this matter simply cannot be faulted.

[93]        Considering firstly the charge relating to the payment of the sum of R85 000.00 to the applicant in purported back pay, the following uncontested facts emerged:

93.1      The applicant was appointed as Executive Manager: OCEO on 5 June 2012 and served a six months’ probation in that position, which ended on 31 December 2012. The applicant continued working in that position as from 1 January 2013 after probation, earning a salary of R1 020 000.00 per annum.

93.2      The position COO did not exist prior to June 2013, and was only approved in the new structure in May 2013 and implemented as from June 2013.

93.3      The applicant was presented with a letter dated 19 March 2013, on 27 May 2013, recording that she was appointed as COO with effect from 1 January 2013 after serving six months’ probation, and that her salary was R1 244 000.00 per annum.

93.4      Other than being presented with this letter, none of the third respondent’s prescribed appointment processes were followed in appointing the applicant to this position of COO.

93.5      In June 2013, the applicant was paid a sum of R85 000.00, being exactly the difference between the applicant’s salary as Executive Manager: OCEO and her salary as COO, for the five months’ period from January to May 2013.

93.6      The applicant never formally queried this payment, nor her appointment as COO.

93.7      The applicant was not entitled to being appointed as COO from 1 January 2013, as that position did not exist. She served no probation in that position. She also did not fulfil any duties as COO between January and May 2013. The applicant was not entitled to any back pay insofar as it concerns her appointment as COO. The letter of 19 March 2013 reflecting this was clearly irregular.

93.8      The applicant’s employment contract as COO was only finally signed on 27 June 2013, appointing her as COO as from March 2013 at a salary of R1 244 000.00 per annum, which contradicted the above.

[94]        How does the applicant then deal with the above set of facts, which even on face value is quite irregular? In my view, in a manner that smacks of dishonesty. The manner in which the applicant dealt with this must also be considered in the context of her senior position in the third respondent. At the time when the payment was made, the applicant was occupying the position of COO (even if irregularly appointed) which was the second most senior position in the third respondent and in which she reports directly to the CEO. But even before that, she was the Executive Manager: OCEO and as such, would be responsible to guide the CEO in all operational issues, including appointments. As a general proposition, she conducted herself in a manner that is nothing else but entirely unacceptable, considering these positions she held.

[95]        Turning then to specifics, the first difficulty I have is that when the applicant was appointed as Executive Manager: OCEO, she went through the prescribed recruitment process of the position being advertised, applying for the position, being assessed and then being issued with a proper letter of appointment. But when she called by Moon in May 2013 and simply told she would be COO (which is clearly a promotion), however without any of the prescribed process being followed, she says nothing. Considering her responsibility to the third respondent, she should have queried the appointment without the following of the prescribed process. This failure, in the context of her duty to speak, already smacks of dishonesty. I am not saying the applicant was charged with misconduct in this regard. What I am saying is that this is relevant background which supports the conclusion that she was dishonest where it came to being paid the R85 000.00.

[96]        According to the applicant, and when she received the payment of R85 000.00 in June 2013, she asked Gumede in HR what it was for. He explained to her it was back pay for increases. She stated that she had no reason to doubt this explanation and accepted it. Accepting such an explanation without more is in my view in itself an indictment on her. Surely she needed to ascertain where these increases came from, and how much they were, since there is no evidence that any such increases were discussed with her or on what basis she was even entitled to it. She must also have reasonably known that there could be no back pay for the increase she received for her position as COO as this only came into effect in June 2013. And, as stated above, the applicant’s letter of appointment for her position of Executive Director: OCEO only provided for a salary review in July 2013 and no salary revision after completing probation. For the applicant, on her own version, to simply accept the word of Gumede (that reported to her at the time) is unacceptable. In any event, and for the reasons set out below, it is my view that this version of the applicant of this discussion with Gumede is a fabrication. I may add that Gumede was also dismissed for misconduct relating to inter alia this payment.

[97]        It was common cause that the applicant was handed the purported appointment letter dated 19 March 2013 by Moon, in May 2013. How the applicant then uses this letter to justify a variety of approaches in defending the charge of being irregularly paid the R85 000.00 is highly questionable, and for the reasons discussed below, undoubtedly dishonest. However, and before dealing with her behaviour in this regard, it must be said that without doubt, the applicant was not entitled to the sum of R85 000.00 in back pay. The purported back pay was nothing else but the difference in salary between her salary as Executive Manager: OCEO and her new position of COO, from January to May 2013. It was undisputed that the post of COO was only approved in the structure in May 2013 and implemented in June 2013. The applicant could not have been appointed as COO in January 2013. Thus, she was not entitled to the back pay. It is as simple as that.

[98]        On the evidence, the applicant said nothing about the R85 000.00 she had been paid until Mouton asked for an explanation why it was paid to her. Her response to Mouton, properly considered, is nothing else but ducking and diving, in order to avoid committing to a proper explanation. Significantly, she mentions nothing in this explanation about an alleged discussion with Gumede. If ever there was a time to come clean, this would be it. But what does the applicant do? She first answers on 9 November 2013, in effect pleading ignorance, and undertook to investigate. This is in itself surprising, considering what she on her own version knew even at that time. However, she then on 22 November 2013 gives an elaborate, long winded and voluminous response which in my view is nothing else but camouflage to avoid dealing with the actual questions Mouton asked her. What is however important is that the applicant refers to the letter dated 19 March 2013 and contended that in terms of this very letter, it was confirmed that she was appointed as COO after completion of probation and that back pay was due to her as a result. She never suggested that the letter was somehow in error, or that the payment had been erroneously made to her. She adds that she was aware that back pay was due to her when her probation ended in January 2013, and that HR can give the exact details.

[99]        The explanation offered by the applicant to Mouton on 22 November 2013 is clearly false. The letter of 19 March 2013 is not an appointment letter. It specifically stated that the applicant was appointed as COO as from January 2013 and that she successfully completed six months’ probation for that position. It must have been clear to the applicant that on a simple reading of this letter herself, that it was not correct and could not constitute a legitimate basis upon which to justify the payment of the sum of R85 000.00 in back pay to her. But she represented it to Mouton as such. This is nothing short of dishonest.

[100]     In the disciplinary hearing, the applicant changes tack. She conceded that she was not entitled to the back pay based on the letter of 19 March 2013. She stated that the letter was factually incorrect, and that she had omitted to properly read and consider its contents. She also stated that she needed to be more diligent, but her judgment was clouded by her expectations relating to her appointment as COO. As far as explanations go, even this is not acceptable, and in my view once again false. In the simplest terms, I find it hard to comprehend that when specifically asked by Mouton why she is entitled to the back pay, she relied on the letter of 19 March 2013, but when confronted with the true facts relating to her appointment of COO in the hearing, she turns around and says she in effect did not read the letter properly and there was a mere mistake. This is nothing but dishonest, because surely the applicant must have read the letter when using it in her submissions to Mouton on 22 November 2013 and must have known it is not correct then. This explanation smacks of being contrived by the applicant when faced with the inescapable fallacy of trying to rely on this letter to justify the payment.

[101]     After completion of the disciplinary enquiry but before the finding was issued, the applicant next on 27 January 2014 offered to pay back the R85 000.00, conceding that the payment was a ‘mistake’. But even this purported offer is questionable, in that it is not unconditional but coupled with a contention of a ‘possibility of a miscalculation’ where it came to the salaries she earned from January to June 2013, and a request for a reconciliation. I have little hesitation in concluding that this approach by the applicant was nothing but a deliberate design to try and avoid an adverse finding in the disciplinary hearing, which was inevitable considering the case that had been presented by the third respondent therein. Mouton in fact offered to meet the applicant to discuss the repayment of this amount, but the applicant never took him up on that offer, which must also surely indicate that her offer was never genuine. Once again, her behaviour is not honest.

[102]     But what must surely put the dishonesty of the applicant beyond doubt is her reaction when ultimately presented with a finding of guilty on the dishonesty charge relating to the payment of the R85 000.00. She challenges the finding, reverting back to her original contention that she was entitled to the back pay, but this time based on yet another case. I believe it is important to quote from the statement of case the applicant filed when it was agreed on 26 May 2014 to refer this matter to the Labour Court. In the statement of case, the applicant pertinently records the following:

’11.3  The respondent suggests that the applicant was not entitled to a salary increase on 1 January 2013.

11.4   The applicant denies that she was not entitled to a salary increase and avers that:

11.4.1              Salary increases equivalent to 15% per annum of the total cost to company package were paid to all executive personnel who successfully completed the probationary period.

11.4.2              On 19 March 2013 letters were written to … the applicant.

11.4.3              The applicant was accordingly entitled to a salary increase of 15% per annum in respect of the confirmation of her appointment as Executive Manager, Office of the Chief Executive Officer. …

11.6. The applicant avers that she was entitled to back-pay of approximately R80 000.00.’

[103]     When the matter returned to the CCMA after the abortive Labour Court proceedings, the applicant offered the exact same version as set out in the statement of claim, quoted above. She however once again referred to her discussion with Gumede, also referred to above, as part of her case, and that she accepted it when he told her it was back pay for increases after completion of probation.

[104]     The above contentions in the statement of case and arbitration are once again false. It is irreconcilable with her earlier concession that she was not entitled to back pay and the payment was a ‘mistake’. It flies in the face of her letter of appointment to the position of Executive Manager: OCEO dated 5 June 2012, which only provides for a salary review in July 2013, and certainly does not make any provision for a salary review after competing probation. Also, an increase of 15% on her salary of R1 020 000.00 as Executive Manager: OCEO adds up to an additional R12 750.00 per month which gives a back payment for the period from January to May 2013 of R63 750, and not R85 000.00. The sum of R85 000 is exactly the difference between the applicant’s salary as Executive Manager: OCEO and her salary as COO for this five months’ period. The applicant makes up her case as she goes along, which is manifestly unacceptable for a person of her seniority, responsibility and stature, and certainly dishonest.

[105]     The second respondent appreciated the above state of affairs in his award. He described it, correctly in my view, as a ‘garbled mix of excuses’. He held that the applicant as a senior executive was reasonably expected to have enquired in writing about the payment and what made it due. These conclusions in my view have substance. According to the second respondent, the third respondent ‘poked serious holes’ in all the excuses offered by the applicant. Again, this conclusion cannot be criticized. The second respondent’s statement that ‘… She tried, without success, to clutch at every tree just to get above water …’ is a most apt description of the applicant’s conduct in this case. It is unassailable on review.

[106]     In dealing with dishonesty, the Court in Nedcor Bank Ltd v Frank and Others^[41] held that ‘… Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently ...’. There can be no doubt that the applicant exhibited such lack of integrity and a propensity to lie. She offered a number of irreconcilable explanations why she was entitled to the payment of R85 000.00, when it must have been clear to her, as a matter of common sense, that this was not the case. It is simply untenable for the applicant to say on the one hand that she accepts she is not entitled to the back pay and will pay it back, and then in the same breath on the other hand say that she entitled to it based on an increase given to her after completion of probation. And even her case relating to why she would be entitled to the back pay is completely contradictory, in that she on the hand she says it is because of her appointment as COO, and on the other hand that it is an increase for successfully competing probation as Executive Manager: OCEO. If this is not dishonest, it is difficult to understand what would be.^[42]

[107]     In Department of Education: Mpumalanga Province and Others v Mthala N.O and Others^[43] the Court deal with an instance where employees made a payment to a third party that was not entitled to it. What is relevant to the matter in casu is that the employees in that case raised the same kind of explanations that the current applicant raised. Those employees for example said there was a source document with the same names erroneously relied upon and that the employee was overworked. The Court held as follows:^[44]

‘… In short - the evidence ineluctably points to an intent of the part of both employees to act, in the words of Nedcor Bank Ltd, ‘without integrity or straightforwardness’, i.e. dishonestly. Given the serious nature of the misconduct, the penalty of dismissal is appropriate. …’

[108]     What makes all of this even worse is how the applicant changes version depending on what the process is she is being confronted with. When the applicant was just asked for an explanation for the payment by Mouton, she simply refers to the letter of 19 March 2013 and states that this per se justifies her entitlement to the payment. This version is persisted with in the disciplinary hearing. But when it becomes clear in the disciplinary hearing that this contention is unsustainable, she conceded she is not entitled to back pay, the payment was a mistake, and she will pay it back. When the hearing outcome is still not in her favour, she offers a version that she is entitled to the back pay, but now it is because she was entitled to a 15% increase when she completed probation as Executive Manager: OCEO. This is not a palatable state of affairs and surely manifests a complete lack of straightforwardness.

[109]     The applicant had a fiduciary duty not to conduct herself in the manner that she did, in that she was required to always protect the interests of the third respondent. Not only is this fiduciary duty implied in her position as Executive Manager in the third respondent and the fact that she would be responsible for the management of an entity that deals with public funds, but her employment contract and the third respondent’s policies specifically prescribe this fiduciary duty. Her contravention of this duty would justify her dismissal. In Sappi Novoboard (Pty) Ltd v Bolleurs^[45] the Court held as follows:

‘It is an implied term of the contract of employment that the employee will act with good faith towards his employer and that he will serve his employer honestly and faithfully:  … The relationship between employer and employee has been described as a confidential one (Robb v Green at 319). The duty which an employee owes his employer is a fiduciary one 'which involves an obligation not to work against his master's interests' … If an employee does 'anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him' …’

[110]     The applicant exhibits a clear lack of understanding of the adverse consequences of her conduct and how this impacted on her trustworthiness as a senior manager in the third respondent. Applying her own version that she simply asked Gumede if all was in order and accepted what he said is indicative of this lack of insight in what was really expected of her. The same applies to the irregular manner in which she was appointed as COO, without even raising a query. The second respondent certainly appreciated this in his award. This is the kind of conduct that is completely destructive of the employment relationship and the fiduciary duty that lies at its core, where it comes to senior managers.^[46] The case in casu is comparable to the following dictum in Roscher v Industrial Development Corporation and Others^[47] where it was said:

‘Roscher’s testimony before the CCMA brings to light her flawed insight at the time she drafted the recommendation and her persistence in that error throughout the hearing. Through her conduct (and her testimony justifying it) Roscher established that she lacks judgment and cannot be trusted to act appropriately in the best interests of her employer. Her defence of her conduct on the dubious bases she advanced during the CCMA hearing confirms her unreliability. Her repeatedly stated conviction that she had no duty or obligation to disclose the negative assessment of the NFVF to the credit committee, and her assumption that her inaccurate and incomplete disclosure was sufficient, defy reasonable belief. Her version that she handed the report to Ford, told him it was OK and did not mention the damning comments because she wanted him to bring an objective opinion to bear, is improbable; and, were it to be believed, revealing of exceptionally poor judgment for a person in her position. Her stance reveals a notable lack of appreciation of her fiduciary duties in the due diligence process.

By the same token, the representation of the information about the security or guarantee requirement in the recommendation is equally indicative of a serious lack of judgment on the part of Roscher. The document is replete with misleading and ambiguous statements about the nature of the security on offer. The communication of the true position was way below par, especially in the light of the fact that Roscher would or should have known the true position (as conveyed by Chavarika) after the meeting with Walmart in the USA. What was in fact conveyed to the credit committee, if not deceitful, reflects a disturbing lack of understanding of Walmart’s commitment, the basics of the due diligence process and the quality of the security required.  The fact that Chavarika’s email resulted in the credit committee ultimately not being misled on the security issue does not help Roscher. The email disclosed the true situation that Roscher should or must have known. Its obvious variance with the version she put forward in the recommendation was at the very least a grossly negligent and misleading breach of fiduciary duty, confirming her unreliability in undertaking the task at hand. Her attitude reflected a lack of concern or insight about the possibility that her misrepresentations and non-disclosure had significant potential to cause the IDC reputational and financial prejudice.’

[111]     The applicant has also challenged the issue of dismissal as an appropriate sanction. This challenge has no substance at all. It is trite that dishonesty of the kind perpetrated by the applicant in this case, especially considering the seniority of her position, in itself justifies dismissal. Added to that, the applicant has persisted with presenting a number of false defences and has shown no remorse or any kind of contrition for her misconduct. I am also satisfied that the trust relationship in this matter has been completely destroyed, and that it could not have been expected of the third respondent to continue to put up with an employee that behaved as the applicant did. In Schwartz v Sasol Polymers and Others^[48] the Court held:

‘In the current matter, the dishonest nature of the appellant’s misconduct was of such a nature as to make continued employment intolerable and dismissal ‘a sensible operational response to risk management’. It would be fundamentally unfair and unjust to expect an employer to retain in its workplace a senior employee who has shown himself guilty of dishonesty in the manner of the appellant. The high premium on honesty in the workplace and the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely.’

[112]     Considering all of the above, the applicant spectacularly earned her dismissal based on the gross dishonesty charge alone. That being the case, it is in reality not necessary to even consider the charge relating to the 31 January e-mail. I will however say, for the sake of being complete, that the second respondent’s conclusion with regard to this charge as well, cannot be faulted, for the reasons to follow.

[113]     Because this case has nothing to do with a protected disclosure, and considering that it was ultimately undeniable that the applicant was the one that disseminated the e-mail, she firstly needed to prove the contents were true. And secondly, even if the contents were true, she needed to show that she was justified in disseminating the e-mail to all and sundry, rather than utilizing the specific internal policies in the third respondent prescribed to deal with these kinds of complaints internally.

[114]     In my view, the true motivation for the applicant disseminating the 31 January e-mail is readily apparent. This motivation is not a noble one, nor does it have the interest of the third respondent at heart. Rather, it is retribution directed at Mouton for firstly allegedly demoting her and changing her conditions of employment, and then because he was the one that instigated disciplinary proceedings against her. In the opening address in the arbitration, the applicant stated that she was disciplined because Mouton tried to change her conditions of employment and when that did not work, he then went out to discipline her.

[115]     However, and what effectively scuppers the applicant’s case in this regard is her own conduct. It is undisputed that she disseminated the 31 January e-mail in clandestine manner misrepresenting that it was sent by concerned stakeholders in the third respondent, when she was not such a stakeholder. She even created a clandestine e-mail address for such purpose. It also cannot be ignored that when initially confronted, she denied that she disseminated the e-mail, and only when confronted with irrefutable proof that she in fact created the e-mail and disseminated it, did she then concede this but turned around and claimed a protected disclosure. For an Executive Manager in the third respondent to behave in such a fashion is disgraceful. She undoubtedly, whist in a position of trust and being the second highest ranking manager in the third respondent, did nothing else but seek to undermine the CEO of the third respondent and so destabilize its management, for the simple reason of hitting back after being disciplined. It is also not lost on me that there exists a close temporal nexus between the dissemination of the e-mail,^[49] and the applicant being found guilty of the charge relating to the payment of R85 000.00, in disciplinary proceedings driven by Mouton.

[116]     Even if some of the complaints in the 31 January e-mail had substance, there are two material issues contained therein that the applicant could not explain. The first was how she obtained the confidential psychometric test results of Mouton, and what possible justification could there to disseminate the same to all the third parties the e-mail was sent to. Her conduct in doing so is indefensible. Secondly, the accusations of racism against Mouton are clearly unfounded and could not be justified by the applicant, who simply gave no testimony about it in the arbitration. Unfounded allegations of racism is racism in itself.^[50] These two considerations alone make the dissemination of the 31 January e-mail to be serious misconduct by the applicant.

[117]     The second respondent, in his award, had regard to most of what I have summarized above. He paid particular attention to the fact that the applicant masqueraded as a stakeholder, made false representations in the e-mail, and failed to follow the correct procedures. He regarded these considerations as establishing the misconduct with which the applicant had been charged. His outcome in this regard is in my view well within the bands of what may be considered to be a reasonable outcome, based on the evidence before him. The second respondent’s findings on the second charge must therefore also be upheld as unassailable on review.

Conclusion

[118]    Therefore, based on all the reasons set out above, I conclude that the second respondent’s arbitration award is simply not reviewable. I am satisfied that the second respondent’s findings of facts are properly supported by the evidence before him, as well as the documentary evidence. His views concerning the applicant and her conduct are justified, rational and reasonable. Insofar as the issue of the outcome arrived at by the second respondent is to be considered on the basis of it being reasonable or unreasonable, there is in my view no doubt that it would comfortably resort within the bands of reasonableness as required, in order to be sustainable on review. And finally, the second respondent’s findings of procedural fairness are unassailable. The applicant’s review application thus falls to be dismissed.

Costs

[119]    This then leaves only the issue of costs. In terms of the provisions of section 162(1) of the LRA, I have a wide discretion where it comes to the issue of costs. I am aware of what the Constitutional Court said with regard to costs in employment disputes as expressed in Zungu v Premier of the Province of Kwa-Zulu Natal and Others^[51]. However, the judgment in Zungu cannot serve as some or other blanket immunization from costs orders. There would always be circumstances in which a judicial exercise of the discretion, where it comes to costs, justifies costs being awarded.

[120]     In exercising this judicial discretion, the same Court recently re-affirmed the principle set in Zungu supra and stated that ‘when making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties.’^[52] The matter in casu is one where costs must be awarded against the applicant, for the reasons to follow.

[121]    I will first deal with the conduct of the applicant. She sought to defend the indefensible. It must have been obvious to her that what she did made it impossible to continue with the employment relationship, especially since she persistently refused to acknowledge any wrongdoing. She seamlessly moved from version to version to escape responsibility for what she did. She raised spurious procedural complaints. And then, when it must have been apparent to her that she has problems on the merits, she attempts to resurrect the issue of the protected disclosure issue all over again, despite not even raising it as a ground of review in the founding affidavit, which is nothing short of an abuse of process.^[53] What makes it worse is that she was legally assisted throughout the proceedings. The applicant should have taken her medicine, as bitter as it may taste, move on, and not drag the third respondent through further litigation, especially considering that she received a fair and proper arbitration hearing. As held in Rustenburg Platinum Mines Ltd v United Association of SA on behalf of Pietersen and Others:^[54]

‘In this case, it was or should have been apparent to UASA that the commissioner’s award was indefensible. It had nonetheless persisted in opposing this application in circumstances where it should have reflected on the merits of the matter and made an informed decision. It failed in that regard, and I can see no reason why it should not be burdened with the costs of this application.’

[122]    I also consider that public funds are at stake in this matter. These funds are in short supply, and are best used for the purposes they are intended, and in this case, this is to provide education and training. The already slim public purse should not be drained by what is unnecessary litigation conducted in the manner the applicant chose to conduct her case in this matter. These considerations also justify a costs order. As succinctly said in Wenum v Maquassi Hills Local Municipality and Another^[55], ‘… Public funds are certainly not intended to fund costs …’.

[123]    In the premises, the following order is made:

Order

1.             The applicant’s review application is dismissed with costs.

S. Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:                             Mr S July of Werksmans Attorneys

For the Third Respondent:             Advocate S Magaqa

Instructed by:                                    Ndumiso Voyi Inc Attorneys

[1] Act 66 of 1995 (as amended).

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