IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
case NO: JR2410/19

In the matter between:

CITY OF JOHANNESBURG                                                       Applicant

and

COMMISSIONER AMOS MTHIMUNYE N.O			   First Respondent

SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING
COUNCIL (SALGBC)	Second Respondent

IMATU obo TAUTSAGAE S. MAHLONG                                  Third Respondent

Heard:	28 June 2023
Delivered:	25 August 2023

JUDGMENT

SHISEVHE AJ

Introduction 

[1]	Before me is an application for review in terms of section 145 (1) (a) of the Labour Relations Act (LRA).

[2]	This case concerns the nature and extent of the obligation that rests on an applicant for employment to disclose the circumstances surrounding his failure to disclose that he was suspended from practising as an attorney as well as his failure to disclose reasons for termination of employment with a previous employer.

Background facts

[3]	Mr. Tautsagae S. Mahlong (Third Respondent) was employed by the City of Johannesburg (Applicant) as a Legal Advisor of its Revenue Department on 1 July 2009.

[4]	During 2014, the Applicant advertised the position of Deputy Director: Legal Support. The advertised position’s requirements were as follows: 
‘●	legal or LLB degree or equivalent/post graduate qualifications
•	legal compliance certificate
•	para-legal/legal administration
•	2 to 3 years in litigation
•	Knowledge of process within magistrate/ High court/ Regional court
•	Fluent in English and Afrikaans, both written and verbal
•	Qualified attorney admitted to the bar with at least 5 years’ experience in a public/ corporate environment
•	FIDIC experience
•	Previous management experience preferably in Credit Control Management and or related field
•	Experience in managing public sector stakeholders is an advantage, which presupposes an understanding of public sector industry
•	Must have managed an organisation of a similar size or bigger.’

[5]	On 19 June 2014, the Third Respondent applied for the position. In his application letter, the Third Respondent stated amongst others that: 
‘I have all the attributes sought for the position and would like to be considered for the position.’

[6]	The Third Respondent went for an interview and was the successful candidate. As a result, he was then appointed to the advertised position.

[7]	The Applicant received an anonymous tip-off in 2016 stating that the Third Respondent was appointed though he did not meet the minimum requirements. An investigation ensued as a result of the tip-off. 

[8]	The investigation found that the Third Respondent had a case to answer for his failure to disclose to the interview panel that he was suspended from practising as an attorney.

[9]	The Third Respondent was hauled before a disciplinary enquiry, facing the following charges of misconduct:

‘Charge 1
You are guilty of misrepresentation, alternatively gross dishonesty, further alternatively breaching item 2 (b) and (d), in that-
On or about 19 June 2014, in a covering letter submitted by you in support of application for the position of Deputy Director Legal Support, you stated that the requirements of the position are parallel to you and thereby creating the impression that you are a qualified admitted attorney whilst you were suspended from practising as an Attorney on 20 October 2000.
Charge 2
You are guilty of dishonesty, alternatively acting in conflict with interest of the COJ, further alternatively breaching item 2 (b) and (d), in that-
In your curriculum vitae and during your interview for the position, you failed and/or neglected  and/or refused to disclose to the COJ that on 20 October 2000, you re suspended to practice as an attorney, that your employment with the Department of Justice was terminated because you were finally suspended from practising as an attorney due to irregularity in your trust account.’

[10]	The Third Respondent appeared in the disciplinary hearing and was subsequently dismissed on account of charges 1 and 2.

[11]	The Third Respondent appealed and was unsuccessful.

[12]	Aggrieved by the dismissal, the Third Respondent referred an unfair dismissal dispute to the Second Respondent, the SALGBC, with the First Respondent as the commissioner.

[13]	The Third Respondent claimed that his dismissal was both procedurally and substantively unfair in that the disciplinary hearing proceeded in his absentia after notice to appear was served on an email address that he was no longer using and further that he had disclosed his suspension from practising as an attorney to the interview panel (panel).

[14]	The First Respondent in his award found that the dismissal was substantively unfair in that the Applicant failed to prove that the Third Respondent had misled the panel or that he failed, neglected and/or refused to disclose to the Applicant or the panel that he was suspended to practice as an admitted attorney.

[15]	The First Respondent found that the Applicant had failed to prove that the dismissal was procedurally fair.

[16]	Further, The First Respondent found that the Applicant had failed to prove that the Third Respondent had stated, in his CV or in his application letter before the panel and/or the Applicant, that he was an admitted practising attorney; and that the Applicant failed to prove that there was (i) a rule; (ii) it was known to the Third Respondent or that it was reasonably expected of the Third Respondent to know about the rule; (iii) that a rule was breached; and (iv) that a rule was consistently applied.

[17]	The First Respondent, as a result of his finding, ruled that the Third Respondent be retrospectively reinstated.

Grounds of review

[18]	Aggrieved by the First Respondent’s award, the Applicant filed for review of the award on the following grounds:
‘Firstly, that the First Respondent failed to deal with charge two in its entirety wherein the Third Respondent was found guilty and dismissed for.
Secondly, that First Respondent failed to deal with evidence before him in its entirety because he concluded that the Respondent failed to discharge the onus because it had not led evidence about what was conveyed during the interview.
Thirdly, that at para 78 First Respondent found that “there was no evidence by the Respondent (Applicant herein) that it required Mr Mahlong to specifically state in his CV and Application letter that he was ‘struck off the roll’.
That such finding by the First Respondent constituted material error.
Fourthly, that the First Respondent’s finding that the dismissal was procedurally unfair is unreasonable.’

The test for review 

[19]	The Constitutional Court settled the issue of the test for the review of an arbitration award in the case of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others. The Court held that the test on review is whether the decision reached by the Commissioner is one that a reasonable decision-maker could not reach in relation to the evidence before him or her.

[20]	The test to be applied is one that recognises and reinforces the distinction between a review and an appeal. This court is entitled to intervene if and only if the arbitrator’s decision is one that falls outside of a band of decisions to which a reasonable decision-maker could come to on the available material before him. The locus classicus remains Head of the Department of Education v Mofokeng and others, where the Labour Appeal Court (LAC) said the following: 
‘The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity.’

[21]	However, the Supreme Court of Appeal in Herholdt v Nedbank (Congress of South African Trade Unions as amicus curiae) summarised the review test as follows:
‘…[T]he position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in section 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by section 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. 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.’

[22]	In a further explication of the review test, the LAC in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others held that, in assessing whether the result of an award is unreasonable, the reviewing court should not adopt a piecemeal approach, and must further enquire whether: 
‘…(i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he or she was required to arbitrate? (This may in certain cases only become clear after both parties have led their evidence) (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?’

[23]	In this case, the Third Respondent faced charges of dishonesty in that he failed to disclose in his application, CV and/or to the interview panel that he was suspended from practising as an attorney, as well as his failure to disclose that his contract was terminated by the Department of Justice because he was finally suspended from practising as an attorney due to irregularities in his trust account.

[24]	The First Respondent found that the Applicant failed to prove on a balance of probabilities that the Third Respondent failed to disclose to the interview panel in that they did not call any panellist to testify.

[25]	It is surprising that the First Respondent had made this finding even though the Applicant’s sole witness’ testimony remained unchallenged in that the Third Respondent, when asked during the investigations if he ever disclosed to the interview panel that he was suspended as an attorney, answered that he could not remember.

[26]	However, several months later, the Third Respondent managed to ‘recall’ that he informed the panel as well as his then supervisor, Mr Christopher Ntshingwa that he was suspended from practising as an attorney, this is despite the testimony of Mr. Sibanda that he interviewed all the panellists and they all informed him that there was no disclosure of such nature as it could not be found in the interview records.

[27]	The Third Respondent, in his answering affidavit, states that he disclosed to the Applicant that he was no longer a practising attorney and that his CV does not “claim that I was a practising attorney at the time of applying for the position”. However, he does not address the statement in his covering letter which stated that “I have all the attributes sought for the position and would like to be considered for the position”.

Lying by omission

[28]	Lying by omission includes withholding material information in order to gain something in return.

[29]	The Third Respondent lied by omission by leaving out one or more important facts in order to foster a misconception. He did all these in order to gain appointment to the position he applied for, well knowing that the Applicant would not appoint him if they knew that he was suspended from practising as an attorney as such disclosure would leave him short of the minimum requirements. 

[30]	Dishonesty, as an aspect of misconduct, is a generic term embracing all forms of conduct involving deception. The LAC in Nedcor Bank Ltd v Frank and others defined dishonesty as a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently. Deceitfulness can manifest itself in various forms, which include providing false information, non-disclosure of information, pilfering, theft and fraud. 

[31]	In the case of Intercape Ferreira Mainliner (Pty) Ltd v McWade and others, the Labour Court, per Van Niekerk J, upheld a review application after the CCMA reinstated an employee who failed to disclose material information to his employer during the interview.

[32]	Van Niekerk J held that an employee may be required to disclose information not specifically requested if that information is material to the decision to employ, or where a question is asked, that a less than honest and complete answer might form the basis for a dismissal when the truth is ultimately discovered.

[33]	The abovementioned case highlights the fact that, where there is material information that may impact an employer’s decision to appoint a prospective employee, this must be disclosed by the prospective employee during the interview process. Failure to disclose in such circumstances will constitute misconduct which may lead to dismissal. An employee cannot claim that he was never asked such kind of a question.

[34]	It is therefore clear that the First Respondent ignored evidence before him which is material in that, the Third Respondent had claimed to have met all of the attributes for appointment to the advertised position, such attributes would include being an admitted attorney, and that at the time of the application, he was no longer one.

[35]	It is my view that, if such a version was to be sustained, that the Third Respondent indeed informed the interview panel that he was no longer a practising attorney, he would have been duty-bound to rebut the version of his employer by calling any of the panellists who interviewed him to testify to his version, including his then supervisor Mr. Christopher Ntshingwa whom he alleged to have disclosed to.

[36]	That could have been done by way of a subpoena if they were not willing to come on their own. The Third Respondent is the one who was supposed to call a witness to corroborate his version that he made a disclosure not the other way round as he alleged.

Failure to call a witness

[37]	The failure to call a witness was enunciated in ABSA Investment Management Services (Pty) Ltd v Crowhurst as follows: 
‘…it is long established that the failure of a party to call an available witness may found an adverse inference, the inference being that the witness will not support - and may even damage - that party's case.’

[38]	The court in General Food Industries Ltd v Food and Allied Workers Union said the following, which in my view, can equally be applied in the current matter: 
‘…In my view, if the respondent wanted to challenge the appellant's version of what transpired at certain meetings and union officials or shopstewards were present at such meetings, it should have adduced their evidence. However, it was up to the respondent to make the decision to call or not to call a witness in this regard. In the absence of such evidence, if there were two versions the court would accept the evidence of the appellant's witnesses in so far as such evidence emerged unscathed from the rigours of cross-examination.’

[39]	The Court in Simelane and Others v Letamo Estate adopted a similar approach and said: 
‘Failure to produce a witness who is available and who is clearly able to give relevant evidence leads to an adverse inference being drawn by the court.’

[40]	In Elgin Fireclays Ltd v Webb, the following was said: 
‘[I]t is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts before the trial court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him… But the inference is only a proper one if the evidence is available and if it would elucidate facts.’

[41]	The First Respondent further found that the Third Respondent had no duty to disclose that he was suspended from practising as an attorney nor was there a rule that he ought to have disclosed.

[42]	I wish to state that an employee owes their employers a common law duty of good faith and he does not have to be asked if he once misconducted himself in the past, most importantly, in a case similar to this, where the Third Respondent was suspended from practising as an attorney as a result of an irregularity in his trust account.

[43]	I find it strange that the First Respondent could see nothing wrong with the Third Respondent’s failure to disclose to his employers that he was no longer an attorney but stated that being a practising attorney was not the only requirement for being appointed to the position.

[44]	The only reason that is attributed to such omission is that the Third Respondent was aware that, had he disclosed his suspension to the panel, they would not have employed him as he did not meet the requirements of the post as advertised.

[45]	The First Respondent’s conduct is irregular in that when one looks at the covering letter of the application, the Third Respondent stated that he had met all of the requirements of the post and that this on its own gives one the impression that he is still a fit and proper person or he is still on the roll of attorneys.

[46]	The nature and extent of the obligation to disclose facts during the recruitment process was defined by this court in Galesitoe v Commission for Conciliation, Mediation and Arbitration and others, where the court said the following: 
‘Accordingly, it was not unreasonable to infer that a person applying for the senior level of post in question would have realised that the nature of his relationship with his former employer was a material consideration for his prospective new employer and could affect his employment prospects. That would have given rise to the obligation to disclose having regard to the principle enunciated in ABSA v Fouche which the LAC and the LC followed in the Fipaza case.’

[47]	The First Respondent’s reasoning that the position which Mr Mahlong applied for did not require him to appear in court is skewed and legally flawed in that the requirement of the post is clear – that they needed someone who was admitted as an attorney, whether he was going to appear in court is immaterial.

[48]	It is not unreasonable to expect that where there is material information that may impact upon an employer’s decision to appoint an employee, this must be disclosed by the employee. Failure to disclose in such circumstances will constitute misconduct which may lead to dismissal. This kind of disclosure does not have to be in writing but implied as an employment relationship is based on trust.

[49]	It is therefore on this basis that I find that the Third Respondent had a duty to disclose to his employer that he was suspended from practising as an attorney. When objectively considered, a failure to disclose matters that included allegations of irregularity in the trust account of an attorney is material, any reasonable employer would wish to investigate these facts before concluding a recruitment process.

[50]	In the circumstances, I am not persuaded that the dismissal of the Third Respondent was substantively unfair.

[51]	Given my conclusion in relation to the charge of non-disclosure of material information, it is not necessary for me to consider the Applicant’s remaining grounds for review, or the arbitrator’s findings in relation to the remaining charge of misconduct brought against the employee which the Applicant argues that the arbitrator failed to deal with. 

Procedural Fairness

[52]	Section 188 of the LRA states that a dismissal is unfair if the employer fails to prove that it was effected in accordance with a fair procedure.

[53]	The principle of audi alteram partem must always be observed when a decision to dismiss an employee is being considered.

[54]	Strictly speaking, no employee may be dismissed without a hearing being held first. This principle is a cornerstone of our labour law.

[55]	While the fundamental legal principle is that the employee has a right to a hearing, he or she can also waive that right expressly or by conduct. In other words, the employee abdicates his or her right to be present. When that happens, the employer can proceed in absentia. 

[56]	In casu, the First Respondent found that the dismissal of the Third Respondent was also procedurally unfair in that the employer did not provide sufficient and proper service of the notice of set down of the disciplinary hearing. 

[57]	The Applicant argues that they proceeded with the hearing in the absence of the Third Respondent because he elected not to appear after proper service was done in the form of an email sent to his email address which he initially provided.

[58]	The Third Respondent on the other hand argued that the email provided was only meant for receiving point in limine documents but there is no proof to support those averments and such argument cannot be sustained.

[59]	It is common cause between the parties that the Third Respondent has been receiving disciplinary hearing documents through email which he provided even if they related to points in limine he raised.

[60]	It is not convincing that the Third Respondent did not receive the notice of set down because even his erstwhile representative does not dispute receipt of same, he only stated that he lacked instructions to represent him. 

[61]	The right to fair hearing and thus a fair procedure in disciplinary hearings, is a fundamental right. This right was extended to the Third Respondent and a right he deprived himself of by electing not to attend the disciplinary hearing.

[62]	In CEPPWAWU and Others v Metrofile (Pty) Ltd, the LAC stated as follows:
‘The right to be afforded a fair hearing before one’s dismissal is indeed an integral part of our law. This right is explicitly recognised by the Act and has been restated in numerous decisions of this Court. However, once an employer institutes disciplinary action and gives the affected employee notice thereof, it is open to the employee to attend or refuse to attend the enquiry. Should the employee refuse to attend the enquiry such employee must be prepared to accept the consequences thereof, one of which is that the enquiry will proceed in his absence and adverse findings may be made.’

[63]	The Third Respondent never informed the Applicant that he is no longer using the email address that he provided and as a legally trained person, he should have been aware of the consequences of not sharing that information if it is anything to be believed. I am of the view that since the Third Respondent has in the past received documents through the email used to communicate the dates of the hearing, proper service was done. 

[64]	Based on the above, I am convinced that the Third Respondent waived his right to be heard as he elected not to appear before the disciplinary enquiry.

Costs

[65]	Counsel for the Applicant prayed for costs and on the other hand, Mr Steyn argued that it will be unfair to award costs against them as they are a trade union trying to find justice for its members. 

[66]	In the case of Long v South African Breweries and others and a related matter, the Constitutional Court affirmed the approach to the exercise of a discretion in terms of section 162 in awarding costs in this court: 
‘It is well accepted that in labour matters, the general principle that costs follow the result does not apply…’

[67]	This principle is based on section 162 of the LRA, which reads: 
‘(1)	The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness. 
(2)	When deciding whether or not to order the payment of costs, the Labour Court may take into account – 
(a)	whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and 
(b)	the conduct of the parties— 
(i)	in proceeding with or defending the matter before the Court; and 
(ii)	during the proceedings before the Court.’

[68]	In my view, Courts must guard against awarding costs orders where there is no evidence that the application was meritless, otherwise, litigants or workers are going to be deterred from challenging or fighting for justice in the workplace for fear of costs orders.

[69]	In the premise, I make the following orders:

Order

1.	The finding of the First Respondent in the arbitration award dated 27 September 2019 under case number JMD111804 that the City of Johannesburg has not succeeded in discharging the onus of proof that the dismissal of the Third Respondent was both procedurally and substantively fair, and his consequent finding that the Third Respondent’s dismissal was both procedurally and substantively unfair, together with the relief set out in paragraph 88,89,90 and 91 of the arbitration award are reviewed and set aside. 
2.	The abovementioned findings are substituted with an order that the dismissal of the Third Respondent was procedurally and substantively fair. 
3.	No order is made as to costs.

N Tshisevhe
Acting Judge of the Labour Court of South Africa

Appearances: 

For the Applicant:		Adv. W. Hutchinson
Instructed by:		Charles Beckenstrater
For the Respondent:	Morkel Steyn
Instructed by:		Union Official