IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
REPORTABLE
CASE NO: C814/06
In the matter between:
NUM obo
I KGAPENG Applicant
and
COMMISSIONER FOR CONCILIATION,
MEDIATION AND ARBITRATION
First
Respondent
S.M. OSMAN N.O Second
Respondent
HOTAZEL
MANGANIES MINE Third
Respondent
JUDGMENT
Molahlehi J
Introduction
This is an application to review the arbitration award
under case number NC760/06 dated 29th
November 2006 issued by the second respondent, (“the
commissioner”). In terms of the arbitration award, the
commissioner
found the dismissal of the applicant who was
represented by NUM to have been both substantively and procedurally
fair.
The third respondent has applied for condonation for
the late filing of its answering affidavit. Having regard to the
explanation
tendered for the lateness of the filing of the answering
affidavit, I see no reason why such late filing should not be
condoned.
Background facts
The applicant, Mr Kgapeng was prior to his dismissal by
third respondent employed as a miner during June 2006. The applicant
was
charged and dismissed for allegedly tempering with the dates on
a doctor’s sick note.
It is common cause that Dr Grobler issued a sick note
advising that Mr Kgakatsi (Kgakatsi) was not able to attend work
from the
18th
September 2005 to 20th
September 2005. Kgakatsi submitted such a medical certificate to the
third respondent for the purposes of explaining his absence
from
work on those days reflected therein.
The sick note when presented to the third respondent
apparently appeared to have been interfered with. It was for this
reason
that the third respondent conducted an investigation about
the authencity of the medical certificate.
During the investigation, the applicant made a
statement which indicated Kgakatsi was responsible for the change of
the dates
on the medical certificate. Kgakatsi was as a result of
the statement made by the applicant charged with misconduct, found
guilty
and dismissed. However on appeal it was found that the person
who tempered with the sick note was the employee and not Kgakatsi.
The chairperson of the appeal upheld the appeal and directed that
Kgakatsi be re-instated and then issued a final written warning
against him.
Following the outcome of the appeal hearing of
Kgakatsi, the applicant was charged with the following:
“6.1 making falls written and oral statements
on the 25th
October 2005 and 1 November 2005 which led to Kgakatsi’s
dismissal, and
6.2 forgery in that Kgapeng change the dates on the
medical certificate as issued by Doctor Grobler.”
The employee being unhappy with the outcome of the
disciplinary hearing lodged an appeal. His appeal was unsuccessful
but made
subject to further investigation. A further appeal was
convened at the end of March 2006 cheered by a different person to
the
one who cheered the earlier one. A second appeal was dismissed
and the dismissal of the applicant confirmed.
The employee being unhappy with the outcome of the
appeal hearing then referred a dispute concerning an alleged unfair
dismissal
to the CCMA challenging both the procedural and
substantive fairness of his dismissal.
The Grounds for Review and the Award
The applicant contended that the commissioner committed
gross irregularity by accepting incorrect and contradictory evidence
and
thus rendered the outcome concerning the fairness of his
dismissal unjustified. The employee further criticised the
commissioner
for accepting hearsay evidence contrary to the
provisions to the Law of Evidence Amendment Act 45 of 1998.
The commissioner in his analysis of the evidence
presented during the arbitration hearing started of by indicating
that the applicant
failed to challenge the version of the respondent
that the dismissal was substantively fair. In this respect the
commissioner
found that the employee was responsible for the
alteration of the sick note and that he was aware that that conduct
constituted
an act of dishonesty.
The commissioner says that the sanction of dismissal
was in line with the policy of the respondent and therefore fair.
The commissioner
arrived at the conclusion that the dismissal of the
applicant was fair on the bases of the evidence of Mr Serema
(“Serema”),
who testified that the doctor had not change
the dates on the medical certificate and that he was told by
Kgakatsi that the applicant
had changed the dates on the medical
certificate.
The doctor’s receptionist, Miss Motlapi
(“Motlapi”) testified that she was approached by the
applicant and Kgakatsi
who told her that the applicant had cancelled
the sick note. Motlapi testified further that Kgakatsi indicated
that they need
a sick note otherwise the applicant could be
dismissed and further nobody should know that they had visited the
doctors room.
Kgaketsi also requested that Motlapi should, if asked,
accept that the date on the medical certificate was changed by her.
It
would appear that initially Motlapi refused but under pressure
agreed to comply with the request by the applicant and Kgakatsi.
She
however testified that although she had agreed as per the request by
the applicant and Kgakatsi she had resolved on her own
that she
would not do it.
The commissioner accepted the version of Motlapi and
found her to be a credible witness who was eager to tell the truth.
The chairperson of the appeal hearing testified that he
adjourned the case when Kgakatsi accused the applicant of having
changed
the sick note. He testified that he adjourned the hearing
for further investigation and avoid having to prejudice the
employee.
The chairperson of the disciplinary hearing testified
that the applicant did not dispute the allegations which were made
against
him. He also found that the applicant contradicted himself
during the hearing when he said that he did not change the sick note
and later on admitted having done so.
The investigator of the allegations against the
applicant, Mr Prinsloo (“Prinsloo”) testified that he
interviewed
Dr Grobler who indicated that he had not made changes to
the sick note.
The case of the applicant during the arbitration
hearing was that he had accepted the medical certificate from
Kgakatsi and that
he did not notice the changes until he was so
informed by the HR department. He denied ever visiting the doctor’s
room
to have the sick note changed.
The commissioner found that the applicant was not a
satisfactory witness because he failed to answer questions during
cross examination
or pretended not to understand questions put to
him. According to the commissioner the applicant claimed to have
been confused
because he had two sick notes. In this respect the
commissioner had the following to say:
“23. The applicant proved
to be a deplorable witness and was often hesitant in answering
questions and behaved as if he did
not understand the questions,
unlike the enthusiasm in his testimony in chief. I am not inclined
towards the version of the applicant
I am of the opinion that though
the reason for the applicant having tampered with the sick note is
not known, the applicant had
in fact tampered with the note. The
applicant is therefore guilty as charged.
Further to the above I am not satisfied that the
applicant was notified of the disciplinary hearing. Mr Seremi had
issued preliminary
charges to the applicant. According to the
policies of the respondent it was satisfactory to issue preliminary
charges whilst
the investigation was conducted into the misconduct
of an accused. The applicant on page 33 signed for the notice. He
testified
that the applicant did not challenge the evidence at the
disciplinary hearing nor did he cross-examine any of the witnesses.
The applicant had also lodged on appeal. The preliminary
notification would be followed by a formal notification. This gives
the respondent the opportunity to articulate it’s charges”
Evaluation
The test for review is set out in Sidumo
& Another v Rustenburg Platinum Mine Ltd & Others (2007) 28
ILJ 2405 (CC) paragraph 110 as follows:
“To
summarise, Care phone
held that section 145 of the LRA was suffused by the then
constitutional standard that the outcome of an administrative
decision
should be justifiable in relation to the reasons given for
it. The better approach is that section 145 is now suffused by the
constitutional standard of reasonableness. That standard is the one
explained in Bato Star:
Is the decision reached by the commissioner is one that a reasonable
decision-maker could not reach? Applying it will give effect
not
only to the constitutional right to fair labour practices, but also
to the right to administrative action which is lawful,
reasonable and
procedurally fair.”
In my view, the commissioner’s decision cannot be
faulted for unreasonableness. As appears from the above discussion
it
is apparent that the commissioner accepted the version of the
respondent in coming to the conclusion that the dismissal was fair.
It is common cause that Dr Globber issued a sick note
which was presented to the third respondent. The employee did not
dispute
that the date on the sick note had been altered but however
disputed that he was responsible for the alteration.
The version of Kgakatsi is that he and the applicant
visited the doctor’s rooms and requested the receptionist to
say that
she was responsible for changing the dates on the sick
note. This version was confirmed by the receptionist who as
indicated
earlier had initially refused to comply with the request
but under pressure agreed whilst knowing that she would not do it.
It is apparent from the reading of the arbitration
award that the commissioner resolved the conflicting versions as to
who was
responsible for the alteration of the sick note by way of a
credibility finding.
The approach adopted by the commissioner is correct and
is in line with the one established in our law. See also Rex
v Dhlungwayo 1948 (2) SA 677 (A),
City Lodge Hotels Ltd v Gildenhuys NO & Others (1999)
20 ILJ 2332 (LC) and De Beers Consolidated
Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
As concerning the appropriateness of the sanction it
has already been indicated above that the commissioner found the
sanction
of dismissal to be in line with policy of the respondent
and accordingly appropriate in the circumstances. Thought out the
process
the applicant denied involvement in the alteration of the
sick note. He also denied all other facts which are clearly in my
view
supported, without any doubt, by the probabilities. He for
instance denied having visited the doctor’s rooms in the face
of un-contradicted evidence of both Motlapi and Kgakatsi.
In De Beers Consolidated Mines
Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC) at
1059 D- E it was held that:
“Acknowledgment of the
wrongdoing is the first step towards rehabilitation. In the absence
of a recommittement to the employers’
workplace values, an
employee cannot hope to re-establish the trust which he himself has
broken. Where, as in this case, an employee,
over and above having
committed an act of dishonesty, falsely denies having done so, an
employer would, particularly where z high
degree of trust is reposed
in an employee, be legitimately entitled to say to itself that the
risk of continuing to employ the
offender is unacceptably great.”
Inconsistency
The approach adopted when dealing with the issue of
inconsistency in disciplinary hearings is set out in SACCAWU
& Others v Irvin Johnson Limited (1999) ILJ 2303 (LAC) at
2313, paragraph 29 the court held that:
“It was argued before us
by Mr Grobler for the appellants that by not dismissing four
employees who had also participated in the
demonstration, the
respondent applied discipline inconsistently. It is really the
perception of bias inherent in selective discipline
which makes it
unfair. Where, however, one is faced with a large number of offending
employees, the best that one can hope for
is reasonable consistency.
Some inconsistency is the price to be paid for flexibility, which
requires the exercise of a discretion
in each individual case. If a
chairperson conscientiously and honestly, but incorrectly, exercises
his or her discretion in a particular
case in a particular way, it
would mean that there was unfairness towards the other employees. It
would mean no more than that
his or her assessment of gravity of the
disciplinary offence was wrong. It cannot be fair that the other
employees profit from
that kind of wrong decision. In a case of a
plurality of dismissals, a wrong decision can only be unfair it is
capricious, or induced
by improper motives or, worse, by a
discriminating management policy.”
In the present instance it cannot be disputed that
Kgakatsi had some role to play in the dishonest act associated with
the altering
of the sick note. He accompanied the applicant to the
doctor’s room to persuade Motlapi to lie about how the change
to
the sick note was effected. He was thus aware of the offence
committed by the applicant. However the offence committed by
Kgakatsi
was of a lesser server nature than that of the applicant.
The respondent took action against Kgakatsi but on the bases of the
severity of the offence imposed a final written warning and not
dismissal as was the case with the applicant.
Hearsay evidence
The contention that the commissioner allowed hearsay
evidence is based on the testimony of both Serema and Prinsloo who
testified
that Dr Grobler never made changes to the sick note. Dr
Grobler never testified during the arbitration hearing.
Hearsay evidence in our law is governed by the
provisions of section 3(1) of the Law of Evidence Amendment Act 45
of 1988 (LEAA)
which provides that hearsay evidence shall not be
admitted as evidence, unless the party against whom such is to be
adduced agrees
to its admission-, the person upon whose credibility
the probative value of the evidence depends testifies or –
“(c)
The court having regard to -
(i)
The nature of the proceedings,
(ii)
The nature of the evidence:
(iii) The
purpose for which the evidence is tendered-
(iv) The
probative value of the evidence-,
(v) The
reason why the evidence is not given by the person upon whose
credibility the probative value of
such evidence depends-,
(vi) Any
prejudice to a party which the admission of such evidence might
entail-, and
(vii) Any other
factor which should in the opinion of the court be taken into account
is of the opinion that such
evidence should be admitted in the
interests of justice.”
It is now well established that
arbitration proceedings are covered by the provisions of the LEAA.
See Southern Sun
Hotels (Pty) Ltd v SA Commercial Catering & Allied Workers Union
& another (2000) 21 ILJ 1315 (LAC) and (Swiss
South Africa (Pty)
Ltd v Louw NO & others (2006) 27 ILJ 395 (LC)- [2006] 4 BLLR 373
(LC) President
of the Republic of South Africa v South African Rugby Football Union
and Others 1999 (10) BCLR 1059 (CC).
In Makhathini v Road Accident
Fund (2002) 1 ALL SA 413 (A) the Supreme
Court of Appeal in dealing with the issue of admission of hearsay
evidence had the following to say:
“It seems to me that the
purpose of the amendment was to permit hearsay
evidence
in certain circumstances where the application of rigid and somewhat
archaic principles might frustrate the interests of justice.
The
exclusion of the hearsay
statement of an otherwise reliable person whose testimony cannot be
obtained might be a far greater injustice than any uncertainty
which
may result from its admission. Moreover, the fact that the statement
is untested by cross-examination is a factor to be taken
into account
in assessing its probative value. . . . There is no
principle to be extracted from the Act that it is to
be applied only
sparingly. On the contrary, the court is bound to apply it when so
required by the interests of justice.
In each case the factors set out
in section 3(1)
(c) are to
be considered in the light of the facts of the case. The weight to be
accorded to such evidence,
once it is admitted, in the assessment of the totality of the
evidence
adduced, is a distinct question.
The factors set out in section
3(1) (c) (i)–(vii) should
not be considered in isolation. One should approach the application
of section 3(1)
(c) on the
basis that these factors are interrelated and that they overlap. See
Hewan v Kourie NO and another 1993 (3) SA 233
(T) at
239B–C and Schmidt and Rademeyer’s Bewysreg (supra) at
481 where the learned authors state.”
In the present instance it is important to note that
the employee never disputed that the doctor’s sick note was
altered
and that those alterations were not made by Dr Grobler. The
evidence of the witnesses of the respondent who testified that Dr
Grobler did not alter the sick note was not challenged during cross
examination. The respondent was thus on the bases of the above
authority entitled to assume that the version of the two witnesses
was accepted as being correct and therefore the necessity
to call Dr
Grobler to testify never arose. Thus the approach adopted by the
commissioner cannot be faulted as being irregular
or unreasonable.
In the light of the above evaluation I am of the view
that the applicants have failed to make out a case justifying
interference
with the arbitration award of the commissioner.
Therefore the applicant’s application to review and set aside
the commissioner
arbitration award stands to fail. I see no reason
in law and fairness why the costs should not follow the result.
In the premises the review application is dismissed
with costs.
_______________
Molahlehi J
Date of Hearing : 28 January 2010
Date of Judgment : 23 April 2010
Appearances
For the Applicant : Adv N Cloete
Instructed by : Neville Cloete Attorneys
For the Respondent: Adv Polelis
Instructed by : Nkaiseng Chenia Baba Pienaar Swart Inc
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