This is one of those rare instances where the outcome, as opposed to the process, of an award was reviewed and set aside.
“The dismissal of the employee is procedurally and substantively fair.”
An interesting aspect related to the admission of hearsay evidence concerning customers.
Background
The employer dismissed the employee for falsifying his invoice book to conceal money he had stolen from the employer.
The employee referred an unfair dismissal dispute to the CCMA where an award was made in the employee’s favour. If was found there was no fair reason to dismiss relating to conduct.
The arbitrator found that other employees with similar shortages in their invoice books were not dealt with in the same way. The employer contended that the arbitrator, in ordering the reinstatement of the employee, failed to take into account important evidence regarding the alleged misconduct.
The employer applied to the Labour Court to review and set aside the award, but it was confirmed. The employer then appealed against that order to the Labour Appeal Court (LAC).
The LAC held that there was sufficient evidence of the employee’s misconduct, and disagreed that there was evidence of inconsistent application of discipline by the employer.
Properly evaluated the evidence at the arbitration showed that any reasonable person could only conclude that the employee had seriously misbehaved and that the misconduct rendered the continued employment of the employee intolerable. There was a valid and fair reason to dismiss the employee.
Extracts from the judgment
“[22] In terms of section 138(1) of the LRA a commissioner is required to conduct,
‘. . . arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities’.”
“[23] In Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC) [also reported at [2008] JOL 20811 (CC) – Ed] at 1130 paragraph [110] the following was stated:
‘To summarise, Carephone 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 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’.”
“[24] In arriving at his decision to reinstate the [employee] to his previous employment, the commissioner failed to take the following important factors into account:
(a) initially the [employee] refused to submit his invoice book to the [employer] for scrutiny;
(b) he submitted it only after he had removed the original invoices from which action the only reasonable inference that can be drawn is that he did not want the [employer] to see what was recorded on the invoices;
(c) if the original invoices were valid it would have enabled the [employer] to recover debts owed to it by the customer;
(d) that the [employee] had a previous record for misconduct and that the present misconduct was committed before the expiry of the 12-months’ final written warning issued to him in respect of shortages for which he was still paying at the time;
(e) that in the past the [employer’s] employee counselled the [employee] in an attempt to dissuade him from his conduct;
(f) on one occasion the [employee] had to borrow money from his brother in order to pay for his shortages.”
“[25] Mr Van As, counsel for the [employer], criticised the Commissioner for not having accepted the hearsay evidence tendered by the [employer’s] witnesses regarding what the customer had told them. This criticism is, I believe, well founded.”
“[26] In my view, the hearsay evidence given by the [employer’s] witnesses is supported by the probabilities of the case and should have been accepted by the Commissioner.”
“[27] Even if one accepts the finding of the Commissioner that the hearsay evidence is inadmissible, there is more than enough evidence on record to show that the [employee] committed misconduct.”
“[28] Lastly, the evidence does not show that there has been inconsistent application of discipline by the [employer]. The other drivers referred to by the [employee], against whom no disciplinary inquiries were held, did not commit fraud as the [employee] did in this case. Those drivers experienced shortages in circumstances that were acceptable to the [employer].”
“[29] If the [employee] acted in a bona fide fashion, he would have handed his invoice book to the [employer’s] employee who would have been able, on the strength thereof, to collect the outstanding amounts from the customer. His refusal to submit the invoice book to its owner for scrutiny taken together with the other evidence referred to above shows that he had something to hide from the [employer].”
“[30] In my view, on a proper evaluation of the evidence at the arbitration the only conclusion that any reasonable person could arrived at was that the [employee] had committed a serious misconduct and that the misconduct rendered the continued employment of the [employee] by the [employer] intolerable.”
“[31] In the circumstances and applying the principle laid down in Sidumo I come to the conclusion that the decision reached by the Commissioner is one which no reasonable decision-maker could reach.”
“[32] Clearly the sanction of dismissal is the only appropriate sanction, for the serious misconduct committed by the [employee] while still on a final written warning and being cautioned that future conduct where money collected and not paid over would not be tolerable.”