Applying zero tolerance: Dismissal valid and fair

Note: Footnotes omitted and emphasis added

[1] This is an appeal against the judgment and order of the Labour Court (Gwuanza AJ) dismissing the application for review and the setting aside of the arbitration award of the second respondent (the arbitrator) made under the auspices of the first respondent, the General Public Service Sectoral Bargaining Council (GPPSBC). The appeal is with the leave of the Labour Court.

[2] The appellant was employed by the Department of Justice & Correctional Services (the Department of Justice) as a deputy director in the labour relations unit since December 2010. Her job entailed travelling to various areas outside of Pretoria on behalf of the Department of Justice to conduct workshops. She would hire a motor vehicle, at the cost of the Department of Justice, to undertake these journeys.

[3] In 2013, the department investigated a number of misconduct allegations against the appellant, which included the use of the work cell phone, usage of a hired motor vehicle without authorisation and visits to various pornographic and obscene sites on the work computer.

She was subsequently charged with 36 counts of misconduct.

[4] A disciplinary hearing was held at which she was found guilty of 35 counts of misconduct and dismissed. Her internal appeal against her dismissal was unsuccessful and she was dismissed by the department of Justice on 24 October 2014.

[5] She referred a dispute to the GPSSBC challenging the substantive fairness of her dismissal in relation to all 35 counts. The arbitrator found the appellant’s dismissal to be substantively fair and that dismissal was an appropriate sanction.

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[9] The test to be applied by a court sitting in review of an arbitration award is trite. In brief, it is whether ‘the decision reached by the commissioner is one that a reasonable decision maker could not reach’.

[10] The appellant worked under Mr Dicksen Muzwayine (Mr Muzwayine) in the labour relations unit at the Department of Justice in Pretoria. He was the director of the labour relations unit. As the appellant’s superior, he was responsible for authorising all official travel which the appellant undertook on behalf of the Department of Justice. This included any vehicles which she needed to hire for purposes of her travel.

Once Mr Muzwayine had authorised her travel, she was then able to hire a car on the basis of that authorisation through Travel with Flair (TWF). TWF arranged for the vehicle to be hired through a carhire service such as Avis.

[11] The appellant was required to complete a VA26 form setting out the purpose of her official travel, the dates of travel and the date of the collection of the motor vehicle from, and its return to the car hire service. The VA26 form had to be signed by the appellant and counter signed by Mr Muzwayine.

[12] There are three VA26 forms that are relevant to this appeal. Two of the three forms have the same authority no: HR45/2013. The authority number of the third form is 33/2013.

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[17] In summary, Mr Makhobotloane’s testimony was that ‘if there was anything which raised my eyebrows so to speak’ in relation to all three forms, was that they were all authorised on the same day (28 February 2013). He wondered how Mr Muzwayine could have known on 28 February 2013 when he authorised the hire of the motor vehicle, that the conference was not going to end on 8 or 9 March as stated on the VA26 form, but that it was going to continue from 11 to 18 March 2013.

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[26] There were two conflicting versions of the evidence before the commissioner which the Labour Court aptly described as follows:

‘The commissioner was confronted with two conflicting versions. On the one hand, Mr Muzwayine alleged that he was not aware of form 2 and, in particular, he did not know that the typed dates “0408 March 2013” had been crossed out and replaced in handwriting with “1115 March 2013 continuation workshop”.

On the other hand, Ms Malaka alleged that she called Mr Muzwayine to inform him of the amendment of the dates while she was at the office of TWF. Ms Malaka also alleged that there were no written rules relating to the generation and completion of VA26 forms and, accordingly, she was not in contravention of any rule.’

[27] The legal approach generally employed by our courts in resolving factual disputes is trite: to reach a conclusion on the disputed issues, the court should make a finding on the credibility of the factual witnesses, their reliability and the probabilities.

The appellant contends that the Labour Court erred in focusing on the probabilities without dealing with the credibility of the witnesses and the reliability of their evidence.

This submission is not sustainable. As a judge, sitting in review of a decision of an arbitrator, she was entitled to assess the evidence that was led at the arbitration proceedings, and make a finding based on the probabilities. In doing so, she weighed up the evidence and concluded that the appellant’s explanation for having altered the dates on form 2, and thereafter submitting it to TWF for purposes of hiring the vehicle, was unconvincing and improbable on the evidence. Hence her conclusion, that the arbitrator ‘correctly weighed up the probabilities against the cogency of the versions that were presented to him’, is not open to question.

[28] The appellant contended that there were no rules that prohibited the alteration of a VA26 form. The Labour Court found, rightly so in my view, that the appellant’s version on this aspect was unconvincing and not probable on the basis of the position she held in the Department of Justice, namely deputy director. It is established on the evidence that a VA26 form is a voucher which has value in money. Hence if an error is made while completing the form, a new form must be submitted. As a deputy director whose job involved regular travel for work purposes, the probabilities suggest that the appellant would have been aware of this.

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[32] The gravity of the appellant’s conduct had serious implications for the Department of Justice, which had suffered financial loss as a result of the excessive kilometres that the appellant travelled with the motor vehicle.

On this question, the Labour Court correctly concluded that the appellant had committed misconduct amounting to dishonesty as alleged.

[33] In an employment relationship, it is an implied term of the contract of employment that the employee will act in good faith towards, and serve, her employer with honesty. As a deputy director in the Department of Justice, the appellant occupied a position of trust which enjoined her to conduct herself honestly towards the department, which has a zero tolerance policy to cases of dishonesty. The deliberate falsification of documents to secure a vehicle for her own personal use is a serious offence that implicated the appellant’s honesty.

That the value of the loss suffered by the employer was negligible is not a mitigating factor. This court has taken a strict approach to dishonest conduct, even where the loss to the employer has been relatively small.

[34] The evidence reveals that the appellant’s dishonest conduct rendered continued employment intolerable and incapable of restitution. Conduct, such as we have here, is incompatible with the trust and confidence necessary for the continuation of the employment relationship. The Department of Justice was entitled, in the circumstances, to end the employment relationship.

Accordingly, the Labour Court’s decision, endorsing the finding of the arbitrator that the sanction of dismissal as imposed by the Department of Justice was clearly, on a consideration of the evidence as a whole, a decision that a reasonable decision maker could have arrived at based on the evidence that was before him.

[35] For all these reasons, the appeal falls to be dismissed. Insofar as costs are concerned, I consider it fair and just, in the circumstances of approach to dishonest conduct, even where the loss to the employer has been relatively small.

[36] In the result, I make the following order: The appeal is dismissed.

Summary

Courtesy of ILJ report

“Dismissal—Dishonesty—Implied term of contract of employment that employee will act in good faith towards and serve employer with honesty.

Evidence—Arbitration proceedings—Conflicting versions—To reach conclusion on disputed issues, court reviewing arbitration award to make finding on credibility
of factual witnesses, their reliability and probabilities.

Evidence—Witness—Conflicting versions—To reach conclusion on disputed issues, court reviewing arbitration award to make finding on credibility of factual
witnesses, their reliability and probabilities.”