South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others [2011] ZALAC 16; JA 56/06 (3 August 2011)

Principle:

An arbitrator may not disregard the requirements of an advertised post or the fact that an applicant has provided false information which renders the minimum requirement for the post irrelevant.

Facts:

The employer advertised to fill a position of an “internal investigator”. The incumbent would be required to investigate alleged wrongful conduct by members of the appellant’s staff. One of the minimum requirements outlined in the advertisement was that the candidate must be in possession of a valid code 8 driver’s licence to qualify to fill the position. This, like the other minimum requirements, was crucial for the appointment to the post of an investigator because, if appointed to the position, the incumbent would be required to go into the field in order to conduct the investigations.

Only those who met the minimum requirements as set out in the advertisement were short-listed to fill the position. Hence, if an applicant was not in possession of a valid code 8 driver’s licence, she/he would not be short-listed, interviewed or considered for the position. Evidence was led by the appellant to confirm that an applicant who was only in possession of a learners licence was regarded as not meeting the minimum requirements for the position and as such disqualified from being considered for the position.

The employee applied for the position. In her curriculum vitae (CV), she represented to be in possession of a valid code 8 driver’s licence and that she satisfied all the minimum requirements for the position advertised. She was thus short-listed, performed satisfactorily at the interview and was the successful candidate. Sometime after she took up her new position, the employer discovered that at the time that the employee applied for the position, was interviewed she was not in possession of a valid driver’s licence as claimed in her CV. This discovery was made after the employee was required to go into the field to investigate an alleged misconduct, but could not do so because she did not have a driver’s licence and could therefore not be given the company car to drive.

The employer viewed the employee’s conduct as amounting to dishonesty and charged her with serious misconduct. At the disciplinary hearing, the employee conceded that her CV did indicate that she was in possession of a valid driver’s licence but that representation was made erroneously; she had employed a person to type her CV and had indicated that she was in possession of a learner’s drivers licence. The typist mistakenly omitted to include the term “learner’s”. She had also not checked the CV before she submitted it. She added that it did not concern her that she did not have a valid driver’s licence at the time she applied for the position because she had a learner’s licence and would have obtained her licence in a short period of time.

The employee was nonetheless found guilty of misconduct and dismissed. Believing her dismissal to be unfair, she referred it as a dispute to the CCMA for conciliation. Conciliation failed to resolve the dispute and it was then referred to arbitration. The Commissioner believed that the “error was genuine” and in the circumstances dismissal as a penalty was unfair and unreasonable and ordered the appellant to “re-employ” the third respondent on a final written warning valid for six months.

The Labour Court, while acknowledging that that the employee supplied false information, agreed with the Commissioner that the false information was supplied in error”. The Labour Court found that the employee had not made a fraudulent misrepresentation, but had merely been negligent and that the Commissioner could not be faulted in finding that the error made by her was “genuine”. The Labour Court also took the view that although the employee’s employment contract provided that the giving of false information may lead to dismissal, this was not intended, said the court to “cover genuine errors”. The Labour Court then went on to say that it could also not interfere with the award because there was no evidence that the employee was appointed because she was in possession of a driver’s licence. In any event, she obtained a driver’s licence albeit sometime after she obtained the position and she had a clean record.

The Labour Appeal Court did not agree. The LAC was of the view that the employee knew that a valid driver’s licence was a pre-requisite for applying for the advertised post, and her explanation for submitting a CV with the wrong information was simply so untenable that it ought to have been rejected as being wholly improbable. The employee testified that she knew that only those applicants in possession of a valid driver’s licence would be considered for the post. So she knew that her application would not get off the starting blocks had she simply stated that she was only in possession of a learner’s licence. Her explanation that she failed to check her CV to ensure that it did not contain false information about meeting the requirements advertised, could not be accepted as being truthful.

Extract from the judgment:

[30] The Commissioner found that the third respondent had committed a misconduct in not providing the correct information in her CV and concluded that her misconduct was not serious because: she did not intend to deceive the appellant; she had made an innocent error in failing to peruse her CV before handing it in with her application (the CV was typed by someone else); and the appellant suffered no prejudice. The Commissioner, therefore, found that dismissal was too harsh a sanction and found it to be unfair.

[31] A commissioner arbitrating a dispute is required to evaluate and analyse the evidence presented at the arbitration. It does not appear that he did so. A consideration of the record and the award reflects a mere acceptance by the Commissioner of the ipse dixit of the third respondent without any analyses or evaluation. It is also difficult to comprehend how the commissioner could accept the third respondent’s explanation that her error was innocent without determining whether or not the explanation was in fact probable. The third respondent knew that a valid driver’s licence was a pre-requisite for applying for the advertised post and her explanation for submitting a CV with the wrong information was simply so untenable that it ought to have been rejected as being wholly improbable. The third respondent testified that she knew that only those applicants in possession of a valid driver’s licence would be considered for the post, she therefore knew that her application would not get off the starting blocks, had she simply stated that she was only in possession of a learner’s licence. Her explanation that she failed to check her CV to ensure that it did not contain false information about meeting the requirements advertised cannot be accepted as being truthful.

[32] The improbability of her version is further compounded by her claim that while she knew that she did not possess a valid driver’s licence, she was intent on applying for the post and indicating that she was only in possession of a learner’s licence, but adding that she expected to be in possession of a valid driver’s licence shortly. If that was what she had in mind in applying for the post, it would be all the more reason for her to ensure that her CV correctly reflected her intention.

[33] Had the commissioner properly considered the evidence, the inescapable conclusion he would have arrived at is that the respondent had deliberately misled the appellant.

[34] Furthermore the misconduct was indeed serious. This is evident from the consequence that followed the supply of the false information. It led to the third respondent being short-listed and being appointed at the expense of other properly qualified applicants. The unchallenged evidence of the appellant was that had it known that the third respondent only had a learner’s licence, she would not be short-listed and therefore she would not be considered for the job. It appears to me that the Commissioner ignored the fact that it was a requirement of the job that the applicant for that post should possess a valid driver’s licence. The Commissioner also ignored the provisions of the contract of employment. The provisions of the employment contract not only reinforced the fact that the applicant must be in possession of a valid driver’s licence, but required this driver’s licence as an integral part of the job specification to enable the incumbent to perform the functions allied to the post. The fact that the third respondent performed well at the interview and thus secured the post is irrelevant. It is also of no consequence as to how the discovery was made about her not having a driver’s licence. To place an employee who was guilty of dishonesty back in her position where honesty and integrity is paramount to the execution of duties, is to my mind grossly unreasonable, but more importantly, it cannot be right and proper to reinstate or re-employ a person in a position that was secured by the making of false statements. The third respondent secured for herself the post by falsely claiming that she had the minimum requirements for the position, in the circumstances, ordering her re-employment amounts to condoning her misconduct. This would mean that a candidate for employment can secure an advantage, to the prejudice of other applicants, by falsely claiming to have the minimum qualifications for the posts.

[35] To be dismissive of the third respondent providing false information renders the minimum requirement for the post irrelevant. It is certainly not for a commissioner to disregard the requirements of a post in conducting a misconduct hearing such as this.

[36] The Commissioner also misdirected himself in determining that the third respondent had been treated inconsistently. The third respondent claimed that the appellant had retained in its employ an internal investigator who was not in possession of a valid driver’s licence. This was found to be untrue. There was an employee who was suspected of having a forged driver’s licence. He was charged by the appellant and found not guilty by a properly constituted disciplinary enquiry. Hence, the question of inconsistency does not arise.

[37] In the circumstances, on the issue of the prospects of success, the appellant would succeed in reviewing and setting aside the award of the Commissioner on a number of grounds, primarily because of the Commissioner’s failure to consider the evidence before him properly or at all. Turning to the consideration of the prejudice that the parties will suffer if condonation is granted or refused, the appellant has been ordered to re-employ the respondent. If that order is allowed to stand, the appellant will have to back pay the appellant from the date of the award which is a substantial amount. The appellant is however the author of its own prejudice. The prejudice to the respondent on the other hand is substantial. She has an award in her favour and has waited for years for its implementation.

[38] As the Commissioner arrived at his decision without considering all of the evidence before him and he arrived at a conclusion that was not justifiable in relations to the evidence presented at the arbitration. In terms of the Sidumo and Another v Rustenburg Mines Ltd and Others, this was clearly a decision reached by the Commissioner that a reasonable decision-maker could not have reached.

[43] The appellant in its application for review prayed for the matter to be referred back to the CCMA to be arbitrated afresh by a commissioner other than the second respondent. I see no reason to do so. All the evidence the parties sought to lead was properly led, and based thereon there is only one conclusion that can be arrived at and that is that the dismissal was fair. I therefore see no reason to refer this matter back to the CCMA.

[44] With regard to costs, I am of the view that in terms both of law and equity there should be no order as to costs either in the Court a quo or in the appeal.

[45] In the result I make the following order:

(i) The appeal is reinstated.

(ii) Condonation for the late filing of the power of attorney and heads of argument is granted.

(iii) The appeal is upheld and the order of the Labour Court is substituted with the following order:

“The arbitration award handed down by the CCMA is hereby reviewed and set aside and substituted with an order declaring the dismissal of J.B Leketi by the South African Post Office Limited, fair.”

(iv) There is no order as to costs.