Association of Mineworkers & Construction Union on behalf of Molefe and Impala Platinum Ltd (2014) 35 ILJ 1690 (CCMA)
Award:
Molapo, Commissioner: Details of hearing and representation
[1] The matter was scheduled for arbitration and heard on 10 October 2013 and 3 December 2013 at the commission's Rustenburg office. The applicant, Ms Priscilla Gaopalelwe Molefe, was in attendance and represented by an AMCU official, Mr Timothy Mtshemla, whilst the respondent, Impala Platinum Ltd, was represented by its human resources manager, Mr Matthews Meyer. The proceedings were digitally recorded.
Issue to be decided
[2] I am required to decide whether the applicant's dismissal was procedurally fair (in relation to the chairperson making findings on unrelated charges) and substantively fair (in relation to the reason) and if not, whether she is entitled to the relief sought or any other appropriate relief.
Background to the issue
[3] The applicant, Ms Priscilla Gaopalelwe Molefe, was charged for two offences and found not guilty on both but found guilty and dismissed on a new charge which was only formulated by the chairperson of the hearing when the applicant made admissions which were not relevant to the charges she was called upon to answer. She was found guilty and dismissed for non-compliance with company policies and procedures in that she failed to disclose in writing the fact that she received R500 gift vouchers.
[4] The parties concluded a pre-arbitration minute dated 9 October 2013 and it dealt with the following issues.
[5] The applicant was employed on 1 August 2012 and as at date of dismissal on 23 July 2013 she was a supervisor: accounts payable in the respondent's Rustenburg operations. She was earning a monthly salary of R31,904.
[6] The applicant challenged both the procedural and the substantive fairness of the dismissal, specifically the fact that the hearing was procedurally flawed because the chairperson formulated a charge in the hearing and found her guilty and dismissed her, when such a charge was not part of the charge-sheet she received and prepared for. The applicant also challenged the reason for the dismissal.
[7] On 4 July 2013 the applicant was charged with contravening code 13, which stated that there was no compliance with the code of ethics procedure, in that she disclosed confidential information relating to the salary of a contractor employee.
[8] She was also charged with contravening code 15 (gross dishonesty) in that she was not honest, eg did not report irregularities, etc; lacked integrity, eg her behaviour in front of a supplier and others; and not being trustworthy, eg disclosing confidential information, contradicting herself.
[9] The applicant was found not guilty on all the counts above. She was found guilty of code 13 and dismissed for her non-disclosure of receipt of an amount of R500 from a supplier/service provider. The parties agreed as per para 3.8 of the pre-arbitration minute that the applicant was not charged for non-disclosure of a gift voucher to the amount of R500.
[10] The further details of the pre-arbitration minute were read into the record and it also formed part of the arbitration record.
[11] I am required to decide whether or not the applicant's dismissal was procedurally and substantively fair.
[12] The applicant sought retrospective reinstatement.
Survey of evidence and argument
Respondent's version
[13] Linda van der Merwe testified under oath that she has been the accounts payable manager for the respondent since October 2012. The applicant was suspended when certain investigations were conducted. After the applicant lodged a grievance, things did not go well between them. She could not trust the applicant anymore. Asked about the issue of the R500 voucher, she stated that, at the start of the hearing, the applicant and her representative were under the impression that the charges related to the polygraph test as they insisted on copies of the test. She then clarified to them that the charges were not about the polygraph test.
[14] The video for the polygraph was watched and only then did the issue of the R500 voucher come out. At some stage she called the applicant to her office to inform her that she was supposed to be the complainant in a case which involved her junior. The chairperson of the hearing of a junior staff member to the applicant came to her the day before the hearing to inform her that he had a difficulty in handling the matter because the applicant was acting more as a witness of the accused employee than a complainant.
[15] The applicant remained as the complainant in that matter to the end but was not prepared for the hearing. In terms of the respondent's policy on receipt of gifts, any such receipt was prohibited but the code of ethics required that non-monetary gifts were to be reported to senior management. She stated that staff were supposed to be aware of the code of ethics, especially if they worked in a finance section. It was not clear when exactly the applicant received the voucher.
[16] The applicant had never approached her to disclose any gift she may have received. She stated that code 13 offences attracted either a final written warning or dismissal for first time offenders. In accordance with the code of ethics, an employee would be summarily dismissed if found guilty of contravening the code of ethics. The position required an employee of high integrity as it dealt with huge sums of money. She read out from the ethics policy and wherein it stated that an employee in breach may be dismissed. She stated that the employees, including the applicant, made a petition after the applicant was suspended.
[17] She attended the entire disciplinary hearing of the applicant and thechairperson granted the applicant an opportunity to state her case. She was not aware if a declaration of a gift could be done verbally. The fact that it was supposed to be recorded in a gift register meant that it was to be in writing. She was also referred to the polygraph test consent form, which stated amongst others that the applicant would not be subjected to a disciplinary process because of the outcome of the polygraph test. She disputed that the applicant was not aware of the ethics policy. She was aware that the chairperson of the hearing dismissed the applicant for the R500 gift voucher, although she was not charged for that.
[18] Under cross-examination she agreed that the applicant was dismissed for the R500 voucher and also for not disclosing irregularities timeously. Answering a question about why the charge was amended in the hearing by way of addition, she stated that only the chairperson could answer that. She did not know if the chairperson could change charges in the hearing or not, but emphasized that she did not change them. As the complainant she complained of the offences as they appeared on the notice.
[19] She asked the applicant to be the complainant in Eshla's case because she was in a higher rank. The applicant initially agreed but a while later she was no longer comfortable to be the complainant. When she called the applicant, she was responding to a forensic report recommendation to institute disciplinary proceedings against Eshla. She stated that there was an email from the chief executive officer in relation to the forensic report, and that it did not give any instruction to make the applicant the complainant.
[20] As regards the ethics code, she stated that the applicant's letter of appointment clearly stated that the applicant had a duty to familiarize herself with the ethics code. She also stated that the applicant signed the ethics code after she returned to work. She caused the staff reporting to her to sign the ethics code on an annual basis. She agreed that the applicant did indicate in the polygraph test that she had received an R500 gift voucher. She agreed that the chairperson changed her original charges without first consulting with her as complainant. She still believed that the chairperson of the hearing was independent. She stated that one Collin did suggest that the applicant move to another section when she requested to be moved because there were differences between the two of them.
[21] Under re-examination she stated that Collin only offered the move for the applicant because she had asked for that. When she returned from leave, she realized that the applicant was no longer interested in moving to another section. She did not know if the applicant would still be dismissed in the absence of her voluntary disclosure of the R500 gift voucher.
[22] Ntokozo Dlamini testified under oath that he was the respondent's finance manager. He had been in the respondent's employ for four years. His role in respect of the applicant's disciplinary hearing was that of a presiding officer. He read out the applicant's charges from the submitted bundle of documents. He stated that the function of an account payroll section included ensuring that its employees, of whom the applicant was a supervisor, acted with a high level of trust. He stated that a manager was entrusted by the respondent to take charge of a bank card having a balance of approximately R5 billion.
[23] During the period in which there were certain suspicions regarding the use of the said bank card, there were both interviews and polygraph tests. For the purpose of the hearing he chaired, the polygraph results were not relevant. However the applicant was also interviewed and the latter was videographed. She stated in the interview that she was not comfortable with early settlement discounts. She also stated in the interview that she had previously received a gift from a supplier, which gift was not recorded in the gift register. He stated that there was also an investigation into fraud allegations. The applicant was suspended during the said investigation.
[24] The applicant's suspension was lifted and when she returned she was approached by the respondent who requested her to be a complainant in a matter which she raised herself about the early settlement discount. The applicant, whilst acting as a complainant in an employee's disciplinary hearing, appeared to be the employee's witness. In his view the applicant displayed a level of untrustworthiness by not adhering to an instruction which to him was both lawful and reasonable. It also appeared to him that the applicant was aggrieved by her suspension. When she returned to work she went to the extent of discussing salaries of other employees with her colleagues.
[25] He stated that the applicant's conduct demoralized staff members and also affected staff performance. He took the decision to dismiss the applicant in order to reshape a sinking ship. The applicant was found guilty. He stated that the applicant displayed untrustworthy behaviour by not disclosing the gift she received and also for destabilizing the section she managed. He then decided that the applicant's conduct destroyed the trust relationship between her and the respondent. He dismissed the applicant on the grounds of code 13. He did not find anything from the charge-sheet supporting his finding on the guilt of the applicant on code 13 but when interpreting code 13 generally. He also read out from the code of ethics of the respondent.
[26] He read out from the respondent's values document as included in the bundle submitted. It was his testimony that the applicant's conduct was in violation of the respondent's values. He stated that the respondent would not be willing to work with the applicant again given the position she occupied within the respondent's establishment. There was no position in finance that would accommodate a person who violated the values of the respondent.
[27] Under cross-examination he stated that he was the chairperson of the hearing and he also read out from the respondent's disciplinary process relating to the role of a disciplinary chairperson. He was appointed and dealt with the matter in accordance with the terms of reference as contained in the charge-sheet. He read out the applicant's charges as they appeared in the charge-sheet. It was put to him that his finding was a total deviation from the stated charges and that he replaced the charges with his own. He however stated that the statement was a matter of interpretation. He dismissed the applicant on code 13, namely that she failed to disclose a gift by not recording it in the register and also by not disclosing irregularities to the respondent.
[28] Although there was no charge of non-disclosure of the R500 gift voucher, he concluded that the issue was covered by code 13 of the respondent. In his view, he was called upon to determine if the applicant was guilty of code 13 regardless of whether the facts were in the charge-sheet. Asked about the code of ethics, he stated that it was in line with the disciplinary code. In his view, he did not deviate from the hearing's terms of reference. He was convinced that in the evaluation of the evidence presented, the applicant violated code 13 of the respondent. It was put to him that he changed the charges because he was frustrated by the allegation that the applicant failed to act as a complainant in another employee's case.
[29] He stated that the applicant's conduct of not wanting to be a complainant in the early settlement discounts aggravated the matter for the purpose of sanction. It was put to him that the matter for which the applicant was called to be complainant was the same matter as that for which she was earlier suspended. He did not know why the applicant's supervisor decided that way.
Applicant's version
[30] Priscilla Gaopalelwe Molefe testified under oath that she was employed by the respondent as an accountant in the accounts payment section. She stated that in June 2012 her supervisor, Hlengiwe Masilela, was dismissed for fraud. Before the dismissal she was suspended. She was appointed to act in her position and after the dismissal one Ms Van der Merwe was appointed to that position. She was approached by Linda and others to undergo a polygraph test together with her other colleagues. She was informed that the purpose of the test was to establish if they were suitable to work in the accounts payable section since they worked with finances. Staff were aggrieved by the differential treatment and they approached Linda van der Merwe for clarity.
[31] She informed them that the union would not assist them in any manner on the issue. She was tested by one Mr Koekemoer who informed her that she would be asked the same question that she responded to before the real polygraph test. After the festive season shutdown, she was suspended from work in January 2013. Around 16-17 March 2013, she was phoned by Priscilla who informed her that she had to report for duty the following day because nothing was found against her in the investigation. On her return to work she went to Linda's office to establish why they were suspended and Linda told them that there was nothing untoward about their suspension because she was also previously suspended.
[32] Linda opened her PC and showed them the investigation report which she read and realized that nothing was found against her. She felt aggrieved and approached her union for assistance to lodge a grievance. She was called to an informal grievance meeting. In the meeting she informed the members present that if they felt aggrieved about the suspension, they would escalate the matter to the CEO and she was informed by Collin that the respondent's senior management conceded that the suspension procedure was flawed. She was not happy about how the respondent's human resources section performed its work. She also requested not to be victimized for lodging the grievance.
[33] She was informed that the grievance was kept in abeyance and would be escalated. Later Collin approached and proposed that she accept a transfer to the human resources benefits section. She declined it and then later Ashley Roberts offered her a junior C3 position, which she also declined. Collin again returned to her to ask her to approach Johanna Tau and find out if she did not have a position for her, which she did not see the need to do. She was approached by Linda van der Merwe who asked her to be a complainant in Eshla's case. Linda informed her that the CEO issued the instruction.
[34] As she was not happy to be a complainant against a person who was suspended with her, she reported the matter to the union. The union advised her to accept the request, yet inform the chairperson about the true facts of what happened. Eshla was found guilty and issued with a final written warning. She was approached by Ashley Roberts of the respondent's human resources section, who asked her to accept one of two options. The two options were to either be suspended or resign immediately from the respondent. Ashley said if she did not accept any of the options she would be charged and dismissed. She was suspended, charged and dismissed. In her second suspension, it was written that the alleged transgression related to the same issues which she was suspended for in the first suspension.
[35] She was taken aback as she was made to believe that the investigation had exonerated her. In the pre-polygraph interview, she informed the interviewer that she was concerned about the early settlement discount and that she wanted a way of dealing with the issue in the future. She also mentioned to the interviewer that a service provider, Awethu, brought two R500 vouchers to her. She informed the interviewer that she took one for herself and gave one to her supervisor and then informed him further that she had not recorded same in the gift register.
[36] She disclosed that element because the interviewer told her to say anything that she was concerned about and she was not informed that it would be used against her in the future. She was not informed about what the time frame for reporting irregularities was. She also stated that the gift voucher she received and disclosed in the polygraph test was brought in 2010. In her view, she was dismissed for the Eshla Rosty case in which the respondent averred that she did not want to act as a complainant. She was the one who mentioned the issue of the voucher at the polygraph test.
[37] Under cross-examination she stated that the motive for her dismissal was her role in the Eshla Rosty matter. She was suspended together with Eshla in 2012 and never participated in her investigation. She expected Linda van der Merwe, who was involved in the investigation of Eshla, to be the complainant. She not know what Eshla was charged for at the time when she was requested to act as the complainant. The issue of how things happened in the accounts payable section on early settlement discount was raised by her in the pre-interview polygraph. After she discovered the miscalculation on the Afplats account, she referred the matter to her supervisor, Ms Tau.
[38] She stated that by not charging Eshla she was exercising her discretion as a manager of her section. After Eshla asked for a R50,000 discount, she made calculations which showed her that the discount was supposed to be R120,000. The error was corrected and the anomaly remedied. All capital accounts were under Hlengiwe Masilela and Eshla was in charge of them. She further agreed that she acted in the position of Hlengiwe Masilela after the latter's dismissal. It was also her testimony that she heard that her supervisor, Hlengiwe, was dismissed for fraud. Hlengiwe was the same person she gave the second R500 voucher to. She stated that many other employees had previously received the vouchers, yet were never disciplined when not recording same in the gift register.
[39] The reason she gave the second voucher to her supervisor was based on Hlengiwe's verbal advice that she could only keep one R500 voucher and not both. Hlengiwe did not show her any policy regulating her advice to her. The witness did not regard herself as a naive individual. After Hlengiwe gave her the advice, she did not enquire further about the validity of her claim as she had no reason not to believe her supervisor. She was not charged for the gift voucher, yet she was made to answer questions on an irrelevant issue. Asked generally if it was reasonably expected of an accountant to be aware of what would be ethical and unethical, she stated that it was correct and further stated that she had unashamedly mentioned the R500 voucher issue in the polygraph test.
[40] She refuted that she had not disclosed the R500 voucher to management and said she went to her supervisor to disclose it, although it was not recorded in the register. It was her version that the failure to record was not intended to conceal, as disclosure was made. She stated that the policy required her to report to her senior manager and not record same in the register. She received the gift voucher in 2010. When she was suspended for the first time, she had already disclosed the R500 voucher to the polygraph examiner, yet she was not charged at that time. Instead her suspension was lifted as she was informed that her suspension had nothing to do with the polygraph test
[41] Under re-examination she stated that she was reluctant to be a complainant in the Eshla disciplinary hearing because she was suspended with the latter and further that she was never involved in Eshla's misconduct investigation. She stated that at the time of mentioning the voucher to her supervisor and the pre-interview polygraph test, she had not been made aware of the gift receipt policy.
[42] Luckyboy Lehlogonolo Murubisi testified under oath that he knew the applicant as a co-member of his union and that he represented her at the disciplinary hearing. He remembered that the employee was charged for contravention of code 13 and 15 of the respondent's disciplinary code. He stated that whilst he only prepared the case on the charges preferred as they appeared in the charge-sheet, there were other charges which came up during the hearing. She was suddenly accused of things she mentioned in the polygraph test. He objected to the surfacing of new charges, but was informed by the chairperson that his objection was irrelevant. He then requested the chairperson to record his objection. He remembered that the new issues that were raised in the hearing included the R500 voucher which only came up when they were watching a video clip of the test. After the applicant was dismissed on the polygraph matter, he assisted her to refer the matter to the commission.
[43] Under cross-examination he stated that the chairperson of the disciplinary hearing wrote down the reasons for the dismissal but to his surprise they were not in line with what the applicant was called upon to answer when invited to the hearing. It was put to him that the charges that were imported were part of the evidence presented in the hearing. The witness's response to that was that he did not agree with the proposition. He testified that the applicant was the one who disclosed the R500 voucher and gave one to the supervisor. He did not know the reasons for the dismissal of the applicant's supervisor.
[44] Under re-examination he stated that the reason he opted out of the appeal process was that the respondent had clearly disregarded the applicant's side of the story. He did not know why the chairperson imported new charges into the hearing when making his finding.
[45] Patience Caroline Mejelo testified under oath that she had been employed since December 2010 by the respondent in the trade account section. She knew the applicant as a colleague and they were both at the same level. In January 2013 she returned from leave and was suspended after an interview with a forensic auditor. She also heard that the applicant was suspended but she did not know the reason. She was, however, made to understand that the applicant was dismissed for non-disclosure of R500 voucher she received from a vendor. The witness was also dismissed by the respondent. Apparently the applicant was suspended earlier and then reinstated, but again suspended for a second time.
[46] She stated that the applicant was suspended earlier with other employees. Only Eshla was charged after the first suspension and the latter was then issued with a final written warning. She also heard that the applicant was the complainant in Eshla's hearing. She then heard that the applicant was suspended again, charged and dismissed. She saw the applicant's charge-sheet and cannot remember seeing any charge relating to a R500 voucher.
[47] Under cross-examination she confirmed her testimony with regard to the reason for the applicant's dismissal. She confirmed that the applicant became the acting manager after Hlengiwe's dismissal. She was also aware that the issue of the R500 voucher was communicated to Linda van der Merwe after she was appointed to Hlengiwe's position. The issue was also mentioned in the applicant's polygraph testing. The fact that the applicant omitted to mention in the arbitration hearing that she also informed Linda about it did not mean that she and the applicant were contradicting each other.
[48] She only became aware of the respondent's ethics policy when she was charged. She only realized after she was charged that she should have been made aware of the ethics policy. She may have acknowledged the respondent's policies when signing her employment contract, but she was not given the said policy by the human resources section. She went to human resources after she left the engagement centre. The human resources section referred her to her supervisor, who told her that such documents did not exist. It was in December 2012 when she enquired about the said policies and then immediately thereafter the auditors came. She stated that it would be unethical to receive a voucher and not disclose it if one was aware of the ethics policy. She agreed that not being aware of the existence of the policy did not mean that it was not in existence.
[49] Under re-examination she stated that Linda was informed of the R500 voucher in a meeting between herself, Linda and the applicant. In that meeting she raised issues relating to lack of knowledge on payment processes. She had planned to arrange training workshops on the issue.
Analysis of evidence and argument
[50] Both parties submitted written heads of arguments which I perused and considered without rewriting them.
[51] Section 192(1) of the Labour Relations Act 66 of 1995 as amended provides that: 'In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.'
[52] In this case the dismissal was not in dispute.
[53] Section 192(2) of the said Act provides that, 'if the existence of the dismissal is established, the employer must prove that the dismissal was fair' (emphasis added).
[54] The word 'must' emphasizes the burden of proof in this instance. The respondent bears the onus to prove that the reason for dismissing the applicant as alleged was valid and fair and that such dismissal was effected in terms of a fair procedure.
Procedural fairness
[55] Section 188(1)(b) of the Labour Relations Act 66 of 1995 as amended provides that:
'A dismissal that is not automatically unfair, is unfair if the employer fails to prove . . .[56] The applicant challenged the procedure and I find the dismissal procedurally unfair. This is mainly based on the fact that the applicant was issued with a notice to attend the hearing, which specifically informed her of the full particulars of the charges she was called upon to answer in the hearing. According to the notice to attend the disciplinary hearing, the applicant had the right to be afforded at least three days to prepare for her charges.
(b) dismissal was effected in terms of a fair procedure.'
[57] The chairperson of the disciplinary hearing ticked in the affirmative under item 2 of the hearing procedure checklist, which contained a clause that he conducted the enquiry in accordance with the company's disciplinary code and procedure. However, the chairperson agreed during the arbitration that he found the applicant not guilty on the charges she was presented with and for which she had prepared a defence. He agreed that he dismissed the applicant for imported charges which were brought to his attention through extrinsic evidence which was not brought in support of the charges the applicant was charged for. The chairperson read the charges to the applicant and asked her if she understood the charges, yet in his conclusion he deviated from the very charges which formed the gist of his enquiry.
[58] The chairperson of the disciplinary hearing clearly overstepped his mandate by failing to make a determination on the material that was brought by the respondent before him and conveniently looked elsewhere to find wrongdoing on the part of the applicant. It cannot be correct that the applicant was afforded an opportunity to prepare for the imported charges in accordance with the respondent's disciplinary procedures. One can safely conclude that the chairperson displayed a high level of bias against the applicant by relying on irrelevant considerations in dismissing the applicant. The chairperson clearly did not comprehend the respondent's complaint and case against the applicant and instead substituted the respondent's complaint with his own. I find the applicant's dismissal procedurally unfair.
Substantive fairness
[59] Section 188(1)(a) of the Labour Relations Act 66 of 1995 as amended provides that:
'A dismissal that is not automatically unfair, is unfair if the employer fails to prove -
- that the reason for the dismissal is a fair reason -
- related to the employee's conduct or capacity; or
- based on the employer's operational requirements.'
[61] The case before me relates to a dismissal based on imported charges as acceded to by the respondent itself. The respondent conceded that the applicant's dismissal was not for the reasons for which she was initially charged, but for reasons which surfaced during the hearing. Whilst it is trite that arbitration is a hearing de novo in which the applicant is afforded an opportunity to respond to the respondent's new allegations, the arbitrator should also be mindful that the onus to prove that a dismissal was for a valid and fair reason rests with the respondent. In this case the applicant was not dismissed for the reasons she was accused of. The applicant was not the complainant in the charges the chairperson considered in dismissing the applicant.
[62] At the date of her dismissal, the respondent did not complain that the applicant's conduct as found by the chairperson resulted in an irretrievable breakdown of the employment relationship. However having considered the fact that the applicant slightly deviated from the respondent's standards of ethics by not registering her R500 gift voucher in the employer's register, yet openly disclosed it to her supervisor and also mentioned it voluntarily during the pre-polygraph test interview, I come to the conclusion that she was not a dishonest employee.
[63] I conclude that the respondent acted hastily in dismissing the applicant for a reason she never thought would affect her livelihood when she honourably disclosed it to the respondent's service provider. The applicant's version that there might be some ulterior motive for her dismissal is more probable than the respondent's far-fetched reasons for her dismissal. The respondent had no valid reason to dismiss the applicant and I do not find any reason why I should not award retrospective reinstatement.
Award
It is hereby ordered that:
[64] The applicant's dismissal was procedurally and substantively unfair.
[65] The respondent, Impala Platinum Ltd, must reinstate the applicant retrospectively to the date of dismissal, namely 23 July 2013, without any loss of remuneration and benefits and she must be allowed to resume her duties by 15 January 2014 or within 48 hours of becoming aware of the award.
[66] The respondent must pay the applicant of R159,520 from 23 July 2013 to the date of the award (17 December 2013), less statutory deductions, by no later than 15 January 2014, failing which the applicable interest rate shall accrue.
[67] No costs order is made.