SAMWU v South African Local Government Bargaining Council and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Prinsloo J |
| Judgment Date | 13 March 2023 |
| Citation | 2023 JDR 2616 (LC) |
| Hearing Date | 22 February 2023 |
| Docket Number | JR 1211/2018 |
| Court | Labour Court |
Prinsloo J:
Introduction
The Applicant seeks to review and set aside an arbitration award dated 3 May 2018 and issued under case number MPD 051705, wherein the Second Respondent (arbitrator) found that Mr Malatsi’s dismissal was substantively and procedurally fair and his case was dismissed.
The Third Respondent (Respondent or Municipality) opposed the application for review.
The facts
The Respondent employed Mr Malatsi in 2009 as an intern and he was permanently employed in September 2010 as an accountant: creditors.
In early 2012, ABSA Bank alerted the Respondent that there were possible fraudulent activities going on within the Municipality and the services of Price Waterhouse Cooper (PWC) were procured to conduct a forensic investigation into the allegations. At that point, Mr Malatsi was working as an accountant in the Respondent’s finance department and he was allocated a computer, with his own password, but he did not have authority to access the cash focus account via the internet.
The computers of the employees working in the finance department were checked as part of the investigation. The investigations revealed irregularities, the nett effect of which was to expose the Municipality to a potential loss of R 9,7 million. PWC found that during the period 31 January to 23 February 2012, several attempts were made from Mr Malatsi’s computer to access the cash focus internet portal to the Respondent’s Absa bank account (bank account).
On 14 February 2013, Mr Malatsi was charged with misconduct after it was found that his computer was used in an attempt to access the Municipality’s
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bank account. The charge levelled against Mr Malatsi was that he had failed to conduct himself with honesty and integrity in that he attempted to access the Respondent’s account on 11 occasions on eight different dates between 31 January and 23 February 2012, and the alternative charge was fraud. Mr Malatsi was found guilty of misconduct and dismissed on 3 May 2013.
The Applicant subsequently referred an unfair dismissal dispute to the First Respondent (SALGBC). The dispute was arbitrated and during the arbitration proceedings, Mr Malatsi explained that he was given a computer by the Respondent, which was specifically assigned to him and for which he had created his own password. Mr Malatsi’s case was that since he joined the Respondent, he was introduced to a culture of teamwork and as such, his colleagues could use his computer as much as he could use their computers, with the password. He even allowed the auditors to use his computer and his password was written on the calendar which was on the computer desk, to be used by his colleagues. He explained that about ten of his colleagues knew his password.
The evidence was that it was a normal practice to share computers and passwords, which were written on the calendars on the computer desks.
In an arbitration award issued on 1 August 2013 under case number MPD051308 (the first arbitration award), the presiding arbitrator, Mr Ntimbana, analysed the evidence in respect of the charge of misconduct, which Mr Malatsi was dismissed for. Mr Ntimbana found that there was no reason to reject the Respondent’s argument that Mr Malatsi’s computer was used to attempt to access the cash focus account and he accepted that Mr Malatsi’s computer was solely allocated to him and that he had created his own password. It was found disturbing that Mr Malatsi’s version was that he was introduced to a culture of working as a team, to an extent of sharing the password of his computer. The whole object of having or creating a password is to safeguard and block others from using the computer in the absence of Mr Malatsi and without his knowledge. Mr Ntimbana remarked that if more than ten others knew Mr Malatsi’s password, which was written on his desk, he had
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allowed such easy access at his own peril and he cannot shift any responsibility in the event the computer is used by someone else.
Mr Ntimbana found that Mr Malatsi’s sharing of his password was very irresponsible, but it would be harsh to dismiss him in circumstances where there was no evidence to conclude that it was indeed Mr Malatsi who attempted to access the bank account. Ultimately Mr Malatsi’s dismissal was found unfair and the sanction of dismissal was found to be harsh and inappropriate. The presiding arbitrator found that because Mr Malatsi’s “hands are also not clean, he cannot be reinstated with arrear wages as per his request and the period from his dismissal up to his reinstatement must be treated as a period of unpaid suspension”.
In short, Mr Ntimbana found that Mr Malatsi’s dismissal was unfair because it was not possible to conclude that it was he who had attempted to access the Respondent’s bank account as he was not the only employee who had access to his computer, due to the common practice of sharing passwords and because his password was written on his desk calendar.
The Respondent sought to review the arbitration award, but the application was unsuccessful and Mr Malatsi was reinstated on 17 October 2016.
After his reinstatement and on 3 November 2016, the Respondent issued a notice to attend a disciplinary hearing to Mr Malatsi. Two charges of misconduct were levelled against him – the first charge was gross dishonesty in that Mr Malatsi acted dishonestly with the intention to deceive the Municipality by sharing his own computer-created password with other employees, during the period February 2012, whereby his computer was used for fraudulent activities. The second charge was for failure to comply with the Respondent’s IT policy by sharing his computer’s password with other employees, which resulted in his computer being used to do fraudulent activities.
Mr Malatsi was found guilty and dismissed and another unfair dismissal dispute was referred to the SALGBC. An arbitration award was issued on 3 May 2018, under case number MPD051705 (the second arbitration award)
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and Mr Malatsi’s dismissal was found to be fair. The said arbitration award is the subject of this review application.
Analysis of the arbitrator’s findings and the grounds for review
The test on review
I have to deal with the grounds for review within the context of the test that this Court must apply in deciding whether the arbitrator’s decision is reviewable. The test has been set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others [1] (Sidumo) as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator’s conclusion must fall within a range of decisions that a reasonable decision maker could make.
The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others [2] affirmed the test to be applied in review proceedings and held that:
‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’
The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and determine whether a failure by the arbitrator to deal with it is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing Court must consider the totality of the evidence and decide whether the decision made by the arbitrator is one that a reasonable decision maker could make, based on the evidence adduced. [3]
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The review test to be applied is a stringent and conservative test of reasonableness. The Applicant must show that the arbitrator ultimately arrived at an unreasonable result.
It is within the context of this test that this application for review is to be decided.
The second arbitration award: the arbitrator’s findings
The issue to be decided by the arbitrator was whether Mr Malatsi’s dismissal was substantively fair and whether charging him twice constituted double jeopardy.
The arbitrator recorded the factual matrix of the matter as that Mr Malatsi was dismissed for gross misconduct in that he contravened the IT policy by sharing his password. Mr Malatsi testified that he was introduced to a culture of sharing passwords, whilst there is an IT policy in place, which prohibits the sharing of passwords. His version was that he was unaware of the existence of the IT policy, notwithstanding the fact that he attended an induction on the Respondent’s policies, a version the arbitrator found improbable and which was rejected.
The arbitrator found that Mr Malatsi confirmed that he shared his password, whereby he effectively admitted that he had contravened the IT policy, which specifically prohibited the sharing of passwords. The arbitrator held that with or without a policy, Mr Malatsi, as an educated person with qualifications and experience and considering the position he held at the Municipality, should have known that the sharing of a password has a propensity of exposing the Respondent to financial risk and that he cannot hide behind the fact that it was a practice. The arbitrator further found it hard to accept that Mr Malatsi saw nothing wrong in sharing passwords. The arbitrator relied on authorities which confirmed that a sanction is aimed at correction and rehabilitation, but will be of no purpose when an employee refuses to acknowledge the wrongfulness of his or her conduct. In casu, Mr Malatsi insisted that it was a practice to share...
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