This matter concerns a review application brought about by Moeti John Lesedi (the “Applicant”) who is reviewing an arbitration order made by the Commission for Conciliation, Mediation and Arbitration (the “CCMA”), who is the First Respondent in the matter and Commissioner Timothy Boyce (the “Second Respondent”). The Applicant’s review application concerns Dischem Pharmacies (the “Third Respondent”) on the grounds of Unfair Dismissal, particularly on basis of improper motive on the part of the Third Respondent.
The arbitrator before this matter, considered the issue of the substantive fairness of the Applicant’s dismissal on two counts, namely:
- for gross dishonesty in misleading the Third Respondents management in an interview regarding the Applicant’s qualifications in pharmaceuticals; and
- gross negligence in erroneously completing and producing a prescription.
The First Count
The arbitrator considered the Third Respondent’s evidence and found that the acceptance of the Applicant’s qualifications certificate (reflecting that the Applicant was a pharmacist’s assistant in the public sector) was legitimate and not misleading.
The Second Count
The Applicant’s incorrect entries in respect of various prescriptions on numerous occasions (one of which may have led to the patient experiencing blackouts) was considered. In this respect, there was testimony that the Applicant’s failure to capture scripts at the call centre, in which he previously worked, was the reason for moving the Applicant from the call centre to over the counter work (“OTC”).
The Applicant claimed no knowledge of the reason for his removal from the call centre and placement to OTC despite the existence of the Applicant’s testimony in this regard. The Applicant’s argument was that the employer had fabricated this allegation as a reason to terminate the Applicant. In addition, the Applicant admitted that capturing incorrect information on a patient’s prescription could pose a serious health risk, however, he denied doing such and instead claimed that another pharmacist had checked his work prior to the dispatch of the prescription.
The Applicant’s defence with regards to the prescription errors was that the certified copy of the script was generated by another pharmacist. This meant that the pharmacist would have been in possession of the Applicant’s personal user details and password in order to access the computer system. The arbitrator found this defence to be ill-motivated since the Applicant had no valid explanation as to who would have had the motive to do such. In addition, the Applicant claimed that the employer’s motives were based on the Applicant’s interest in joining a union. The arbitrator warned him on raising such claim as the dismissal would no longer be based on misconduct, but rather automatically unfair dismissal – a matter which the arbitrator would not be able to adjudicate.
In terms of the first charge, the arbitrator found that on the basis of the Third Respondent’s own evidence, the Applicant was not guilty because he had said that he had experience in the public sector and community sector, therefore he did not mislead the Third Respondent. In respect of the second charge, there was no reason proferred by the Applicant for an employee of the Third Respondent to create an incorrect certified copy of the prescription.
The arbitrator addressed the question of appropriate remedy by stating that the misconduct did not warrant dismissal, as the Applicant had only worked for approximately 2 (two) weeks when he was suspended, and no appropriate progression of discipline had been applied by the employer. It was held that reinstatement was not an appropriate remedy as it would be difficult for the employment relationship to be restored. The Applicant was awarded 2 (two) months’ remuneration as compensation owing to the Applicant’s brief length of employment, the fact that the Applicant was still employed, and that the employee failed to show that he had secured alternative employment upon dismissal.
Labour Court – Review
The Applicant claimed that the arbitrator failed to consider that the Third Respondent had an improper motive for bringing the charges against the Applicant, this was based on the Applicant’s belief that Third Respondent’s failure to prove the first charge lead to the Third Respondent seeking to implicate the Applicant in another form of misconduct. However, the Third Respondent’s defence was that the certificate proving his work experience was only brought to their attention after the Applicant was dismissed. In this regard, during dismissal, it was not unreasonable for Third Respondent to believe that the Applicant was not qualified.
The charge pertaining to the incorrect capturing of scripts was not brought about as a result of the failure to prove the first charge, but rather brought concurrently with it. Further, this charge was the Third Respondent’s other reason for the Applicant’s dismissal. Therefore, the Labour Court rejected the Applicant’s argument that it was an attempt to strengthen the Third Respondent’s case. The Applicant argued that the evidence of the Call Centre Dispensary Manager was hearsay and could not be relied on as she did not authorise the first prescription and the Third Respondent failed to call the Dispensary Manager to testify. The issue of the generated prescriptions was argued vigorously, whereby the Applicant contested that the second prescription was not initialled by himself and the pharmacist unlike the other one, hence his argument that the generated invoice was manufactured for purposes of the case.
The Labour Court found the prospects of such and the Applicant’s defence being based on bad faith on the part of the Third Respondent to be wholly improbable. In the absence of evidence regarding the reasons why the Dispensary Manager would fabricate the generated scripts, it cannot be said that the arbitrator’s conclusions were unreasonable/improper. It was concluded that the Applicant’s determination to submit his case to arbitration on the basis that he was not guilty of misconduct, meant that he chose to abandon his alternative claim of automatically unfair dismissal. Subsequently, the alternative claim could have been referred to the Labour Court. In light of the above, the arbitrator’s findings were found to be reasonable without any reviewable irregularities. The Labour Court dismissed the review application with no order as to costs.
Lack of evidence of improper motive for a dismissal may limit an applicant’s successes of a review application in reviews based on the aforesaid.
Written by Katya Oberzhitsky and checked by Jonathan Salant, on 25 September 2018