SUMMARY – Background to Review
This is an opposed review application of an award in which the arbitrator found that the third respondent, Mr I Juries (‘Juries’), was dismissed by the applicant (‘Unitrans’) unfairly because he did not deliberately falsify payroll information which caused a shop steward, Mr G Coetzee (‘Coetzee’), to receive additional remuneration that he was not entitled to. The arbitrator found at worst that Juries was negligent and that Unitrans should have treated the matter as a case of poor performance rather than misconduct involving dishonesty. He also found that the reinstatement of Juries was an appropriate remedy.
Unitrans essentially raised five grounds of review:
- The arbitrator committed a material misdirection in deciding that Juries’ conduct, did not warrant dismissal, because Unitrans had considered and offered Juries demotion from his position as a contract supervisor, as an alternative to dismissal. Unitrans claimed that the arbitrator failed to appreciate that the proposed demotion was only acceptable as an alternative because Juries would not have been engaged in a position which entailed the same degree of trust or responsibility as a contract supervisor.
- Unitrans contends that the arbitrator misdirected himself in deciding that it should have subjected Juries to further training in circumstances where he had never raised a lack of proper training for personal incapacity. Further, Juries had not acknowledged or admitted making errors but claimed that the Coetzee was entitled to the payments. The evidence showed that Juries was fully familiar with the biometric clocking system, that it was supposed to be used, but that he placed little reliance on it. This was not evidence of lack of training or expertise, but an unwillingness to use the system.
- The arbitrator had concluded that because the overpayments were only discovered after investigating whether the recipient of the payments was engaged in conducting a private business, it could not be inferred that overpayments were a result of intentional misrepresentation on the part of the employee, because if the investigation had been wider it might have revealed that other misrepresentations about hours worked by other employees had been made, which would indicate that it was not intentional.
- Unitrans contends that since Juries knew that Coetzee was leaving work early, it is inconceivable that he believed he was entitled to be paid for those hours. Further, Juries had contended that he had only relied on trip/time sheets to calculate the hours owed to Coetzee without considering biometric clocking records as he was required to, yet there were instances where Coetzee received payment even when those limited records showed he was not at in these circumstances, had the arbitrator taken this into account, he could not have reasonably concluded that Juries’ conduct was not intentional.
- Coetzee appears not have been charged with misconduct relating to the improper payment he received and the arbitrator concluded that this meant either that no overpayment occurred or that Unitrans did not regard it as sufficiently serious to warrant action being taken against him. Unitrans contends that it was improper of the arbitrator to have regard to this when it was not something that Juries made an issue of in the arbitration and the arbitrator did not even address him on this issue.
The court held that, in relation to the first ground of review, the court agrees with the applicant that, taken to its logical conclusion, it would mean that no employer who offered an employee demotion as an alternative to dismissal would be allowed to defend the subsequent dismissal if the employee refused that alternative. The arbitrator’s logic is fundamentally flawed in seeing the offer of demotion as necessarily meaning that Juries’ dismissal from his post as contract supervisor was not justified.
As to whether the arbitrator misdirected himself in deciding that Juries conduct should have been handled as a performance matter, there are two fundamental problems with the approach. The first is that, an arbitrator deciding the fairness of a dismissal must assess the fairness thereof in relation to the reasons given by the employer. If the employer cannot justify the dismissal on that basis, it will fail. Secondly, it is improper of an arbitrator to make findings on this basis when the employee themselves had not raised it. Accordingly, the award must be sustainable once all the arbitrator’s inferences and findings based on this misdirection have been removed from consideration. In this instance, the main effect seems to have been that, it led the arbitrator to take his ‘eye off the ball’ so to speak, and to focus on a defence for Juries of his own making, instead of dispassionately assessing the probabilities whether Juries’ conduct most probably reflected negligence rather than wilful misrepresentation of Coetzee’s hours worked.
The court agreed with Unitrans that the arbitrator’s reasoning in concluding that there might have been other ‘errors’ made in respect of hours credited to other staff by Juries, which simply weren’t discovered because they were not investigated, is highly speculative and irrelevant. It also raises a concern that if Juries intended to raise a defence of incompetence or lack of training, then it was for him to raise examples of other ‘errors’ he claimed to have made and not for the arbitrator to speculate about the outcome of a potential defence that was never even advanced at the arbitration.
There simply was insufficient evidence for the arbitrator to reach the conclusion that the overpayments were merely a result of negligence on Juries’ part, when there was significant evidence that cried out for a coherent explanation from Juries as to how it could simply have been an error rather than deliberate. Thus, while the arbitrator was willing to speculate about errors that might have been made, the arbitrator did not consider evidence of ‘errors’ made in Coetzee’s favour, for which no explanation was provided.
In conclusion, the review should succeed on the basis of the first, second and fourth grounds of review. I am also persuaded that the grounds identified showed that the arbitrator adopted lines of reasoning which, at the very least, distracted him from the issues he had to determine and at worst led him to reach conclusions which could not be justified on the evidence.
The Court held that the arbitration award issued by the Second Respondent is reviewed and set aside. The Second Respondent’s effective finding that the Third Respondent was not guilty of misconduct was replaced with a finding that he was guilty of that misconduct and dismissal was an appropriate sanction in the circumstances. No order was made as to costs.
The case distinguishes between negligence or improper training and misconduct. The case also emphasises that an Arbitrator cannot provide judgment on something that is not argued (in this case by the defence).
Written by Dewald Claassen and supervised by Charlotte Clarke, 22 August 2018