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2014
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[2014] ZAGPJHC 44
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Mahlake v General Public Service Sectoral Bargaining Council and Others (JR1656/12) [2014] ZAGPJHC 44 (24 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no JR 1656/12
In
the matter between:
P
A MAHLAKE
APPLICANT
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL 1
ST
RESPONDENT
AC
MAANDE 2
ND
RESPONDENT
DEPARTMENT
OF SPORTS, ARTS & CULTURE
LIMPOPO
PROVINCE 3
RD
RESPONDENT
Application
heard: 21 February 2014
Ruling
issued: 24 February 2014
RULING:
APPLICATION OF LEAVE TO APPEAL
VAN
NIEKERK J
[1]
This is an application for leave to appeal against the whole of the
judgment delivered by this court on 17 January 2014. In
its judgment,
the court dismissed, with no order as to costs, an application to
review and set aside an arbitration ward made by
the second
respondent. In his award, the second respondent (the commissioner)
had upheld the fairness of the dismissal of the applicant
by the
third respondent.
[2]
The reasons for judgment are recorded in the written judgment
delivered by the court, and I do not intend to repeat them
here. At the hearing of the present application, Adv. Cook, who
appeared for the applicant, emphasized four submissions. These
relate
to the severity of the sanction of dismissal, the consistency
argument (it having been contended that at least two other
employees
were guilty of the same misconduct but not dismissed), the related
contention that the applicant was the scapegoat for
misconduct
committed by others and they submission concerning the applicant’s
understanding of an exemption in relation to
certain payments and the
requirement that an approval and/or tender process be invoked.
[3]
Leave to appeal is ordinarily granted if there are reasonable
prospects that another court, in this case the Labour Appeal Court,
may come to a different conclusion.
[4]
in relation to sanction, it is pointed out in the judgment that the
consequence of the approach adopted in the
Sidumo
judgment and
its subsequent refinement by the Supreme Court of Appeal in
Herholdt
and by the Labour Appeal Court in
Goldfields
is to narrow
considerably the basis on which this court is entitled to interfere
with a commissioner’s finding on a fair sanction
for
misconduct. The effect of the test, which requires a commissioner’s
decision that dismissal is appropriate to be so unreasonable
that it
falls outside of the band of decisions to which reasonable people
could come on the available material, is that this court
will not
often be entitled to interfere. In the present instance, the
commissioner in paragraph 50 of the award clearly takes into
account
the relevant factors and concludes that the absence of any remorse
and the fact that the applicant, despite the evidence,
simply
continue to believe that she had done no wrong warranted the
upholding of the applicant’s dismissal. As I indicated
in the
judgment, there is no reason to call into question the commissioner’s
conclusion that the acts of financial mismanagement
committed by the
applicant warranted the sanction of dismissal. Nothing that has been
presented in the present application persuades
me that another court
might reasonably think differently.
[5]
Similarly, in regard to the consistency and scapegoat arguments, the
commissioner was alive to the applicant’s averments
that other
employees were equally guilty of financial mismanagement. The
commissioner rejected these arguments as a basis on which
the
applicant should be exculpatory it and relying on the evidence of
Knevitt in particular, concluded that whatever the conduct
of others,
the applicant was responsible for the budget being exceeded by some R
2.7 million. The fact that one either employee
implicated by the
forensic reported resigned and another been transferred could not
serve to exculpate the applicant, and other
commissioner quite
reasonably rejected this proposition.
[6]
The applicant also submits in the present application that her state
of mind and in particular, her belief that the exemption
obtained in
respect of services for goods exceeding R 30 000 was sufficient to
relieve her of any obligations in respect of the
regulatory
thresholds of R 100 000 and R1 million respectively, is an issue that
the commissioner failed properly to take into
account, as the
commissioner failed properly to have regard to her contention that
she was the victim of a political conspiracy.
Again, it is the
function of this court to determine whether or not the commissioner
was correct. Commissioners are allowed to
be wrong. As I’ve
indicated in the judgment, provided the commissioner provides the
parties a fair hearing, understands the
nature of the dispute and
deals with the substantive merits of that dispute, there is no basis
for this court to intervene. Having
read the applicants are submits
in the present application persuades me that another court might
reasonably conclude that the commissioner
failed to discharge the
above obligation.
For
these reasons I make the following order:
1.
Leave to appeal is refused.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicant: Adv A Cook, instructed by Koikanyang Inc
For
the third respondent: Adv N Cassim SC, instructed by the sate
attorney.