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[2020] ZALAC 70
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Koko v Greater Tubatse Municipality and Others (JA18/2019) [2020] ZALAC 70; (2021) 42 ILJ 1019 (LAC) (10 December 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JA18/2019
In
the matter between:
NGATHA
ANDRIES
KOKO Appellant
and
GREATER
TUBATSE MUNICIPALITY First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL Second
Respondent
S
K NTSUMELA
N.O Third
Respondent
Heard:
12
November 2020
Delivered:
10
December 2020
Coram:
Davis
JA, Coppin JA and Murphy AJA
JUDGMENT
DAVIS
JA
Introduction
[1] This
case raises at least two important questions for labour law. In the
first place, the dispute concerns
an alleged unfair dismissal in
circumstances where the first respondent claims that the appellant
had not been legally appointed
into the post from which the latter
had thereafter been dismissed. The second important issue concerns
the consequences for the
appellant in circumstances whereby it fails
in the appeal. The arbitration award was reviewed and set aside in
the court a quo
.It is this d which is the subject of this appeal was
delivered on 11 February 2014, subsequent to the third respondent’s
services having been terminated on 30 July 2013. In turn, this raises
the question of the appropriate penalty.
The
factual matrix
[2] It
appears to be common cause that the appellant was employed by the
first respondent on 24 February 2013 as
a legal administrative
officer. The decision to dismiss him was confirmed on 19 August 2013
at an arbitration hearing to determine
the fairness of the dismissal.
[3] It
was also common cause that appellant had applied for the position of
Legal Administrative Officer, although
there was some dispute as to
when appellant had applied for the post. It was agreed that the
closing date for applications was
on 26 October 2012. The Appellant
contended that he had applied for the post on 12 October 2012,
although the representative for
the first respondent at the
arbitration hearing, Mr Motha had conceded that there was a letter of
application generated by appellant
on 12 October 2012.
[4] Ms
Mapheto, the human resources officer of first respondent, testified
that the appellant had not applied for
the position in that his name
did not appear on the original list of applicants. In her view, the
process involved a shortlisting
of all who had applied. All those
shortlisted would be interviewed. The successful candidate would then
receive an appointment
letter.
[5] Ms
Mapheto insisted that only persons on the shortlist could have been
appointed and that ‘if a person
does not appear on the Original
List of Applications then that would mean, that person would not be
shortlisted, therefore they
would not be interviewed which means that
… whoever gets appointed… would have to have applied
and have appeared
on the Original list.’
[6] The
problem with her evidence was that when the original list of
applicants was examined, on the top of the
appellant’s
application (date 6 November 2012) appeared the letter “C”
which meant “captured”. Ms
Mapheto was constrained to
accept that once the “C” appeared that meant that ‘it
was actually confirming that
this application for Mr Koko was
captured.’ There was no evidence provided from the person who
had actually complied the
original list nor was any evidence led
about the dismissal of the appellant.
[7] By
contrast appellant testified that he had submitted his application to
first respondent’ on 12 October
2012 by placing the application
in a box at the reception of first respondent’s premises. He
had then been called to an interview
and told he was the successful
candidate and given an appointment letter.
[8] Regarding
his termination, he testified ‘I was in the office at around 4
o’clock when I was about
to knock-off; when I received a Letter
that my Services of being Terminated with effect from 8 August.’
[9] The
notice of termination of 30 July 2013 read as follows:
‘
Kindly note that
your employment with the municipality will be terminated with effect
from the 8
th
of August 2013, therefore this serves as a
one week’s notice.
Your appointment did not
conform to recruitment process as provided for in the employment
practices policy for:
· According
to the records at our disposal you did not apply for the position
of
Legal Admin Officer as required by the advertisement.
· Your
application was not received within the stipulated period as advised
by the advertisement.
This resulted in your
appointment being made out of irregular recruitment process.
It is against this
background that the municipality views your appointment as null and
void and has decided on good course and in
the interest of the public
to terminate you from its services.’
The
award of third respondent
[10] The
third respondent examined the evidence and found that the first
respondent had failed to dispute the version
put up by the appellant,
namely that he had applied for the position in question and had been
duly appointed. Third respondent
assessed the relevant evidence and
found:
‘
Mapheto admitted
during cross-examination that applicant’s application was
captured by Momoagi Debora (MD) on 6 November 2012.
In the light of
the aforesaid admissions, it could not be true that the application
was received after the closing date. In the
circumstances, I find
that the dismissal of the applicant is substantively unfair for want
of valid reason.’
[11] The
third respondent found further that no disciplinary proceedings had
been instituted but that the appellant
had been summarily dismissed.
For these reasons, the third respondent held that the dismissal was
both substantively and procedurally
unfair and ordered the
reinstatement of the appellant to his previous position as from 7
March 2014. In terms of the award, the
first respondent was ordered
to pay the appellant R 167 200.00 as back pay.
The
court
a quo
[12] First
respondent sought to review and set aside this arbitration award in
terms of s 158 (1)(g)) of the Labour
Relations Act 66 of 1995
(‘LRA’).
[13] In
his judgment Cele J referred to the pre arbitration minute as if
constituting the basis of the factual
dispute. The pre-trial minute
set out facts that were common cause the facts that were in dispute.
The facts that were common cause
were as follows:
· The
applicant’s appointment was made out of an irregular procedure
· The
applicant was employed on 24 of Febuary 2013 as a legal admin officer
by the
respondent until the date of dismissal, which is 19 August
2013. The applicant was dismissed for unknown reasons after serving
in the post of legal admin officer for a period of five months.
· The
applicant was dismissed by the respondent.
· It
is a fact that the applicant applied for a post of legal admin
officer and
went for an interview, scored high and ultimately
appointed.
· The
respondent did not follow a fair procedure when dismissing the
applicant
by denying him the right provided for in the Act to be
given a chance to represent his case.
· The
applicant cannot be held responsible for internal systems of the
municipality.
Any illegal actions referred to by the employer is an
internal matter and the applicant cannot be held liable for such.”
[14] The
facts that were in dispute were set out as follows:
· That
the applicant’s appointment was made out of an irregular
process
· That
the dismissal of the applicant was procedurally and substantively
fair.
·
That the respondent did not comply with clause 6.3 of the
disciplinary procedure, collective
agreement for dismissing the
applicant in July 2013 for an incident that took place in Febuary
2013.
[15] After
noting the full contents of this minute, Cele J found that third
respondent had failed to apply his
mind properly to the evidence that
had been presented to him. The learned judge then engaged with what
unfortunately was no more
than speculation:
‘
There might have
been a number of reasons why the application was not captured. Ms
Deborah might have seen deficiency maybe such
as the later filing of
the application and decided not to include this application into the
list of people from whom a list of
interviews would be drawn.’
[16] Cele
J held, on the basis of the shortlist provided, and thus the absence
of the appellant’s name thereon
that, ‘the interview of
Mr Koko by the applicant (was) irregular. It therefore made the
appointment of Mr Koko irregular
as well’. Given the finding
there had been an irregular appointment, Cele J held that, as a
beneficiary of a wrongful appointment,
there was no basis by which to
find in favour of the appellant and therefore reinstate him into his
position. For these reasons,
the court a quo reviewed and set aside
the arbitration award.
The
appeal
[17] With
leave of this court, the appellant has appealed against both the
findings of procedural and substantive
fairness of the dismissal. At
the hearing before this court, Mr Mosam, who appeared together with
Mr Motsepe on behalf of first
respondent, raised the question of the
unreasonable delay in the appellant’s filing of heads of
argument. The appellant’s
heads were filed on 26 March 2020 and
were therefore 28 weeks out of time. The delay is hardly acceptable.
However, this court
adopted the approach that it wished to hear the
appeal, as the merits of the this appeal determined that it be heard.
The Court
thus granted condonation.
[18] The
difficulty confronting Mr Mosam and hence first respondent was that,
regrettably the court a quo jettisoned
reliance on the pre
arbitration minute; in particular, the facts that were common cause
between the parties. It was common cause
that the appellant had
applied for the post of legal administrative officer, had been
interviewed, had scored highly at the interview
and had then been
appointed.
[19] It
is regrettable that the court a quo engaged in speculation as opposed
to drawing reasonable inference why
the appointment had been made
rather than concentrating on the facts placed before the court,
including those that were common
cause, including the concession that
applicant’s application had been captured with a ”C”,
that he had been interviewed
and scored highly.
[20] Hence,
the basis of Mr Mosam’s defence of the judgment of the court a
quo was confined to a contention
that first respondent was obliged to
comply with s 67 of the Municipal Systems Act 32 of 2000. In his
view, this section regulated
fair, efficient, effective and
transparent personal administration. He contended on the basis of the
available evidence, that the
court a quo could not conclusively have
found that the appellant had applied timeously for the position and,
that the appropriate
procedure in terms of s 67 of the municipal
systems Act had been followed. Hence, the learned judge had been
correct to find that
the appointment was irregular and thus null and
void
ab initio
.
[21] There
are a number of difficulties with these submissions. In the first
place they attempt to elide over a
fact that was accepted, namely,
that the appellant had applied for the post had been interviewed, had
achieved high scores and
thus had been appointed. The failure to
obtain evidence from Ms Mamoagi Deborah meant that the fact that the
appellant’s
application had been marked with a “C”
and had thus been captured could not be gainsaid by first respondent.
[22] S
67 (1) of the Municipal Systems Act provides that a municipality, in
accordance with Employment Equity Act,
must develop and adopt
appropriate systems and procedures to ensure a fair, efficient,
effective and transparent personal administration
including:
(a) the
recruitment selection and appointment of persons as staff members.
S 67 (2) provides for
systems and procedures to be adopted in terms of subsection (1) to
the extent that they deal with matters
failing under applicable
labour legislation and effecting the rights and interest of staff
members (that) must be consistent with
such legislation.’
[23] It
is difficult to understand on what basis it could be contended, on
the strength of the evidence placed
before third respondent and later
before the court
a quo
as to how s 67 (1) of the Municipal
Systems Act could aid first respondent. On its own, this section does
not invalidate the appointment
of the appellant. Thus, absent any
evidence none of which was presented, the inextricable conclusion is
that the appellant had
been appointed to the position and then had
been dismissed without the provision of justifiable reasons and
without a disciplinary
hearing having been conducted.
[24] In
my view, the award which had been made by third respondent stands to
be classified as a reasonable award
on the basis of the evidence
which had been presented at the hearing. As was stated in
Herholdt
v Nedbank Limited
2013 (6) SA 224
(SCA) at para 25:
‘
A result will only
be unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before
the arbitrator.’
[25] This
finding obviates any engagement with appellant’s further
argument that his appointment constituted
administrative action which
remained valid until set aside on review by a competent court. In
this connection, appellant invoked
the doctrine as set out in
Oudekraal Estates (Pty) Ltd v City of Cape Town
2004 (6) 222
(SCA) which doctrine finds further development and affirmation in the
Constitutional Court in
Merafong City Local Municipality v Anglo
Gold Ashanti Limited
2017 (2) SA 211
(CC).
[26] First
respondent countered this submission by arguing that the appointment
of the appellant does not amount
to administrative action. In support
thereof, Mr Mosam relied on the decision in
Chirwa v Transnet
[2008] 2 BLLR 97
(CC) at para 142, in which he found ‘the
subject matter of the power involved here is a termination of a
contract of employment
for poor work performance. The source of the
power is the employment contract between the appellant in Transnet.
The nature of
the power involved here is therefore contractual. It
does not involve the implementation of legislation which constitutes
administrative
action.’
[27] Whether
an invalid decision to appoint a person to a post, such as argued by
first respondent, falls within
the
Chirwa dictum,
is not a
question which requires a decision from this court, notwithstanding
the detailed submissions made in this regard of both
counsel. It is
clearly unnecessary to decide this question in the light of the
finding that the award was a reasonable one which
does not stand to
be set aside.
[28] In
the result, the appeal must succeed in that no evidence was presented
by the first respondent which justified
summary dismissal from the
employment of first respondent.
Relief
[29] The
question of relief raises the second of the two issues of importance
set out in the introduction to this
judgment. Section 193 (2) of the
LRA provides that Labour Court or the Arbitrator must require the
employer to reinstate or re-employ
the employee unless:
(a) the
employee does not wish to be reinstated or reemployed;
(b) the
circumstances surrounding the dismissal are such that a continued
employment relationship would
be intolerable;
(c) it
is not reasonably practical for the employer to reinstate or reemploy
the employee; or
(d) the
dismissal is unfair only because the employee did not follow a fair
procedure.
[30] This
section does not provide powers to this court once the arbitrator or
the Labour Court has acted in terms
of S 193(2) of the LRA. The
consequent problem can be posed thus: What occurs in a case such as
the present one where reinstatement
has been correctly ordered in
that the dismissal has been found to substantively and procedurally
unfair? The consequence of this
court having no discretion to alter
this remedy is that an impecunious municipality is required to pay
remuneration for more than
six years notwithstanding that he was
employed for but a few months. This is an untenable situation as is
the broader question
about having to decide on appeal regarding
events which occurred in 2013 and are now subject to an appeal before
this Court some
seven year later.
[31] This
case, which is not an outlier makes a mockery one of the objectives
of LRA being the expeditious resolution
of labour disputes. The
legislature must reconsider not only the narrow question of providing
this court with a more expansive
set of discretionary powers so as to
prevent what is otherwise an excessive amount of money which is to be
paid by the successful
appellant, a case such as the present.
Secondly, there is an urgent need to investigate the causes of the
extraordinary length
of time that it is now taking to dispose of all
too many labour disputes. The legislature should consider this
problem and develop
legislative amendments accordingly.
[32] In
the result therefore the following order is made:
1. The
appeal succeeds with costs.
2. The
order of the court a quo is to be set aside and replaced with the
following:
“
The application
to review and set aside the arbitration award for Case Number
LPD081305 of 17 February 2014 is dismissed with costs
.”
DAVIS
JA
COPPIN
JA v MURPHY AJA concurred
APPEARANCES:
FOR
THE APPELLANTS: Adv
E Liebenberg
Instructed
by MML Attorneys
FOR
THE FIRST RESPONDENT: Adv
A Mosam SC and Adv N Motsepe
Instructed
by Verveen Attorneys