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[2021] ZALAC 24
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Sol Plaatje Municipality v South African Local Government Bargaining Council and Others (PA12/19) [2021] ZALAC 24; [2021] 11 BLLR 1096 (LAC); (2022) 43 ILJ 145 (LAC) (5 August 2021)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PA12/19
In the
matter between:
SOL
PLAATJE
MUNICIPALITY Appellant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL First
Respondent
COMMISSIONER MOLOI
N.O. Second
Respondent
BOTHA COLLIN
BERESFORD Third
Respondent
FRITZ
LIONEL Fourth
Respondent
Heard:
27
May 2021
Delivered:
Deemed
to be 05 August 2021
CORAM:
Davis
JA, Coppin JA et Savage AJA
JUDGMENT
COPPIN
JA
[1] Following
their dismissal by the appellant (“the municipality”) for
misconduct relating to an air-conditioner
owned by the municipality,
the third and fourth respondents (referred to respectively as, “Mr
Botha” and “Mr
Fritz”) were successful in
arbitration proceedings before the first respondent (“the
SALGBC”) where the second
respondent (“the arbitrator”),
in an award, ordered their reinstatement with full back-pay.
[2] An
application brought by the municipality to review the award was
dismissed by the Labour Court (Mahosi J).
This is an appeal against
that order of the Labour Court (“the court
a
quo
”). Leave to appeal having
been granted on petition.
[3] The
arbitrator decided the matter on the version of the municipality,
after, effectively, rejecting the version
proffered by Messrs Botha
and Fritz, through the testimony of Mr Botha. The ultimate issue
before the court
a quo
was whether the arbitrator’s award, in which the arbitrator
found, in essence, that certain of the charges of misconduct
had not
been proved against them, respectively, and their dismissal was not
appropriate, fell within the limits of reasonableness.
[4] We
were informed from the bar that since the lodging of the appeal, Mr
Fritz had sadly passed away. Though
no notice of substitution was
delivered and nobody officially represented his estate at the hearing
before us, Mr Botha’s
legal representative, attorney, made
submissions that were broad and also covered Mr Fritz.
The
facts
[5] The
municipality is situated in Kimberley, Northern Cape. Until their
dismissal, Messrs Botha and Fritz were
employed as carpenters in a
department or section of the municipality styled “the
Directorate of Economic Development”.
[6] On
Wednesday, 6 May 2015, Mr Calvert, to whom Mr Botha reported,
instructed Mr Botha, who was the supervisor
of a crew which included
Mr Fritz and about three others, to repair the roof, ceilings and
eaves at the Floors Community Hall in
Kimberley (“the hall”).
[7] When
Mr Calvert revisited the site the same day he found Mr Botha and his
crew dismantling an air-conditioner
fixed to the roof of the hall. He
stopped and admonished them and told them that their conduct could
result in disciplinary action
being taken against them.
[8] Later
on that same day Mr Bitterbos, a security official of the
municipality, found Mr Botha and his crew with
the municipal vehicle,
on which the parts of the air-conditioner had been loaded, outside
and close to the premises of MM Scrapyard.
When he confronted Mr
Botha, the latter informed him,
inter
alia
, that Mr Calvert had given them
permission to dismantle the air-conditioner, and explained that they
were busy with “a spin”
(a slang term, implying that they
were in the process of making a deal in respect of ill gotten
things).
[9] Mr
Bitterbos reported this to Mr Calvert, who came to the scene. The
vehicle together with the parts were then
taken to the premises of
the municipality where it was to be secured. Although Mr Calvert
denied authorising Mr Botha and his crew
to dismantle the
air-conditioner, he took pity on them and decided not to lay criminal
charges.
[10] On
Saturday, 9 May 2015, Mr Botha, accompanied by some of his crew, went
to the municipal premises where the
vehicle was kept and tried to
first bribe and then, through threats and personal insults, coerce
the security guard on duty, Mr
Segwagwa, to give him access to the
vehicle and the parts. Mr Segwagwa reported this to Mr Bitterbos.
Although nothing had been
taken on this occasion, about a week later
Mr Calvert informed Mr Bitterbos that the parts had been stolen from
where they had
been kept and as a result a case was opened with the
police.
[11] The
events of 8 and 9 May resulted in disciplinary action being taken
against Mr Botha and his crew. They
were charged with three counts of
misconduct, which read as follows:
’
Charge
1
It is alleged that you
contravened clauses 1.2.3 and 1.2.5 of Annexure A of the South
African Local Government Bargaining Council
Disciplinary Procedure
collective agreement. In that on or about Friday, 8 May 2015 you sold
metal, copper pipes, pieces of the
motor of the air-conditioner at
Floors Community Hall to a scrap metal dealer in Kimberley. The
estimated damage to the cooling
and heating system of the
air-conditioner from the Floors Community Hall, which is the property
of Sol Plaatje Municipality, is
in the vicinity of R 200,000.
Charge
2
It is alleged that you
contravened clause 1.2.4 of Annexure A of the South African Local
Government Bargaining Council Disciplinary
Procedure collective
agreement. In that on or about Friday, 8 May 2015, you disobeyed a
reasonable instruction from your supervisor,
Mr F Calvert, who is the
superintendent of the Maintenance Section by not fixing the roof and
gutters of the Floors Community Hall,
but rather opted to grind off
pieces of the motor of the air-conditioner of the Floors Community
Hall which is the property of
Sol Plaatje municipality.
Charge
3
It is alleged that you
contravened clauses 1.2.3 and 1.2.5 of Annexure A of the South
African Local Government Bargaining Council
Disciplinary Procedure
collective agreement. In that on or about Saturday, 9 May 2015 you
entered the premises of the employer,
Sol Plaatje municipality
workshop complex in Ashburnham with the intention to gain entry into
the maintenance section building
in order to get hold of the pieces
of metal from the air-conditioner that was grinded off from the
air-conditioner of the Floors
Community Hall. The pieces of metal
were conserved as proof by the employer in the Maintenance Complex
and you therefore unlawfully
intended to retrieve the pieces of metal
out of the Maintenance Section Building in order to sell the pieces
to a scrap metal dealer.’
[12] The
disciplinary hearing was set down for 18 November 2015. On that day,
the matter proceeded in the absence
of Mr Botha and his crew, after
they left the hearing with their union representative, without
participating and despite being
warned not to do so. After pleas of
not guilty to all the charges were entered in respect of all of them,
the presiding officer
proceeded to hear the evidence adduced by the
municipality. At the conclusion, the presiding officer found that Mr
Botha and his
crew (including Mr Fritz) were guilty as charged and
that dismissal was the only appropriate sanction.
[13] Mr
Fritz and Mr Botha were respectively informed on 25 and 26 November
of the outcome of the hearing; that
they were dismissed with
immediate effect; and that the last date for their remuneration was
25 November 2015. They were also informed
of their right of appeal
and that the disciplinary hearing had determined the extent to which
they, respectively, were to be held
accountable for the damage caused
to the air-conditioner - Mr Botha for 45% and Mr Fritz for 15% of the
damage.
[14] Their
union referred an unfair dismissal dispute on their behalf to the
SALGBC. A certificate of outcome of
the conciliation was issued on 12
January 2016, and at the request of their union the matter proceeded
to arbitration before the
arbitrator. This took place on 29 February
2016. Since Mr Botha and Mr Fritz had opted to be represented by a
private attorney
and elected no longer to be represented by their
union and union representative, their hearing was separated from that
of the other
crew members. Their hearing proceeded and that of the
other crew was postponed.
[15] At
the hearing, Messrs Calvert, Bitterbos and Segwagwa gave evidence on
behalf of the municipality. Mr Fritz
did not testify and it is
recorded in the award that it had been agreed between Messrs Botha
and Fritz that Mr Botha was to testify
on behalf of both of them. In
his evidence, Mr Botha denied any wrongdoing, and alleged that he had
been given permission by Mr
Calvert to dismantle the air-conditioner.
He denied that they sold or intended to sell the parts to a scrap
dealer, and ascribed
their presence in the vicinity of the scrap
dealer to coincidence, as they were there to drop-off one of the crew
who had to get
a taxi. Mr Botha also denied trying to bribe and then,
coercing or threatening Mr Segwagwa in order to get access to the
parts
that were kept in the Maintenance section on 9 May, and
ascribed his presence at the maintenance section to something rather
innocuous.
According to him, he had forgotten his lunch box and keys
in the municipal vehicle and was there merely to retrieve those
items.
The
Award
[16] In
his award, the arbitrator found Mr Botha to have been an evasive and
unreliable witness who did not hesitate
to make up and adapt his
testimony and version as circumstances suited him. The arbitrator,
effectively, rejected Mr Botha’s
version and decided the matter
on the version of the municipality adduced through Messrs Calvert,
Bitterbos and Segwagwa. Notwithstanding,
having analysed the evidence
and the charges, the arbitrator concluded that Messrs Botha and Fritz
were not guilty on charge 1,
because it had not been provedn that
they sold the parts as alleged in the charge. According to the
arbitrator, the finding of
the chairperson of the disciplinary
hearing that the respondents had attempted to sell the parts did not
justify finding them guilty
on charge 1, because that charge alleges
an actual sale and not an attempted one.
[17] According
to the arbitrator, what Mr Botha had told Mr Bitterbos, namely that
they were “busy with a
spin” did not amount to the
offence of selling the parts in question. The arbitrator found that
in any event, a mere intent
to sell did not amount to an attempt to
sell, implying that the respondents could not even have been found
guilty of an attempt
to sell the parts.
[18] In
respect of charge 2, the arbitrator found that whatever instruction
had been given by Mr Calvert, had been
given to Mr Botha and not to
Mr Fritz and that it is only Mr Botha who could have instructed Mr
Fritz. Thus, according to the arbitrator,
it could not be found that
Mr Fritz had disobeyed the instruction given by Mr Calvert and that
Mr Fritz’s dismissal for that
reason was “baseless and
unfair”. The arbitrator also seems to have made something of
the fact that Mr Calvert had
admonished Mr Botha about dismantling
the air-conditioner, but had not instructed them to stop, although he
concluded, ultimately,
that Mr Botha had been rightly found guilty of
this charge of misconduct.
[19] Regarding
charge 3, the arbitrator found that there was no basis in the
evidence for finding Mr Fritz guilty
of this misconduct. Once again
the arbitrator found, in effect, that while it may have been proven
that Mr Botha (and those accompanying
him) intended “to get
hold of the parts to sell to a scrap”, the fact that there was
no evidence that they actually
got hold of the parts and sold them to
the scrap yard did not mean that misconduct on the part of Mr Botha
had been proved. According
to the arbitrator, proof of “bare
intent” on its own did not justify the dismissal of Mr Botha.
[20] The
arbitrator rejected the argument made on behalf of the municipality
that Mr Fritz and the other crew members
were guilty of “derivative”
or “team” misconduct in respect of charge 1. According to
the arbitrator, because
that charge (as worded) had not been proved,
i.e. it had not been proved that they sold the parts to the scrap
yard, neither Mr
Botha, nor any of his crew could be found guilty of
the misconduct alleged in that charge, let alone of derivative or
team misconduct.
[21] Consequently,
the arbitrator found that Mr Fritz was not guilty of any misconduct
and that Mr Botha was similarly
not guilty of the misconduct
described in charges 1 and 3, but guilty of the misconduct described
in charge 2. The arbitrator further
reasoned that the latter
misconduct did not justify a sanction of dismissal and that there was
no evidence suggesting the contrary.
[22] The
arbitrator, accordingly, concluded that the dismissals of Mr Botha
and Mr Fritz, even though procedurally
fair, were substantively
unfair, and made the following award:
29.1 I
find that the dismissal of Colin Botha and Lionel Fritz by Sol
Plaatje Local Municipality on 30 November 2015 was procedurally
fair
but substantively unfair;
29.2 I order Sol Plaatje
Local Municipality to reinstate Colin Botha and Lionel Fritz with
effect from 30 November 2015 and to pay
arrear salaries (with the
necessary increments/adjustments as they may be entitled to) Colin
Botha in the amount of R114 683-31
and Lionel Fritz in the amount of
R62 150-83 by no later than 31 July 2016.
29.3 Colin Botha and
Lionel Fritz must report for duty on 1 July 2016.
29.4 I make no order as
to costs.’’
The
Review
[23] The
appellant brought an application in terms of section 145 of the
LRA
[1]
to review and set aside
the award. The grounds for review,
inter
alia
and in brief, are the following: that the arbitrator had failed to
appreciate that even though charge 1 alleged that the parts
had been
sold to the scrap yard and the evidence led by the municipality did
not establish an actual sale, it did indeed prove
an attempt to sell,
or dishonest conduct on the part of Mr Botha and his crew in that
regard; that the charges were wide enough
to encompass such dishonest
conduct; that the arbitrator had generally failed to consider the
principal issues before him and had
“evaluated the wrong facts
and evidence”, while ignoring “pertinent facts and
evidence”; as a result, the
arbitrator came to a conclusion
that a reasonable arbitrator would not have come to; and finally
that, in any event, reinstatement
was not appropriate because the
municipality could not reasonably be expected to trust Mr Botha and
his crew after what they did.
[24] The
application was opposed by both, Messrs Botha and Fritz. Mr Botha
deposed to the opposing affidavit on
behalf of both of them, while Mr
Fritz deposed to a simple confirmatory affidavit. In his affidavit,
Mr Botha defended the award,
but also repeated his version of the
events that had already been rejected by the arbitrator, and even
though he did not seek to
counter-review the award.
The
Court a quo
[25] The
court
a quo
found that there was no merit in the municipality’s challenge
of the award regarding the separation of the hearings, and
nothing
more needs to be said about that ground because the municipality did
not persist with it on appeal. The court
a
quo
further held that the arbitrator
did not misconceive the nature of the dispute before him. According
to the court
a quo
,
the issue before the arbitrator “was whether, on the balance of
probabilities, the employees committed the misconduct they
were
charged with.” The court found that the allegation, that the
arbitrator misconceived the nature of the dispute, constituted
an
attack upon the arbitrator and that it was “unwarranted and
uncalled for”; that the arbitrator had “considered
the
appropriateness of the sanction and had been reasonable in his
assessment of the evidence before him and had reached a conclusion
that any reasonable decision-maker would have reached on the issue of
the probability of the versions placed before him”.
The court
a
quo
also found that the municipality
“has not established any basis upon which the court could find
that the arbitrator’s
award was reviewable”.
Consequently, it dismissed the review application, but made no order
in respect of the costs.
Summary
of the argument on appeal
[26] The
appellant argued, in essence, that it never set out to prove that the
sale of stolen property had taken
place; that its case was about the
stripping of the air conditioner and the three charges of misconduct
flowed from there. It contended
that the arbitrator misconceived the
law and the evidence on the point and that the arbitrator
“incorporated irrelevant considerations
and failed to
appreciate the nature of the dishonest acts of the employees”.
According to the appellant, the probabilities
point towards a
reasonable inference that Mr Botha and his crew had the intention of
misappropriating the parts of the air conditioner
that they had
stripped for their own gain. Reference was made to this Court’s
decision in
Aquarius
Platinum (SA) (Pty) Ltd v Commission for Conciliation Mediation &
Arbitration & others
[2]
regarding
what the arbitrator ought to have focused on, and also to this
Court’s decision in
Head
Department
of Education v Mofokeng & others
[3]
and
others for the principle that an arbitrator ought to consider all
relevant facts.
[27] The
argument on behalf of Mr Botha (and by extension, on behalf of Mr
Fritz) advanced by the attorney, went
beyond merely defending the
reasonableness of the award and extended toward defending the
credibility of Mr Botha and the acceptability
of his version,
notwithstanding that the arbitrator had made adverse credibility
findings against Mr Botha and had, effectively,
rejected his version,
and no counter-review had been brought in that regard.
Evaluation
[28] The
only grounds left for consideration are whether, it could be found
reasonably that on the evidence led
in respect of the charges,
misconduct was proved on the part of Mr Botha and Mr Fritz in respect
of the charges ( in the case of
Mr Botha charges 1 and 3; and in
respect of Mr Fritz charges 1, 2 and 3); and whether that misconduct
could reasonably have been
found to have involved dishonesty, and
whether the sanction of dismissal was the appropriate remedy in
respect of the charges they
could reasonably have been found guilty
on.
[29] It
is trite that an arbitrator, or commissioner, must apply his mind to
all the evidence, and that a failure
to do so may constitute an
irregularity if it shows a misconception of the true enquiry, or
results in an unreasonable outcome.
[4]
[30] It
has also been repeatedly held by this Court that there is a major
difference between the wording of charges
in criminal matters and
that of charges in disciplinary proceedings, and that an unduly
technical approach to the framing and consideration
of the latter
should be avoided.
[5]
There is
also authority in this Court that if the main charge of misconduct is
not proved, but an attempt to commit such misconduct
is proved, the
employee may be found guilty of such an attempt on that same charge.
[31] The
arbitrator reasonably (if not correctly), rejected Mr Botha and Mr
Fritz’s version and decided the
matter on the version proffered
by the municipality. However, the arbitrator erred in his
interpretation of the charges and seems
to have adopted an overly
technical approach in that regard and to have overlooked crucial
facts/evidence that led him to unreasonable
conclude that charges 1
and 2 had not been proven against Messrs Botha and Fritz.
[32] It
is clear on the accepted version that Mr Botha and his crew were not
authorised to work on, let alone dismantle
the municipality’s
air conditioner and strip its parts. They disregarded the instruction
that they had been given. Their
dismantling of the air conditioner
was wrongful and unlawful having not been authorised. They brazenly
did as they pleased. Having
removed the parts, they transported them
to where they were found, close to, or outside, the scrapyard.
[33] When
they were confronted by Mr Bitterbos, Mr Botha, either brazenly, or
naively, hoping to entice Mr Bitterbos
to partake in their scheme,
informed him that they were there to make a deal to sell the parts.
That was enough to establish an
unlawful attempt to sell those parts.
It was much more than mere intent. Mr Botha and his crew not only
intended to strip and sell
the parts but acted on that intention. Mr
Bitterbos’, and subsequently Mr Calvert’s intervention,
stopped them from
fully executing their dishonest scheme.
[34] The
parts were confiscated and taken back to the municipal premises for
safekeeping as evidence. Mr Botha
tried to remove those parts from
the municipal premises through dishonest means and by coercion and
threats (which included swearing
and personal insults).
[35] Taking
all the evidence into account the only reasonable inference to be
drawn is that Mr Botha and his crew
intended (unlawfully) to sell
those parts for their own gain at the scrapyard after having removed
them. They were caught in the
process of attempting to do so. They
acted in concert and their acts were not only without the authority
of the municipality but
were dishonest. Mr Botha’s false
versions about what they did, actually compounded matters. Mr Fritz’s
confirmation
of those false versions also compounded his dishonesty.
[36] In
respect of charge 1, even though Mr Botha and his crew could not be
found guilty of actually selling the
parts they could have been found
guilty of attempting to steal and sell the parts for their own gain.
But more so, they could have
been found guilty of contravening
clauses 1.2.3 and 1.2.5 of the disciplinary code (as alleged in the
charge), because clause 1.2.3
required all employees to perform their
tasks and job diligently, carefully and to the best of their ability,
and clause 1.2.5
required all employees to conduct themselves with
honesty and integrity.
[37] In
respect of charge 2, Mr Botha was rightly found guilty of misconduct
alleged there, but Mr Fritz could
not escape liability on the basis
that Mr Calvert had instructed Mr Botha, and had not instructed him
directly. He was present
when Mr Calvert gave the instruction and
admonished them. Mr Fritz was or must have been aware that Mr Botha
was bound to follow
Mr Calvert’s instruction and could not give
his crew a contrary instruction. Finding Mr Fritz guilty of charge 2
was thus
not “baseless and unfair”. Clause 1.2.4 of the
disciplinary code provides that “all employees should obey all
lawful and reasonable instructions given by a person having the
authority to do so.”
[38] Regarding
charge 3, it is not clear from the evidence whether Mr Fritz was with
Mr Botha when the latter went
to the municipality’s premises on
9 May. It could reasonably have been found that it was not proved
that he had accompanied
Mr Botha. On the other hand, Mr Botha’s
conduct there was nefarious and despicable. There is no reason to not
accept Mr Segwagwa’s
version of what transpired there. His
conduct was most certainly in breach of clauses 1,2,3 and 1.2.5. of
the disciplinary code.
That is what a reasonable arbitrator would
have found.
[39] Even
though being found guilty of charge 2, on its own, did not warrant
dismissal, the other charges were
much more serious. The extensive
damage caused to the municipality’s property, the cost of
replacing the air conditioner,
the dishonesty, which was compounded
by the false testimony of Mr Botha (and with which Mr Fritz agreed),
was sufficiently serious
to warrant dismissal. And that is what a
reasonable arbitrator would have found in light of all the relevant
facts.
[40] The
failure of the arbitrator to find accordingly is indeed a reviewable
irregularity. The findings of the
court
a
quo
to the contrary are not correct.
[41] It
follows that the appeal must succeed. Taking the facts, the law and
fairness into account, a costs order
is not appropriate. There shall
therefore be no costs order.
[42] In
the result, the following order is made:
42.1 The
appeal is upheld;
42.2 The order
of the Labour Court is set aside and substituted with the following
order:
“
1.
The award of the second respondent, acting under the auspices of the
first respondent, under case no. NCD12150 is reviewed and
set aside
and is substituted with the following:’1. The dismissal of Mr
Collen Botha and Mr Lionel Fritz by the Sol Plaatje
Local
Municipality was both, procedurally and substantively fair. 2. There
is no costs order.’”
P
Coppin
Judge of the Labour
Appeal Court
Davis
JA and Savage AJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR
THE APPELLANT: Adv
F Venter
Instructed
by Van de Wall Inc.
FOR
THE THIRD RESPONDENT: Ms
Mkabayi
of
Nobahle Mkabayi Attorneys
[1]
The
Labour Relations Act 66 of 1995.
[2]
(2020)
41 ILJ 2059 (LAC).
[3]
Head
Department
of Education v Mofokeng
&
others
[2015] 1 BLLR 50
(LAC).
[4]
See,
inter
alia
,
Mofokeng
(above)
para 30;
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC);
Cusa
v Tao Ying Metal Industries and others
[2009] 1 BLLR 1
(CC) paras 76 and 134;
Sidumo
and another v Rustenberg Platinum Mines Ltd
2008 (2) SA 24 (CC).
[5]
See,
eg. in
Pailprint
(Pty) Ltd v Lyster NO and others
(2019 40 ILJ 2047 (LAC) para 18;
First
National Bank Ltd v Language
(2013)
34 ILJ 3103 (LAC).