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[2024] ZALCJHB 155
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Department of Home Affairs v Makhanya and Others (JR2032/19) [2024] ZALCJHB 155 (27 March 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2032/19
In
the matter between:
DEPARTMENT
OF HOME
AFFAIRS
Applicant
and
COMMISSIONER
LINDIWE MAKHANYA N.O.
First Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Second Respondent
PSA
obo
MGOZA Third
Respondent
Heard:
7 July 2023
Delivered:
27 March 2024
Summary:
CCMA arbitration proceedings – Test for review considered –
appropriate test is that of the existence of an
irregularity and
unreasonable outcome.
Dismissal
– evidence considered – evaluation of evidence by the
Commissioner reasonable and justifiable – findings
of the
Commissioner on the evidence reasonable – no basis to interfere
with the Commissioner’s conclusions.
Dismissal
– substantive fairness - allegations of dishonesty relating to
an irregular registration of Mncwabe as a biological
child of Ludwayi
on 4 July 2008 – the evidence revealed that the Employee was 3
months into her internship at the time the
irregular registration
took place. The Applicant’s contention that registration was
completed when an intern signed the BI-24
is untenable. At best, the
evidence revealed that the Employee failed to pick up discrepancies
on the ID book and date of birth.
The Commissioner’s conclusion
that the dismissal would be inappropriate for the Employee’s
failure to pick up the discrepancies
is reasonable.
Procedural
fairness – the failure to institute and finalise disciplinary
process promptly damages the administration of justice.
The
Commissioner’s conclusion on this aspect cannot be faulted.
JUDGMENT
CITHI,
AJ
Introduction
[1]
This
is an application in terms of section 145 of the Labour Relations
Act
[2]
(LRA), brought by the
Department of Home Affairs (Applicant) to review and set aside an
arbitration award issued by Commissioner
Lindiwe Makhanya
(Commissioner) dated 11 June 2019 under case number GPBC2295-17
(Award), under the auspices of the Second Respondent
(Bargaining
Council). In terms of her Award, the Commissioner found that the
Employee’s dismissal was both substantively
and procedurally
unfair. The Commissioner ordered the Applicant to reinstate the
Employee to her previous position on the same
terms and conditions
applicable before her dismissal. The Third Respondent opposes the
review application.
[2]
On
31 August 2021, the Applicant was granted condonation for the late
filing of its review application and Rule 7A(6) notice in
terms of
the Labour Court Rules
[3]
.
Background
facts
[3]
The
background facts will only be recounted to the extent that they are
relevant to this application and the Applicant’s grounds
of
review.
[4]
The
Employee joined the Applicant on 31 March 2008 as an intern serving
in the National Youth Service Program. The National Youth
Service
Program (Program) is a government initiative aimed at exposing young
graduates to training that is necessary for them to
gain employment
in the relevant sectors. The duration of the Program was for a period
of 12 months. The Program commenced on 31
March 2008 and ended on 31
March 2009. Between 1 April 2009 and 30 June 2010, the Employee was
engaged on a fixed-term contract.
On 1 July 2010, the Employee was
employed on a permanent basis as an Administrative Clerk. The
Employee was based at the Applicant’s
Pietermaritzburg office
at all material times.
[5]
On
or about 4 November 2015, the Employee was issued with a notification
to attend a disciplinary hearing scheduled for 26 November
2015 to
answer to allegations of gross dishonesty in that on 4 July 2008, she
registered the birth of Mvuselelo Thumimi Kwanele
Mncwabe (Mncwabe)
under the name of Jabulile Ludwayi (Ludwayi). Mncwabe was not
Ludwayi’s biological child, nor was she related
to her in any
manner.
[6]
The
facts underpinning the Employee’s misconduct are briefly as
follows: in 2008, Ludwayi attempted to register her biological
child,
Nolwazi Ludwayi (Nolwazi), on the National Population Register (NPR);
Ludwayi was unable to register Nolwazi because Nolwazi’s
birth
date was within 6 months of Mncwabe’s registration on the NPR
as Ludwayi’s biological child; Mncwabe’s
birth
certificate was issued on 9 October 2008; Mncwabe was registered for
a child social grant with the South African Social Security
Agency
(SASSA); Ludwayi could not obtain a birth certificate for Nolwazi nor
register her for a child social grant.
[7]
The
Applicant launched an investigation to ascertain the circumstances
surrounding the irregular registering of Mncwabe on the NPR
as
Ludwayi’s biological child. The evidence was that when
registering a child, a parent is required to complete the BI-24
application form
[4]
. The
documents required when completing the BI-24 application form are the
ID copy of the mother, the mother’s clinic card
and the
mother’s maternity card. The BI-24 application form for the
registration of Mncwabe was completed on 4 July 2008.
[8]
On
that day, the Employee, whilst still an intern, assisted the person
purporting to be Ludwayi with the BI-24 application form.
The
Employee’s signature and PERSAL number appear on the BI-24
application form. It is worth noting, however, that in part
E of the
BI-24 application form, the mother of Mncwabe is recorded as
Nompumelelo Mncwabe, but the ID number which appears in parts
C and E
belongs to Ludwayi. Crucially, the ID number recorded on the BI-24
form and date of birth did not correspond.
[9]
It
is common cause that the Employee had no access to the Applicant’s
062 and 192 functions. The 062 function is used to check
the validity
of the mother’s identity number. On the other hand, the 192
function is used to check whether the mother has
other children
registered under her name.
[10]
The
Employee handed over the BI-24 application form together with the
supporting documents to Marianne Du Preez (Du Preez), the
Chief
Administration Clerk/Supervisor of the Birth, Marriage and Death
Section for quality control and/or checking. Du Preez appended
her
signature to the BI-24 form, presumably after doing quality control.
The undisputed evidence was that Du Preez had access to
the
Applicant’s 062 and 192 functions. The BI-24 application form
was then handed over to Cheryl Ahrens (Ahrens), a Data
Capturer, to
capture the application on the system. Once captured on the system,
an ID number is generated and then a birth certificate
is issued. The
common cause evidence before the Commissioner was that Ahrens also
had access to the Applicant’s 062 and 192
functions.
[11]
The
Employee’s disciplinary hearing did not proceed as scheduled on
26 November 2015 for reasons that are not clear and not
reflected in
the record. Nonetheless, the disciplinary enquiry was conducted on 1
March 2017. On 23 March 2017, the Chairperson
of the disciplinary
hearing found the Employee guilty of dishonesty and directed the
parties to file submissions in mitigation
and aggravation by the end
of business on 31 March 2017. The Chairperson’s outcome on the
sanction was communicated to the
Employee on 3 August 2017. The
Employee filed an ill-fated appeal which was summarily dismissed on
11 October 2017. The Employee
acknowledged receipt of the outcome on
13 October 2017.
[12]
It
is common cause that the Employee is the only employee that was
charged for the incident relating to the irregular registration
of
Mncwabe as a biological child of Ludwayi. Neither Du Preez nor Ahrens
were charged.
[13]
For
the sake of completeness, it must be pointed out that in 2014, the
Employee, together with two colleagues, were subjected to
disciplinary hearing processes on allegations of gross dishonesty
and/or gross negligence in that they had processed the DHA-9
application form without following proper departmental procedures.
The chairperson of that disciplinary hearing found the employees
not
guilty of the allegations levelled against them.
Arbitration
Award
[14]
The
arbitration between the parties that resulted in the Award being
issued was held on 29 August, 26, 27 and 28 November 2018,
15
February, 11 April and 28 May 2019. The Applicant called Ludwayi, the
investigator, Sbongiseni Chamane (Chamane), Nokulunga
Cebekhulu from
SASSA (Cebekhulu), Thamsanqa Luthuli (Luthuli), Du Preez and Ahrens
as witnesses. The Employee testified and did
not call any witness.
[15]
In
her Award, the Commissioner concluded that the Employee’s
dismissal was procedurally unfair as a result of the Applicant’s
failure to comply with its own Disciplinary Code, PSCBC Resolution 1
of 2002, which required that disciplinary hearings must be
instituted
within a reasonable time. The Commissioner reasoned that the
Applicant failed to provide a plausible explanation for
the delay in
instituting disciplinary proceedings against the Employee despite
being aware of the allegations against the Employee
from at least
2013.
[16]
The
Commissioner further reasoned that the delay in instituting the
disciplinary proceedings prejudiced the Employee in that the
Applicant could not provide her with the necessary supporting
documents that accompanied the BI-24 application. The Employee’s
contention was always that the information on the BI-24 form
corresponded with the supporting documents that were provided to her
in 2008.
[17]
In
dealing with the question of substantive fairness, the Commissioner
took issues with the Applicant’s failure to produce
the
Standard Operational Procedure (SOP) that was applicable in 2008
which set out the procedure and responsibilities of everyone
who was
involved in the registration of Mncwabe as a biological child of
Ludwayi. The Commissioner rejected the notion that was
advanced by
Chamane and Du Preez that the Employee’s signature and PERSAL
number on the BI-24 application completed the registration
of the
child in question.
[18]
The
Commissioner accepted Luthuli’s and Ahrens’ evidence that
registration is only completed once the Supervisor (in
this case Du
Preez) had checked and approved the application form and the
information had been captured on the system by the Data
Capturer (in
this case Ahrens) and that this completion then results in the birth
certificate being issued. The Commissioner was
of the view that the
Employee’s role was minimal in this process. Crucially, the
Commissioner reasoned that it was not possible
for the Employee to
verify whether or not Mncwabe was Ludwayi’s child because she
did not have access to the Applicant’s
062 and 192 functions at
that time. Accordingly, the Commissioner concluded that the Employee
did not breach the Applicant’s
Rule.
[19]
The
Commissioner accepted the Employee’s version that the BI-24
application form was accompanied by supporting documents.
It is
common cause that the Applicant failed to place before the
Commissioner the supporting documents that accompanied the BI-24
application form to disprove the Employee’s version that the
information on the BI-24 form corresponded with the supporting
documents that were provided to her in 2008. The Commissioner drew a
negative inference from the Applicant’s failure to produce
the
supporting documents.
[20]
The
Commissioner further found that the Applicant failed to consistently
apply discipline because Du Preez (who was the Employee’s
Supervisor) was not charged. The Commissioner reasoned that Du Preez
ought to have picked up the obvious discrepancies on the BI-24
application form. The Commissioner rejected Du Preez’s
contention that she was not required to check whether the information
contained on the BI-24 application form corresponded with the
supporting documents provided.
[21]
As
a general proposition, the Commissioner accepted that misconduct was
committed which resulted in the irregular registration of
Mncwabe as
a biological child of Ludwayi. Nonetheless, the Commissioner reasoned
that, on a balance of probabilities, the Applicant
failed to adduce
evidence to show that the Employee was responsible for the irregular
registration of Mncwabe as a biological child
of Ludwayi.
[22]
The
Commissioner found that the Employee conceded that she failed to pick
up that the mother’s ID number and date of birth
on the BI-24
application form did not correspond. The Commissioner reasoned,
however, that the Applicant failed to adduce evidence
to show that
the Employee’s failure to pick up this discrepancy (incorrect
date of birth and ID number) led to the irregular
registration and
issue of the impugned birth certificate. Accordingly, reasoned the
Commissioner, even if the Employee was charged
and found guilty of
this conduct, dismissal would be inappropriate in the circumstances
of this case.
[23]
The
Commissioner concluded that the Applicant had not led evidence on the
breakdown of the employment relationship. The Commissioner
had regard
to the fact that the Employee was charged in 2015 and never suspended
until the conclusion of her disciplinary hearing
on 1 March 2017.
[24]
Ultimately,
the Commissioner concluded that the Employee’s dismissal was
substantively and procedurally unfair. It is this
conclusion that is
the subject of these review proceedings.
The
Review Test
[25]
The
parties made no real submissions on the test of review, and I do not
think they have differing contentions as to what the applicable
test
on review is. Nevertheless, it is worthwhile outlining the applicable
test as the proper application of the test permeates
the entirety of
this judgment.
[26]
In
Head
of the Department of Education v Mofokeng and others
[5]
the Labour Appeal Court (LAC) stated as follows:
[6]
‘
[31]
The
determination of whether a decision is unreasonable in its result is
an exercise inherently dependant on variable considerations
and
circumstantial factors. A finding of unreasonableness usually implies
that some other ground is present, either latently or
comprising
manifest unlawfulness. Accordingly, the process of judicial review on
grounds of unreasonableness often entails examination
of
inter-related questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis, reasoning or
effect
of the decision, corresponding to the scrutiny envisioned in
the distinctive review grounds developed casuistically at common law,
now codified and mostly specified in s 6 of the Promotion of
Administrative Justice Act (PAJA); such as failing to apply the mind,
taking into account irrelevant considerations, ignoring relevant
considerations, acting for an ulterior purpose, in bad faith,
arbitrarily or capriciously, etc. The court must nonetheless still
consider whether, apart from the flawed reasons of or any
irregularity
by the arbitrator, the result could be reasonably
reached in the light of the issues and the evidence. Moreover, judges
of the
Labour Court should keep in mind that it is not only the
reasonableness of the outcome which is subject to scrutiny. As the
SCA
held in
Herholdt
,
the arbitrator must not misconceive the enquiry or undertake the
enquiry in a misconceived manner. There must be a fair trial
of the
issues.
[32]
However,
sight may not be lost of the intention of the legislature to restrict
the scope of review when it enacted s 145 of the
LRA, confining
review to “defects” as defined in s 145(2) being
misconduct, gross irregularity, exceeding powers and
improperly
obtaining the award. Review is not permissible on the same grounds
that apply under PAJA. Mere errors of fact or law
may not be enough
to vitiate the award. Something more is required. To repeat: flaws in
the reasoning of the arbitrator, evidenced
in the failure to apply
the mind, reliance on irrelevant considerations or the ignoring of
material factors etc must be assessed
with the purpose of
establishing whether the arbitrator has undertaken the wrong enquiry,
undertaken the enquiry in the wrong manner
or arrived at an
unreasonable result. Lapses in lawfulness, latent or patent
irregularities and instances of dialectical unreasonableness
should
be of such an order (singularly or cumulatively) as to result in a
misconceived enquiry or a decision which no reasonable
decision maker
could reach on all the material that was before him or her.’
(footnotes omitted)
[7]
[27]
Shortly
thereafter, in
National
Union of Mineworkers and another v Rustenburg Platinum Mine
(Mogalakwena Section) and others
[8]
,
the LAC stated as follows:
‘
[25]
…
In
Heroldt
v Nedbank
it was said:
“
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings to
amount to
a gross irregularity as contemplated by section 145(2)(a)(ii) the
arbitrator must have misconceived the nature of the
inquiry or
arrived at an unreasonable result. 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. Material errors of fact, as
well as the weight and relevance to be
attached to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence
if their effect is to render the
outcome unreasonable.’
[26]
A
reasonable award is not necessarily a right or correct award. As long
as it falls within the range of reasonable decisions that
could be
made based on the evidence before the decision-maker, there would be
no reason to set the award aside. The reviewing court
should always
guard against substituting its views for those of the decision-maker.
It is pre-eminently the task of the CCMA or
Bargaining Council
commissioners to determine the fairness or otherwise of the
dismissal. Commissioners are not expected to give
awards that are
akin to judgments of the Supreme Court of Appeal or the
Constitutional Court. Awards are not meant to be perfect
or
satisfactory in all respects. The mere fact that an award is
unsatisfactory in one or more respects does not mean that it is
unreasonable.’
Grounds
for Review
[28]
The
Applicant contends that the Award is reviewable on the following
grounds:
28.1
The
Commissioner did not properly, rationally or justifiably apply her
mind to the facts and/or law in this case;
28.2
The
Award is not justifiable in relation to the reason given for such an
award;
28.3
The
Commissioner failed to properly, justifiably, or reasonably determine
and assess the evidence properly before her in this matter;
28.4
The
Commissioner has not given thought to relevant considerations and/or
has taken irrelevant considerations into account; and
28.5
The
decision reached by the Commissioner is not a decision that a
reasonable decision-maker would have reached in the same
circumstances.
[29]
Ultimately,
the Applicant assailed the Commissioner’s conclusion on
substantive and procedural fairness.
Analysis
Finding
on Guilt
[25]
The
Applicant submits that the Commissioner’s conclusion on guilt
was unreasonable and reviewable. In support of this contention,
the
Applicant takes issue with the Commissioner’s reasoning that
the Applicant failed to produce evidence to prove, on a
balance of
probabilities, that the Employee dishonestly registered Mncwabe as
Ludwayi’s biological child on 4 July 2008.
[26]
The
evidence before the Commissioner indicates that three employees,
namely, the Employee, Du Preez and Ahrens handled the processing
and
registration of Mncwabe on the NPR as a biological child of Ludwayi
on 4 July 2008. The common cause evidence was that the
Employee had
been 3 months into her internship at that time and had no access to
the 062 and 192 functions to verify the authenticity
of the mother’s
ID book and whether she had other children registered under her name
within a 6-month period. The Employee’s
evidence was that she
only checked whether part A, B, C, E and F of the BI-24 form was
completed.
[27]
The
Employee’s version was that she handed the BI-24 application
form together with the supporting documents over to her supervisor,
Du Preez, for checking, verification, and approval. Du Preez had
access to the 062 and 192 functions. The common cause evidence
is
that Du Preez failed to use the 062 and 192 functions to verify the
information provided in the BI-24 form. The BI-24 form was
then
handed over to Ahrens for capturing on the NPR. Ahrens also had
access to the 062 and 192 functions. It was only after the
information on the BI-24 form was captured on the NPR that a birth
certificate was issued.
[28]
Seen
thus, on the objective evidence, the Employee, Du Preez and Ahrens
were all intrinsically involved in the process that led
to the
registering and issuing of a birth certificate for Mncwabe. Du Preez
conceded under cross-examination that it was her responsibility
to do
quality control on the Employee’s work. Du Preez further
testified that she had previously picked up errors on the
application
forms completed by juniors. In my view, Du Preez’s failure to
use the 062 and 192 functions to verify the information
on the BI-24
application form constituted a serious dereliction of her duty as a
supervisor. As the Employee’s supervisor,
Du Preez was aware
that the Employee had no access to the 062 and 192 functions to
verify the information provided by the person
who completed the BI-24
form. The evidence before the Commissioner revealed that the Employee
only attended orientation programs
from 7 to 11 July and 21 to 25
July 2008, which was after the date in question (4 July 2008).
[29]
The
Applicant’s witnesses appeared to have accepted that the
Employee had no access to the 062 and 192 functions. However,
their
contention was that the Employee ought to have approached other
colleagues who had access to the 062 and 192 functions for
help or to
check discrepancies on the application. In my view, this argument
overlooks the fact that the BI-24 form was handed
over to Du Preez
(the Employee’s supervisor) for this exact reason. It is
inexplicable that Du Preez approved the BI-24 form
without doing the
necessary quality checks using the 062 and 192 functions. Luthuli’s
and Ahrens’s evidence was that
the supervisor was obliged to
use the 062 and 192 functions to verify the information provided on
the application form.
[30]
At
best for the Applicant, the evidence revealed that the Employee
failed to pick up the discrepancies on the ID number and date
of
birth and that the Employee ought to have picked up these obvious
discrepancies by simply comparing the information recorded
in part C
of the BI-24 form. The Commissioner observed, in my view correctly
so, that the Applicant failed to produce evidence
showing that the
Employee’s failure to pick up this discrepancy was the sole
reason that resulted in the issuing of the birth
certificate in
respect of Mncwabe.
[31]
I
am of the view that the Commissioner’s conclusion in this
regard is sufficiently connected to the objective facts. The
objective evidence revealed that the processing and capturing of the
information on the NPR resulted in the issuing of the birth
certificate. The Applicant’s contention that registration of
Mncwabe was completed when the Employee appended her signature
and
PERSAL number on the BI-24 form is not supported by the objective
evidence. The Commissioner’s reasoning that, even if
the
Employee was found guilty of failing to pick up the discrepancies as
mentioned above dismissal would have been inappropriate,
is eminently
reasonable.
[32]
The
Employee’s version was that the information provided on the
BI-24 form was supported by the documents provided to her.
It is
common cause that the Applicant only produced the BI-24 form that was
submitted on 4 July and not the supporting documents.
The Applicant
submits that the fact that there were no supporting documents to the
application is, in and of itself, evidence
of fraud on the part
of the Employee. This was never the Applicant’s version during
the arbitration nor was this version
put to the Employee. The
Employee’s undisputed evidence was that the BI-24 form was
accompanied by supporting documents.
[33]
The
Applicant provided no explanation for its failure to produce the
supporting documents during the arbitration proceedings. This
factor
was not missed by the Commissioner. In this regard, the Commissioner
drew a negative inference against the Applicant and
accepted the
Employee’s version that the BI-24 application form was
accompanied by supporting documents. I am of the view
that the
Commissioner’s approach to this aspect cannot be faulted. The
onus was on the Applicant to produce evidence to prove,
on a balance
of probabilities, that the Employee was guilty of the allegations
levelled against her. The Applicant’s failure
to produce
evidence that was relevant was a weighty factor that affected its
onus of proof. In any event, even if the Applicant’s
contention
is accepted, it would mean that Du Preez approved the BI-24
application form without having sight of the supporting
documents.
Similarly, it would also mean that Ahrens captured the information on
the NRP without having sight of the supporting
documents, in
particular the ID book of the mother.
[34]
The
Applicant further takes issue with the Commissioner’s
conclusion that there was no SOP regarding the birth registration
process in 2008. The evidence of Chamane and Du Preez during the
arbitration proceedings was that registration was completed when
the
Employee appended her signature and PERSAL number on the BI-24
application form. On the other hand, Ahrens and Luthuli suggested
that registration was completed after the BI-24 form was approved by
the supervisor (in this case Du Preez), the information was
captured
by a Data Capturer (in this case Ahrens) on the NPR, and a birth
certificate was issued.
[35]
It
is common cause that the Applicant failed to place before the
Commissioner the SOP that supported its contention that registration
was completed when the Employee (an intern) appended her signature
and PERSAL number to the BI-24 application form. In my view,
the
Applicant’s failure to produce the relevant SOP had a
significant impact on the question of onus. Put differently, there
was nothing before the Commissioner that could contradict the
objective facts which indicated that the approval and capturing of
the information on the NPR completed the registration.
[36]
The
SOP would have shed some light on the birth registration procedures
which was applicable at that time, the roles and responsibilities
of
all employees involved in the process of birth registration, and
their respective levels of accountability. This Court is of
the view
that the Applicant’s contention that the Employee was solely
responsible for the irregular registration of Mncwabe
as a biological
child of Ludwayi is plainly untenable having regard to the objective
facts. The Commissioner’s conclusion
that the Employee played a
minimal role in the registration of Mncwabe is sufficiently connected
to the evidence. On the objective
evidence, the Employee was an
intern and acted as the receiving clerk who handled the BI-24 form on
4 July 2008 before it was handed
over to Du Preez for quality
control. As the Commissioner correctly observed, the only blame
attributable to the Employee was her
failure to identify
discrepancies on the BI-24 application form relating to the ID number
and date of birth of the mother. Accordingly,
this Court is of the
view that the conclusion reached by the Commissioner is reasonable.
[37]
The
Applicant further contends that the Commissioner’s findings on
inconsistency were made without any evidence led during
the
arbitration proceedings. This contention is patently without merit.
The undisputed evidence before the Commissioner indicates
that the
Employee, Du Preez and Ahrens were involved in the application
process that led to the irregular registration of Mncwabe
as a
biological child of Ludwayi. The common cause evidence was that the
Employee was 3 months into her internship.
[38]
The
further common cause evidence was that the Employee’s
supervisor, Du Preez, was not subjected to any disciplinary processes
for her failure to exercise quality control when handling the BI-24
application form. The Employee was the only employee that was
selected for attention in this matter. In paragraph 97 of the Award,
the Commissioner concluded that the failure to subject Du
Preez to a
disciplinary process demonstrated that the Applicant applied
discipline inconsistently. The evidence before the Commissioner
disclosed that Du Preez failed to perform her obligations as a
supervisor when she failed to use the 062 and 192 functions to verify
the information contained in the BI-24 form. Self-evidently, had Du
Preez performed her duties, she would have noticed that the
ID number
recorded on the BI-24 form belonged to Ludwayi and not Nompumelelo
Mncwabe as recorded in part C of the application form.
[39]
In
ABSA
Bank Limited v Naidu and others
[9]
,
the LAC, per the late Ndlovu JA, made the following observations on
the factor of inconsistency in employee discipline:
‘
[36] However,
it ought to be realised, in my view, that the parity principle may
not just be applied willy–nilly
without any measure of caution.
In this regard, I am inclined to agree with Professor Grogan when he
remarks as follows:
“
[T]he
parity principle should be applied with caution. It may well be that
employees who thoroughly deserved to be dismissed profit
from the
fact that other employees happened not to have been dismissed for a
similar offence in the past or because another employee
involved in
the same misconduct was not dismissed through some oversight by a
disciplinary officer, or because different disciplinary
officers had
different views on the appropriate penalty.’
[40]
At
paragraph 42, the Court held that:
‘
[42]
Indeed,
in accordance with the parity principle, the element of inconsistency
on the part of an employer in its treatment of employees
is an
important factor to take into account in the determination process of
the fairness of a dismissal. However, as I say, it
is only a factor
to take into account in that process. It is by no means decisive of
the outcome on the determination of reasonableness
and fairness of
the decision to dismiss. In my view, the fact that another employee
committed a similar transgression in the past
and was not dismissed
cannot, and should not, be taken to grant a licence to every other
employee, willy-nilly, to commit serious
misdemeanours, especially of
a dishonest nature, towards their employer on the belief that they
would not be dismissed. It is well
accepted in civilised society that
two wrongs can never make a right. The parity principle was never
intended to promote or encourage
anarchy in the workplace. As stated
earlier, I reiterate, there are varying degrees of dishonesty and,
therefore, each case will
be treated on the basis of its own facts
and circumstances.’
[41]
The
legal position is that the notion of inconsistency in employee
discipline is but one of the factors that a commissioner is required
to take into account when assessing whether the sanction of
discipline imposed is fair. However, as correctly pointed out in the
ABSA
judgment (
supra
),
it is by no means decisive of the outcome on the determination of
reasonableness and fairness of the decision to dismiss. In
casu
,
the Commissioner considered inconsistency as one of the factors she
was required to consider when dealing with the question of
an
appropriate sanction. This approach is correct in law. On the facts,
the Commissioner’s reasoning that the Applicant acted
inconsistently is reasonable and beyond reproach. The role played by
Du Preez was significant in the processing of the BI-24 form.
The
Applicant provided no plausible explanation for its failure to take
disciplinary actions against Du Preez.
[42]
In
the final analysis, the Commissioner’s conclusion that the
Applicant failed to discharge its onus to prove, on a balance
of
probabilities, that the Employee acted dishonestly on 4 July 2008
when she allegedly registered Mncwabe as a biological child
of
Ludwayi, is reasonable for reasons stated above. The evidence, at
best, revealed that the Employee failed to pick up discrepancies
on
the ID book and date of birth. For this infraction, dismissal would
be grossly inappropriate taking into account that the Employee
was
only 3 months into her internship when the incident occurred, and
that the Applicant turned a blind eye to the role played
by Du Preez
in the registration process.
[43]
The
Applicant’s failure to discipline the supervisor who was
required to do quality control on the Employee’s work reveals
an inconsistent approach to disciplining employees who were involved
in the irregular registration of Mncwabe as a biological child
of
Ludwayi on 4 July 2008. I am of the view that the conclusion reached
by the Commissioner on guilt is reasonable having regard
to the
material properly before her.
Finding
on procedural fairness
[44]
The
Applicant contends that the Commissioner’s findings that it
failed to comply with its disciplinary code, PSBC Resolution
1 of
2003 (Resolution 1 of 2003), are not supported by evidence on
procedural fairness. Clause 2.2 of Resolution 1 of 2003 states
that
discipline must be applied in a prompt, fair, consistent, and
progressive manner. Clause 7.1 states that the employee must
be given
notice at least five working days before the date of the hearing.
Lastly, clause 7.3 states that the disciplinary hearing
must be held
within ten working days after the notice referred to in paragraph 7.1
(a) is delivered to the employee.
[45]
In
casu
,
it is common cause that Ludwayi approached the Applicant in 2008
seeking to register Nolwazi as her biological child. Ludwayi
was
informed that she could not register another child because she had a
child (Mncwabe) who had been registered within 6 months
of her
attempt to register Nolwazi. In her evidence, Ludwayi stated that she
informed the Applicant that Mncwabe was not her biological
child. The
Applicant escalated the matter to Chamane for investigation in 2013.
It is not clear on the evidence why the matter
was only escalated to
Chamane in 2013 in circumstances where the Applicant’s
officials at the Pietermaritzburg branch were
fully appraised of the
irregular registration of Mncwabe as a biological child of Ludwayi in
2008.
[46]
On
4 November 2015 (2 years later), the Applicant issued the Employee
with a notice to attend a disciplinary hearing that was scheduled
for
26 November 2015. However, for reasons that are not entirely clear on
the record, the hearing did not proceed on 26 November
2015. The
hearing was reconvened on 1 March 2017. The outcome of the
disciplinary hearing was communicated to the Employee on 3
August
2017. In paragraph 90 of the Award, the Commissioner concluded that
the hearing was not in compliance with Resolution 1
of 2003 in that
it was not conducted promptly upon the Applicant knowing of the
allegations.
[47]
In
Passenger
Rail Authority of South Africa v Tale N.O and Others
[10]
,
this Court per Snyman AJ referred to all the relevant authorities and
summarised the legal position as follows:
‘
[37] This
brings me to the issue of procedural unfairness. The first respondent
had proper regard to the
disciplinary code that required disciplinary
proceedings to be concluded within 30 days, and was highly critical
of the applicant
taking two years and four months to finalise those
proceedings. The first respondent also referred to the fact that the
applicant
presented no evidence to explain why it had taken so long
to finalize the disciplinary hearing. Mainly for these reasons, the
first
respondent accepted the dismissal of the third respondent was
procedurally unfair.
[38]
In
my view, the aforesaid conclusions arrived at by the first respondent
on the issue of procedural unfairness is not only reasonable,
but
undoubtedly correct. It is true that the applicant did apply for an
extension of the 30 days’ time limit in terms of
the
disciplinary code, and this extension was granted on 15 May 2018
before the time limit expired. It is also true that this extension
is
not coupled to a further deadline, and the disciplinary code is
silent on this. However, I believe that the fact that the applicant
obtained an extension and the disciplinary code being silent on the
period of extension, cannot serve as some kind of open licence
for
the applicant to conclude the disciplinary proceedings when the
applicant felt the need or motivation to do so, no matter how
long it
takes. And certainly, where there is a substantial delay in the
finalisation of the disciplinary proceedings, the applicant
was
always duty bound to prove to the first respondent, as arbitrator,
that it has a proper explanation and cause for this delay.
In
Moroenyane
v Station Commander of the South African Police Services,
Vanderbijlpark
[11]
the Court held:
‘
In
summary, I do not believe that what may be considered to be a lengthy
delay in the institution, and then conclusion, of disciplinary
proceedings, can
per se
lead to a conclusion of
unreasonableness and unfairness. A disciplinary hearing cannot be
directed to be aborted just because there
is a long delay. More is
needed. What must always be considered, in deciding whether to finish
off disciplinary proceedings because
of an undue delay, is the
following:
42.1 The
delay has to be unreasonable. In this context, firstly, the length of
the delay is important. The
longer the delay, the more likely it is
that it would be unreasonable.
42.2 The
explanation for the delay must be considered. In this respect, the
employer must provide an explanation
that can reasonably serve to
excuse the delay. A delay that is inexcusable would normally lead to
a conclusion of unreasonableness.
42.3 It
must also be considered whether the employee has taken steps in the
course of the process to assert
his or her right to a speedy process.
In other words, it would be a factor for consideration if the
employee himself or herself
stood by and did nothing.
42.4 Did
the delay cause material prejudice to the employee? Establishing the
materiality of the prejudice
includes an assessment as to what impact
the delay has on the ability of the employee to conduct a proper
case.
42.5 The
nature of the alleged offence must be taken into account. The offence
may be such that there is
a particular imperative to have it decided
on the merits. This requirement however does not mean that a very
serious offence (such
as a dishonesty offence) must be dealt with, no
matter what, just because it is so serious. What it means is that the
nature of
the offence could in itself justify a longer period of
further investigation, or a longer period in collating and preparing
proper
evidence, thus causing a delay that is understandable.
42.6 All
the above considerations must be applied, not individually, but
holistically.’
[39]
The
Constitutional Court in
Stokwe
v Member of the Executive Council, Department of Education, Eastern
Cape and Others
[12]
applied the aforesaid
dicta
in
Moroenyane
supra
.
The Court further had the following to say:
[13]
‘
This
also accords with the general principles of how delay impacts the
fairness of disciplinary proceedings. The question whether
a delay in
finalisation of disciplinary proceedings is unacceptable is a matter
that can be determined on a case-by-case basis.
There can be no hard
and fast rules. Whether the delay would impact negatively on the
fairness of disciplinary proceedings would
thus depend on the facts
of each case …’
[48]
In
casu
,
the Employee protested about the delay in instituting and finalising
the disciplinary proceedings against her. The Employee complained
that because of the delay, the Applicant was unable to provide her
with the supporting documents that accompanied the BI-24 application
form in 2008. On the objective evidence, the Employee’s
protestations are well founded. The Applicant provided no evidence
to
explain why it only escalated the matter to Chamane in 2013, despite
being made aware of the issue in 2008. In respect of the
further
delay, the Applicant attempted to attribute the delay of 2 years
(2013 – 2015) to an investigation that was conducted
by
Chamane. The explanation was that the documents were housed in some
warehouse and it took long to obtain them.
[49]
This
explanation is unconvincing. In this matter, an investigation would
have entailed obtaining the BI-24 application form and
supporting
documents, and interviewing the Employee, Ludwayi, Du Preez and
Ahrens. It is inexplicable that this process took 2
years to
finalise. A single act of misconduct relating to an irregular
registration of a child cannot reasonably take 2 years to
investigate. Worse still, the Applicant provided no explanation as to
why the Employee’s disciplinary hearing could not proceed
from
27 November 2015 (after the postponement) until the end of February
2017. This inordinate delay damaged the interests of the
administration of justice. The delay is extremely prejudicial to the
witnesses who were required, in March 2017, to testify about
an
incident that happened 9 years prior. It unsurprisingly also appears
that the supporting documents which accompanied the BI-24
application
form could not be located. This situation is clearly undesirable and
underscores the fact that disciplinary hearings
ought to be
instituted and finalised promptly without delay.
[50]
Seen
thus, the Commissioner’s conclusion that the disciplinary
hearing was procedurally not in compliance with Resolution
1 of 2003
is supported by the objective facts and, therefore, eminently
reasonable.
Costs
[51]
It
has recently been reiterated by the Constitutional Court that, in
labour matters, costs do not follow the result.
[14]
There is nothing in law or fairness which in my view warrants a
departure from this.
Order:
[52]
Accordingly,
I make the following order:
1. The
Applicant’s application to review the arbitration award issued
under case number GPBC2295/2017
dated 11 June 2019 is dismissed; and
2. there
is no order as to costs.
Doctor
Cithi
Acting
Judge of the Labour Court
Appearances:
For
the Applicant: Adv M H Mhambi
Instructed
by: The State Attorney, Pretoria.
For
the Third Respondent: Mr S Hlongwane from Mhlanga Incorporated.
[2]
Act
66 of 1995, as amended.
[3]
GN
1665 of 14 October 1996: Rules for the conduct of proceedings in the
Labour Court.
[4]
The
BI-24 form is now referred to as DH 24 form.
[5]
[2015]
1 BLLR 50
(LAC); (2015) 36 ILJ 2802 (LAC).
[6]
Ibid
at paras 31 – 32.
[7]
Throughout
this judgment, the footnotes of all extracts of other judgments are
omitted.
[8]
[2015]
1 BLLR 77
(LAC);
[2014] ZALAC 62.
[9]
[2014]
ZALAC 60
;
(2015)
36 ILJ 602 (LAC) at paras 32 and 42.
[10]
[2023] ZALCJHB 199; [2023] JOL 59866 (LC).
[11]
[2016]
JOL 36595
(LC); [2016] ZALCJHB 330 at para 42. See also
Independent
Communications Authority of South Africa v Malapane
[2022]
ZALCJHB 90;
[2022] JOL 53890
(LC) at para 33.
[12]
(2019)
40 ILJ 773 (CC) at para 72.
[13]
Ibid at para 71.
[14]
Union
for Police Security and Corrections Organisation v South African
Custodial Management (Pty) Ltd
[2021]
ZACC 41
; (2022) 43 ILJ 341 (CC).