Highveld District Council v Commission for Conciliation Mediation and Arbitration and Others (JA02/02) [2002] ZALAC 23; (2003) 24 ILJ 517 (LAC) (4 October 2002)

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[2002] ZALAC 23
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Highveld District Council v Commission for Conciliation Mediation and Arbitration and Others (JA02/02) [2002] ZALAC 23; (2003) 24 ILJ 517 (LAC); [2002] 12 BLLR 1158 (LAC) (4 October 2002)

IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case
Number: JA02/02
In
the matter between:
HIGHVELD
DISTRICT COUNCIL Appellant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION First Respondent
RICHARD
BYRNE Second Respondent
LEON
LLOYD Third Respondent
JUDGMENT
Du
Plessis AJA
:
The third
respondent, a civil engineer, was employed by the appellant as its
Acting Director: Engineering. The employment relationship
was
governed by a collective agreement between employers’
organisations in the Local Government sector and the SA Association
of Municipal Employees. (The collective agreement)
Following
a disciplinary procedure, the appellant dismissed the third
respondent on 8 January 1998. The third respondent noted
an
internal appeal which was unsuccessful. Thereafter a dispute
concerning the fairness of the dismissal was referred to arbitration
under the auspices of the first respondent. The second respondent
was the arbitrator. It is convenient to refer to the second
respondent as “the arbitrator”. It will not be necessary to
make any further reference in this judgment to the first respondent
and I shall refer to the third respondent as “the respondent”.
In the
arbitration the respondent (who was the applicant in the
arbitration) contended that his dismissal was both procedurally
and
substantively unfair. The arbitrator held that it was procedurally
and substantively fair. As regards the substantive fairness,
he
held that the respondent was guilty of engaging in remunerative work
outside his employer’s services without first requesting
or
receiving the employer’s permission. The arbitrator also held
that the respondent wilfully acted in a way detrimental to
the
employer and/or its discipline and/or order by considering and/or
approving in his official capacity work which he did privately.
The
respondent applied to the Labour Court to review and set aside the
arbitrator’s award. He contended that the arbitrator had
erred in
not finding that his dismissal was both procedurally and
substantively unfair.
The
Labour Court upheld the arbitrator’s finding that the respondent’s
dismissal was substantively fair on the grounds set out
above. The
Court held however that the dismissal was procedurally unfair and
that the arbitrator committed a reviewable error
when he held to the
contrary. Accordingly, the Labour Court set aside the arbitrator’s
award and substituted it with an order
that the dismissal was
procedurally unfair and that the appellant pay to the respondent
compensation in an amount equivalent to
twelve months remuneration.
The appellant now appeals against the Labour Court’s judgment and
order.
There is
no cross appeal against the Labour Court’s finding that the
dismissal was substantively fair. The first issue before
us
therefore is whether the arbitrator’s finding that the dismissal
was procedurally fair should have been reviewed and set aside.
The
second issue before us is whether the Labour Court was correct when
it ordered the appellant to pay compensation to the respondent.
The
second issue will arise only if we find that the arbitrator’s
finding that the dismissal was procedurally fair must be reviewed
and set aside. I deal first with question whether the dismissal was
procedurally fair or not.
The
facts.
The
disciplinary proceedings against the respondent came about as
follows: An unidentified firm of consulting engineers complained
of
irregularities in the appellants engineering department. The
appellant’s chief executive officer instructed a firm of
attorneys,
Brandmuller-Taljaard, to investigate the matter. He also
suspended the respondent from his duties pending the investigation.

The attorneys conducted the investigation and furnished the
appellant with a comprehensive written report in which they
recommended
that a disciplinary inquiry be held in which the
respondent “must be given the opportunity to respond to” the
allegations against
him in which the attorneys found substance.
The chief
executive officer informed the respondent by letter that a
disciplinary hearing was to be held against him. Attached
to the
letter was a copy of the attorneys’ report. Documents allegedly
substantiating the charges against the respondent and
referred to in
the report were also made available to the respondent. At the
disciplinary hearing that followed the respondent,
who was then
represented by a union official, received a written charge sheet.
It is, in view of the arguments presented to us,
unnecessary to deal
with the actual proceedings in detail. Suffice it to say that
evidence was presented in the presence of the
respondent and his
representative who was afforded the opportunity to cross-examine
witnesses and to present evidence.
The
disciplinary committee found the respondent guilty of misconduct and
recommended that he be dismissed. He lodged an appeal
in terms of
the disciplinary procedure. The appeal was heard by an appeal
committee that dismissed the appeal. It is common cause
that the
chairperson of the appeal committee did not appoint a prosecutor.
The respondent was however represented at the appeal
hearing by the
same union official who was afforded a full opportunity to address
the appeal committee.
The
respondent’s contentions
The
collective agreement referred to in paragraph 1 above makes
provision for a disciplinary procedure. Clause 10.2.2.1 thereof
provides:
“
Any
accusation against an employee shall be brought in writing before the
head of department concerned or his authorised representative
by the
person making the accusation
”.
The
respondent contended before the arbitrator, before the Labour Court
and before this Court, that clause 10.2.2.1 was not complied
with in
that the disciplinary hearing originated from an anonymous complaint
which was not in writing. That, the respondent contended,
constituted a procedural unfairness.
In the
second place the respondent contended that the procedure adopted by
the appeal committee was procedurally unfair because
clause
10.2.2.9.15.3 of the collective agreement was not complied with.
The clause provides:
“
The
chairman of an appeal committee shall appoint a person who shall act
as prosecutor during the hearing and shall advise such prosecutor,
the employee charged and his trade union representative, as the case
may be, in writing, of the date, time and place of the hearing,
which
shall take place within 10 working days of the date on which the
appeal is received by the town clerk or his authorised
representative
”.
I have
pointed out that it is common cause that no prosecutor was appointed.
The
findings of the arbitrator and of the Labour Court.
The
arbitrator held that the disciplinary procedure provided for in the
collective agreement was applicable to the respondent’s
disciplinary hearing. He held however that the provisions of the
collective agreement were not breached “such as to cause (him)
..
to conclude that” the procedure was unfair.
The
Labour Court held that the collective agreement is peremptory in its
prescription of the disciplinary procedures. The procedure
followed
in the disciplinary hearing of the respondent was not in accordance
with the prescribed procedure in both the respects
set out above.
From that finding followed the Labour Court’s finding that the
respondent’s dismissal was procedurally unfair.
Consideration
of the issues
The
relevant issue referred to the arbitrator was whether the
respondent’s dismissal was procedurally fair. Put differently,
the respondent sought to vindicate his right in terms of s185 of the
Labour Relations Act, 66 of 1995 (“The Act”) not to be
unfairly
dismissed. More specifically the respondent sought to vindicate his
right in terms of section 188(1)(b) of the Act to
be dismissed only
in accordance with a fair procedure. It is a right separate and
distinct from the respondent’s contractual
rights in terms of the
collective agreement.
Where the
parties to a collective agreement or an employment contract agree to
a procedure to be followed in disciplinary proceedings,
the fact of
their agreement will ordinarily go a long way towards proving that
the procedure is fair as contemplated in s188(1)(b).
The mere fact
that a procedure is an agreed one does not however make it fair. By
the same token, the fact that an agreed procedure
was not followed
does not in itself mean that the procedure actually followed was
unfair. Mr Venter for the respondent referred
us to the arbitration
award in
Ned
v Department of Social Services & Population Development
[2001] 22 ILJ 1039 (BCA) where (at 1044B) the arbitrator said: “
The
failure to honour an obligation expressly undertaken, is per se
unfair conduct
”.
I must point out that an arbitrator’s award does not constitute
an authoritative precedent. In any event, read in its full
context,
especially in the context of what is said on page 1040 of the
report, I do not think that the arbitrator in that case
was stating
a general proposition that failure to comply with an agreed
disciplinary procedure in itself constitutes an unfair
procedure in
breach of the Act. If however Mr Venter was correct and that is
what the arbitrator said in the
Ned
case, I cannot agree. When deciding whether a particular procedure
was fair, the tribunal judging the fairness must scrutinize
the
procedure actually followed. It must decide whether in all the
circumstances the procedure was fair. (
Leonard
Dingler (Pty) Ltd v Ngwenya
[1999] 20 ILJ 1711 (LAC)
It does
not follow from this conclusion that a contractual procedure does
not give rise to contractual rights that a contracting
party can
enforce in the appropriate forum and in the appropriate manner. In
this case however we are not called upon to adjudicate
a contractual
right, but a statutory right to a dismissal that is procedurally
fair.
I assume
without finding that the appellant did not comply with the
provisions of clause 10.2.2.1. The respondent was nevertheless
fully informed of all the allegations against him before the
disciplinary hearing commenced. Mr Venter submitted that the
respondent
was disadvantaged because he did not know the identity of
the initial complainant. The respondent could, so it was argued,
have
called the complainant to testify had he known the identity of
the person. Knowledge of the identity of the complainant would,
the
argument continued, also have enabled the respondent better to
investigate the nature of the complaint and to better prepare
his
defence. The argument has no substance. The respondent was
confronted with all the evidence against him during the disciplinary
hearing and he had ample opportunity to dispute every piece of
evidence that was put before the disciplinary committee. It is
on
that evidence that he was, correctly as it turned out, found guilty
of misconduct. The arbitrator correctly had regard to the
procedure
actually followed and concluded that it was fair. There is no basis
for holding that in doing that he committed a reviewable
error.
The fact
that the chairperson of the appeal committee did not appoint a
prosecutor had, as far as the respondent is concerned, no
bearing on
the fairness of the appeal proceedings. The appeal was heard on the
record of the disciplinary hearing and the respondent’s
representative had a full opportunity, without a prosecutor to
oppose him, to make submissions and argue the respondent’s case.
In the
result it is concluded that the Labour Court erred in holding that
the arbitrator’s award should be set aside on any of
the bases
provided for in section 145 of the Act.
The
parties were agreed that costs should follow the event.
In
the result the following order is made:
1 The
order of the Labour Court is set aside and the following order is
made in its stead:
“
The
application for review is dismissed with costs”
2 The
third respondent is ordered to pay the appellant’s costs in the
appeal.
B.R. du
Plessis
Acting
Judge of the Labour Appeal Court.
I agree.
R.M.M.
Zondo
Judge
President of the Labour Appeal Court
I
agree.
D.M.
Davis
Acting
Judge of the Labour Appeal Court.
Date
of hearing: 21 August 2002
Date
of Judgment: 4 October 2002
For
appellant: Mr A.P. Brandmuller
Instructed by:
Brandmuller-Taljaard
For
Respondent: Adv Venter
Instructed by: Van
Deventer & Campher