About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2007
>>
[2007] ZALAC 34
|
|
MEC for Finance: Kwazulu-Natal and Another v Dorkin NO and Another (DA16/05) [2007] ZALAC 34; [2008] 6 BLLR 540 (LAC) (21 December 2007)
1
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: DA16/05
In the matter between
The Member of the Executive
.................................................
First
Appellant
Council for Finance, KwaZulu
Natal
1
The MEC for Education,
KwaZulu-Natal
.......................................................................
Second
Appellant
And
Wentworth Dorkin N.O.
............................................................
1st
respondent
Hamilton Ntshangase
...............................................................
2
nd
respondent
JUDGMENT
ZONDO JP
[1] This is an appeal from a judgment given by the
Labour Court, through Francis J, in a review application that was
brought by
the appellants against the respondents to have a certain
decision taken by the first respondent reviewed and set aside. The
first
appellant is the Member of the Executive Council responsible
for Finance in KwaZulu-Natal. The second appellant is the Member of
the Executive Council responsible for education in KwaZulu-Natal. The
first respondent is employed in the Department of Education,
KwaZulu-Natal, as Chief Director in the Empangeni Region,
KwaZulu-Natal. The second respondent is employed as a Director: Arts
in the Department of Education in KwaZulu-Natal.
[2] The decision which the appellants sought to have
reviewed and set aside by the Labour Court was a decision that the
first respondent,
in his capacity as the chairperson of a
disciplinary inquiry into certain allegations of misconduct made
against the second respondent,
took to give the second respondent a
final written warning as a sanction after he had found him guilty of
several allegations of
misconduct. It was because the appellants were
aggrieved by the imposition of only a final written warning as a
sanction on the
second respondent that they brought an application to
have that decision reviewed and set aside by the Labour Court. The
Labour
Court held that the first appellant did not have locus standi
to bring the review application. It dismissed the review application.
[3] The allegations of misconduct with which the second
respondent was charged in the disciplinary inquiry that the first
respondent
chaired were in effect the following:
“
1.
Charge
no 1: that during or about 1997 you secured the secondment or
temporary transfer of a Mr Sandile Herbert Makhanya, an educator,
to
the Directorate under his control without the permission of Mr
Makhanya’s Head of Department
Charge no 2: It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), read
with the provisions of the Code of Conduct for the
Public Service (R. 825 of 10/6/1997), and the provisions of Chapter B
and C
of the Public Service Staff Code, in that you during or about
the beginning of 1998 allocated bursaries in the amounts set out in
column 2 of Schedule A attached hereto, to the persons whose names
and student numbers appear in column 1 of the said schedule,
to study
at the Tertiary Institutions referred to in column 3 of the said
schedule, without the authority to do so, without any
budgetary
provision for such expenditure, and in conflict with the requirements
of the business plan of the KwaZulu-Natal Community
College Project,
thereby:
wilfully or negligently mismanaging the finances of
the State;
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
performing poorly or inadequately for reasons other
than incapacity.
Charge No 3 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to the Public Service Coordinating Bargaining Council),
read
with the provisions of the Code of conduct for the Public
Service (R. 825 of 10/6/1997), and the provisions of Chapter B and C
of the Public Service Staff Code, in that you during or about the
beginning of 1998 allocated bursaries in the amounts set out in
column 2 of Schedule A attached hereto, to the persons whose names
and student numbers appear in column 1 of the said schedule,
to study
at the Tertiary Institutions referred to in column 3 of the said
schedule, contrary to the approved Departmental procedures
regarding
the allocation of bursaries, and without the prescribed agreement
being concluded between the successful applicants and
the Department;
Thereby:
wilfully or negligently mismanaging the finances of
the State;
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
performing poorly or inadequately for reasons other
than incapacity.
Charge No. 4 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), read
with the provisions of the Code of Conduct for the
Public Service (R825 of 10/6/1997), and the provisions of Chapter B
and C of
the Public Service Staff Code, in that you during or about
the beginning of 1998 allocated bursaries in the amounts set out in
column 2 of Schedule B attached hereto, to the persons whose names
and student numbers appear in column 1 of the said schedule,
notwithstanding their failure to submit applications in the
prescribed form, or at all,
thereby:
wilfully or negligently mismanaging the finances of
the State;
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
performing poorly or inadequately for reasons other
than incapacity.
Charge No 5 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), read
with the provisions of the Code of Conduct for the
Public Service (R825 of 10/6/1997), and the provisions of Chapter B
and C of
the Public Service Staff Code, in that you during or about
the beginning of 1998 allocated bursaries to the persons whose names
and student numbers appear in column 2 of Schedule C attached hereto,
to enable them to pursue studies reflected in column 1 of
the said
schedule, notwithstanding the fact that the said courses are not
approved fields of study for the allocation of bursaries
by the
Department,
thereby:
wilfully or negligently mismanaging the finances of
the State;
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
performing poorly or inadequately for reasons other
than incapacity.
Charge No 6 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), read
with the provisions of the Code of Conduct for the
Public Service (R825 of 10/6/1997), and the provisions of Chapter B
and C of
the Public Service Staff Code, in that you during or about
the beginning of 1998 allocated bursaries to the persons whose names
and student numbers appear in column 1 of Schedule D attached hereto,
for the amount reflected in column 1 of the said schedule,
to study
at the Tertiary Institutions reflected in column 3 of the said
schedule, notwithstanding the fact that the said amounts
exceed the
Department’s prescribed maximum amount of R10 000,00 per annum,
applicable at the time,
thereby:
wilfully or negligently mismanaging the finances of
the State;
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
performing poorly or inadequately for reasons other
than incapacity.
Charge No 7 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), read
with the provisions of the Code of Conduct for the
Public Service (R825 of 10/6/1997), and the provisions of Chapter B
and C of
the Public Service Staff Code, in that you during or about
the beginning of 1998 allocated bursaries to the persons whose names
and student numbers appear in column 1 of Schedule E attached hereto,
and whose relationship with you are reflected in column 2
of the said
schedule, to study in the field of study set out in column 3 of the
said schedule, notwithstanding the fact that the
said person are
relatives, thus failing to put the public interest first in the
execution of your duties, favouring relatives in
the allocation of
bursaries when they are not entitled to such bursaries; and utilising
your official position to obtain potential
private benefits for
yourself during the performance of your duties, without declaring
your interest to the Department,
thereby:
wilfully or negligently mismanaging the finances of
the State;
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
performing poorly or inadequately for reasons other
than incapacity.
Charge No 8 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), read
with the provisions of the Code of Conduct for the
Public Service (R825 of 10/6/1997), and the provisions of Chapter B
and C of
the Public Service Staff Code, in that you during or about
the beginning of 1998 allocated bursaries to the persons whose names
and student numbers appear in column 1 of Schedule F attached hereto,
whose parent’s name and Persal numbers (where applicable
and
available) are reflected in column 2 of the said schedule, with the
particulars of the parents’ employment reflected
in column 3 of
the said schedule, to the field of study set out in column 4 of the
said schedule notwithstanding the fact that
the said persons are
dependents of state employees, thus failing to put the public
interest first in the execution of your duties,
favouring associates,
friends and/or work colleagues in the allocation of bursaries when
they are not entitled to such bursaries;
and utilising your official
position to obtain potential private benefits for yourself during the
performance of your duties, without
declaring your interest to the
Department,
thereby:
wilfully or negligently mismanaging the finances of
the State;
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
performing poorly or inadequately for reasons other
than incapacity.
Charge No 9 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), read
with the provisions of the Code of Conduct for the
Public Service (R825 of 10/6/1997), and section 9 of the Public
Service Act,
1994 (Proclamation 104 of 1994), in that you during or
about April 1998 employed Mr. M J Mazibuko and Ms. Gugu Mzuwini
without
the required authority to do so, without following the
prescribed procedures, and/or selecting for appointment persons who
were
your friends, associates and/relatives,
thereby:
abusing your authority; and
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture.
Charge No 10 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), in
that between March and April 1998 procured goods,
alternatively ensured and/or authorised the procurement of goods as
reflected
in column 1 and 2 of Schedule G attached hereto, at the
prices reflected in column 3 of the said schedule, to the value of R
524
610,30, ostensibly in accordance with a business plan known as
the KwaZulu-Natal Community College Project dated 9 December 1995,
without ascertaining that the goods purchased were necessary for the
implementation of the said business plan, that proper arrangements
were made for the receipt of the goods and the storage thereof on
state premises; that a record was prepared to the goods received
indicating the place or places they were stored, and that the goods
were recorded in the state asset register,
thereby:
wilfully or negligently mismanaging the finances of
the State; and/or
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture;
Charge No 11 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), in
that you between March and April 1998 failed to take
adequate steps to ensure that state assets under your control, as set
out
in columns 1 and 2 of Schedule H attached hereto, acquired for
the amounts set out in column 3 of the said schedule, were properly
secured,
thereby:
wilfully or negligently mismanaging the finances of
the State;
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
causing a loss to the Department in the amount of R
208 683,10, as the equipment, as a result of your actions, is no
longer in
the possession of the Department, and/or cannot be traced.
Charge No 12 It is alleged that you committed an act
of misconduct by contravening the provisions of the Disciplinary Code
and Procedures
for the Public Service (contained in Resolution 2 of
1999, agreed to in the Public Service Coordinating Bargaining
Council), in
that you during or about 1998 removed state assets
reflected in column 1 of Schedule I attached hereto, purchased for
amounts reflected
in column 2 of the said Schedule, without the
permission of the employer and kept them under your control either at
your house
at BB 984 Umlazi, and/or at places unknown to the
employer,
thereby:
wilfully or negligently mismanaging the finances of
the State; and
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture.”
[4] In the disciplinary enquiry witnesses were called
who gave evidence in support of the allegations against the second
respondent.
His representative in the disciplinary inquiry
cross-examined the witnesses. The second respondent also gave his own
evidence to
defend himself against the charges. It would seem that
the second respondent did not call any witnesses to testify on his
behalf.
He was also cross-examined.
[5] The first respondent evaluated the evidence given in
the disciplinary inquiry and found the second respondent guilty of
all
the allegations with which he had been charged. He found him
guilty “
as charged
.” Charge 6 related to the fact
that, whereas the maximum amount of a bursary that was authorised for
the Department to give
to certain students was R 10 000,00, the
second respondent had given certain students bursaries of more than R
10 000,00 each.
The names of the students were listed in Schedule D
to the “
charge sheet
.” There were 39 students to
whom he had given bursaries which fell under charge 6. Fourteen of
such students had been awarded
bursaries of R 20 000,00 or more each.
That alone totals just under R 300 000,00. Charge 10 included an
allegation that the second
respondent had mismanaged the Education
Department’s finances by purchasing goods to the value of R 524
610, 30 without ascertaining
that such goods were necessary for the
implementation of a certain business plan. Charge 11 included an
allegation that, as result
of the second respondent’s failure
to take adequate steps to ensure that certain state assets under his
control were properly
secured, the State had lost R 208 683,10 as the
value of such State assets as such assets could no longer be traced.
When regard
is had to the amounts relating to other charges which the
second respondent was found guilty of mismanaging it seems to me that
one is talking of a figure that is not less than R 500 000,00 a
substantial portion of which represented a loss to the Department.
An
amount of more than R 1 million had been awarded to students as
bursaries when no authority had been given for the awarding
of such
bursaries. In fact in par 21 of the founding affidavit in this case
it is inter alia stated that in this case the second
respondent
caused the Department a loss of more than R 1,2 million and was found
guilty of nepotism and abuse of power. In his
answering affidavit the
second respondent did not dispute any of this. Elsewhere in his
affidavit he specifically admitted having
caused the Department a
loss of more than R 200 000,00.
[6] In my view there can be no doubt that an employee
who is found guilty of the number of allegations of which the second
respondent
was found guilty when such allegations are of the serious
nature of which the allegations against the second respondent were,
should
be dismissed. I can see no basis which would, generally
speaking, save such employee from dismissal. Of course, every case
would
have to be decided on its own merits. There is nothing that the
second respondent said in the disciplinary inquiry or in the
answering
affidavit which, in my view, a lesser sanction than
dismissal.
[7] The first respondent was required to hold the
disciplinary inquiry in accordance with the Disciplinary Code and
Procedure contained
in the Public Service Co-Ordinating Bargaining
Council Resolution No. 2 of 1999. The second respondent stated that
he did not challenge
the findings of the chairman of the disciplinary
inquiry. The basis of his opposition to the review application was
that the Court
a quo did not have jurisdiction to entertain the
review application, that the appellants had no right to challenge the
decision
of the chairperson of the inquiry, that the chairman of the
inquiry had powers to impose the sanction that he imposed and that,
in imposing it, he had considered all the relevant facts including
the fact that the second respondent had 21 years of service
at the
time. He also contended that in imposing the sanction of a final
written warning, the second respondent was exercising a
discretion
and there was no basis upon which it would be justified to interfere
with the manner in which he had exercised his discretion.
[8] The first question to decide is whether or not the
first appellant had
locus standi
to bring this application.
The second respondent took the point that the first appellant had no
locus standi.
Mr Shabalala, who deposed to an affidavit
purportedly on behalf of the first appellant, stated that the basis
for the first appellant’s
locus standi
was that, as the
Member of the Executive Council responsible for finance, he had the
responsibility of allocating money made available
by the central
government to various provincial departments and that, where losses
had been caused to departments, he was the one
who was required to
“
find
” the funds. Mr Shabalala also said that as
the person in charge of the province’s budget, the MEC for
finance - that
is the first appellant - has “
a substantial
interest in ensuring that the proper sanction is imposed on a
provincial employee who has caused loss to provincial
coffers
.”
[9] In law there is nothing in what Mr Shabalala said in
his affidavit that gives the first appellant
locus standi
to
bring a review application to Court with regard to what sanction
should be imposed by a government department other than his
own
department when an employee of that department has been found guilty
of misconduct even if some misconduct relates to the management
of
the finances of that department. How discipline is maintained in a
department falling under another Member of the Executive
Council in
the Provincial Government is not his business but it is the business
of the Member of the Executive Council responsible
for that
Department. The first appellant can approach the Premier of the
Province and raise his concerns with him if he believes
that another
Member of the Executive Council is failing to maintain proper
discipline in his or her department and he feels that
such failure
has a negative impact on the provincial government or on the
province’s budget. He cannot institute court proceedings
in
regard to such matter. In fact I wonder whether the member of the
Executive Council for Finance was ever made aware that Court
proceedings were instituted in his name for the purpose of achieving
a certain disciplinary sanction against a certain employee
falling
under the department of another Member of the Executive Council. I
have serious doubts about this and no affidavit from
the Member of
the Executive Council for Finance was filed in Court in this regard.
Accordingly, the Court a quo was right in holding
that the first
appellant had no
locus standi
in this matter.
[10] The next issue to be decided is whether or not the
second appellant had a right to bring a review application to set
aside
a sanction imposed by the first respondent pursuant to a
disciplinary inquiry. In the founding affidavit it is contended that
the
conduct of a disciplinary inquiry and the resultant decision on
sanction in the circumstances in which the first respondent in this
case did constitute an administrative action. The second respondent
disputed this. The first respondent was employed by the State
at the
relevant time. It is not clear whether, in making the decision that
he made, he was performing a function on behalf of the
employer or
whether he was performing such function as an independent tribunal.
However, in the view I take of this matter, this
does not make much
difference. In
Sidumo & Another v Rustenburg Platinum, case
no: CCT 85/06
as yet unreported, which was handed down on the 5
th
October 2007, the Constitutional Court had to decide whether, when a
CCMA commissioner conducts arbitration proceedings under the
compulsory arbitration provisions of the Labour Relations Act, 1995
(Act 66 of 1995) (“
the Act
”) to resolve a
dismissal dispute, that constitutes an administrative action. It held
that such action does constitute administrative
action. It seems to
me that, if the conduct of compulsory arbitrations relating to
dismissal disputes under the Act constitutes
administrative action,
then the conduct of disciplinary hearings in the workplace where the
employer is the State constitutes,
without any doubt, administrative
action. If it constitutes administrative action, then it is required
to be lawful, reasonable
and procedurally fair. Accordingly, if it
can be shown not to be reasonable, it can be reviewed and set aside.
[11] On whether or not the second appellant had
locus
standi
to bring a review application to set aside the sanction
imposed by the first respondent, I am persuaded on the basis of the
decisions
in
Perskor Retirement Fund v Financial Services Board
2003(6) SA 38 (SCA)
and
Pharmaceutical Manufacturers
Association of SA and Another
in re
:
Ex Parte President
of the Republic of South Africa & others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
that the second appellant had
locus standi
to approach the
Court in the circumstances of this case. It does not appear to me
that any elaboration is required on this. A reading
of those two
decisions reveals, in my view, quite clearly that the second
respondent in this case would also have the requisite
locus
standi
.
[12] The question whether or not the second appellant
had locus standi to bring the review application that it brought in
the Labour
Court in this case was also linked to the question whether
it had a right to in effect challenge the decision of the first
respondent
when the first respondent had been appointed by the
Department of Education to chair the disciplinary inquiry. It would
seem that
the first respondent had been appointed by the then
Superintendent-General of the Department of Education, KwaZulu-Natal,
to chair
the disciplinary inquiry.
[13] The fact that the first respondent had not been
appointed by the second appellant but by someone else in the
Department –
albeit the Superintendent-General –has the
effect, in my view, of diluting, if not destroying, the point that
the second
appellant had no right to in effect challenge the first
respondent’s decision. Indeed, it is arguable that that fact
renders
the argument inapplicable. Even if one were to say that,
generally speaking, the second appellant does not have that right,
one
would be forced to say that does not become a remedy that is
resorted to lightly. In
BMW (SA)(Pty) Ltd v Van der Walt (2000) 21
ILJ 113 (LAC)
the majority held that an employer has a right to
subject an employee to a second disciplinary inquiry on the same
issue in respect
of which he has already been found guilty and has
had a sanction imposed upon him when “it is, in all the
circumstances,
fair to do so.” (see BMW (SA) Pty Ltd v Van der
Walt at 117 G-H, par 12) but in the last sentence of the same
paragraph it
was stated that “(i)t would probably not be
considered to be fair to hold more than one disciplinary enquiry save
in exceptional
circumstances” that cannot be absolute as there
may be exceptional circumstances in which every reasonable person
would agree
that senior authorities in an organisation, particularly
a government department, must be able to intervene to reverse a
decision
on sanction reached by a chairman of a disciplinary inquiry
who has been appointed by them. A good example in this regard is
whether
the decision reached by the chairman of the inquiry has been
induced by corruption. In the public interest this had to be so.
However,
the Courts will have to constantly endeavour to ensure that
the right of senior authorities in such an organisation to reverse or
approach a court to reverse such a decision on sanction .
[13] In the BMW case the employer sought to achieve a
result which the first disciplinary inquiry did not give him and,
therefore,
decided to subject the employee to a second disciplinary
inquiry. In this case the second appellant seeks to achieve a result
which
the disciplinary inquiry chaired by the first respondent did
not give him. In the BMW case the employer resorted to instituting
a
second disciplinary inquiry against the employee. In this case the
employer resorted to instituting court proceedings to achieve
that
result.
[14] The decision of the majority in the BMW case
sanctioned a second disciplinary as a way for an employer to achieve
that if,
in all the circumstances, it is fair to do so and it
expressed the view that it would probably be unfair to subject an
employee
to a second disciplinary hearing except in exceptional
circumstances. In the light of that decision it would be consistent
with
that decision to hold in this case that this case presented
exceptional circumstances and the second appellant had a right to
approach
the Labour Court to seek to alter the decision on sanction
made by the first respondent.
[15] In any event, contrary to what the Labour Court
held this is not a case where the first respondent’s powers
were limited
to making a recommendation about what the sanction
should be. If one has regard to the provisions of PSCBC Resolution
NO2 of 1999
which governed the powers of, and the procedure by which
the first respondent was bound, one can only conclude that the first
respondent’s
power was to make the decision on sanction
recommendation. In this regard clause 7.4 (a) of Resolution No 2
reads as follows:
“
If the chair finds an
employee has committed misconduct, the chair must pronounce a
sanction, depending on the nature of the case
and the seriousness of
the misconduct, the employee’s previous record and any
mitigating or aggravating circumstances”
The rest of clause 7.4.a is to the effect that sanctions
consist of among others “
dismissal
.” Clause
17.4.(c) and 8.7. make it clear that, if there is no appeal, the
employer is required to implement the decision
of the chairman of the
disciplinary inquiry. If there is an appeal, the employer is required
not to implement such decision but,
in that case, must implement the
decision of the “
appeal authority
.”
[16] The Labour Court expressed the view that it is not
in the public interest to allow the State as an employer to bring
applications
to review its own decisions. I take a different view. I
am of the opinion that, particularly in the case of an employer who
is
part of the State and therefore uses tax-payers money there are
cases where such an employer is, and must be able, to approach a
court of law to have its own decisions reviewed and set aside. I note
that the Labour Court did not consider the Pharmaceutical
case of the
Constitutional Court referred to above which is a good example,
albeit outside of the employment law field. However,
if such
circumstances can arise outside the employment law field, why can
they not arise in the labour law field? If and when they
do arise,
why should the State as employer not be able to approach the Labour
Court or any court of competent jurisdiction for
a review? I cannot
think of any reason why not. The Labour Court expressed the view that
the only remedy for the State as employer
in such a case is “not
to accept the recommendation of the first respondent …”.
As I have said the first respondent’s
decision was not a
recommendation. It was a decision which the State as employer was
bound to implement in terms of Resolution
No 2 unless it got it set
aside.
[17] In the BMW case this Court, in the majority
judgment, held that, where there are exceptional circumstances, an
employer is
entitled to seek to change a decision of a disciplinary
inquiry. In my view, if one has regard to the multiplicity of the
charges
of misconduct of which the second respondent was found
guilty, their seriousness and the amount of financial loss that the
second
respondent caused the Department of Education, this was a case
in which it was justifiable for the employer to take steps aimed
at
changing the sanction imposed by the first respondent. Counsel for
the second respondent conceded that there are cases in which
it would
be justified for the employer to seek to have the decision of the
disciplinary inquiry changed. He submitted, however,
that this was
not one of those. As stated already, in my view if there are such
cases, this is definitely one of them.
[18] With regard to the second respondent’s
contention that the first respondent exercised a discretion in
imposing the sanction
of a final written warning, I am of the opinion
that the first respondent’s conclusion that this was a case in
which dismissal
was not the appropriate sanction and that a final
written warning was is a conclusion that could only be reached by
someone who
did not exercise any discretion at all or who simply
acted arbitrarily and did not apply his mind at all. To the extent
that his
decision constitutes an administrative action, I have no
hesitation in concluding that his is a decision that no reasonable
person
could reach on the facts of this case and his decision is not
just unreasonable but is, without any doubt, grossly unreasonable.
The facts that the second respondent had 21 years of service and that
he had a clean record cannot mean that on the facts of this
case the
sanction of dismissal would not be appropriate. There is a limit to
which an employee’s long service period and
clean record can
save such employee from dismissal when he is guilty of misconduct.
[19] With regard to costs I have been tempted to award
costs against the second respondent because the second appellant has
had
to come to court to seek to alter the sanction imposed upon the
second respondent but, I think that, having obtained a sanction
of
final written warning which was not his decision but that of the
first respondent – he was entitled to come to Court and
seek to
defend it. Indeed, he was successful in the Court below. The rule of
practice that costs follow the result does not govern
the making of
orders of costs in this Court. The relevant statutory provision is to
the effect that orders of costs in this Court
are to be made in
accordance with the requirements of the law and fairness. And the
norm ought to be that cost orders are not made
unless those
requirements are met. In making decisions on cost orders this Court
should seek to strike a fair balance between on
the one hand, not
unduly discouraging workers, employers, unions and employers’
organisations from approaching the Labour
Court and this Court to
have their disputes dealt with, and, on the other, allowing those
parties to bring to the Labour Court
and this Court frivolous cases
that should not be brought to Court. That is a balance that is not
always easy to strike but, if
the Court is to err, it should err on
the side of not discouraging parties to approach these Courts with
their disputes. In that
way these Courts will contribute to those
parties not resorting to industrial action on disputes that should
properly be referred
to either arbitral bodies for arbitration or to
the Courts for adjudication.
[20] In this case the second respondent will lose his
job and he has had to defend the decision taken by the first
respondent and
even engaged Senior Counsel to defend such decision.
Unless there is a trade union behind which will foot his legal bill,
he stands
to spend a lot of money on legal fees. In all of the
circumstances I am of the view that the requirements of the law and
fairness
dictate that no order should be made as to costs on appeal
and none should have been made in the Court below.
[21] In the result I make the following order:
The appeal against the decision of the Labour Court in
regard to the
locus standi
of the first appellant is
dismissed.
The appeal against the order of the Labour Court is
upheld.
There is to be no order as to costs on appeal.
The order of the Labour Court is set aside and, for it,
the following order is substituted:-
“
(a) the first applicant has
no
locus
standi
in
this matter
The review application is granted with no order as
to costs.
The disciplinary sanction imposed by the first
respondent on the second respondent is hereby set aside and
replaced with the
following sanction:
(i) The appropriate sanction is dismissal with
immediate effect.”
Zondo JP
I agree.
Pillay AJA
I agree.
Kruger AJA
Appearances
For the Appellant : Adv. MJD Wallis SC (with Adv.
MG De Klerk).
Instructed by : Feisal Abraham Attorneys
For the Respondent : Adv KJ Kemp SC
Instructed by : Deneys Reitz Attorneys
Date of judgment : 21 December 2007
1
I
have added KwaZulu Natal to show which province is referred to.