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[2007] ZALAC 41
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Member of the Executive Council for Finance, KwaZulu-Natal and Another v Dorkin No and Another (DA16/05) [2007] ZALAC 41; (2008) 29 ILJ 1707 (LAC) (21 December 2007)
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,
Second Appellant
KwaZulu-Natal
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:
1.
wilfully or negligently mismanaging the
finances of the State;
2.
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
3.
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:
1.
wilfully or negligently mismanaging the
finances of the State;
2.
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
3.
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:
1.
wilfully or negligently mismanaging the
finances of the State;
2.
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
3.
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:
1.
wilfully or negligently mismanaging the
finances of the State;
2.
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
3.
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:
1.
wilfully or negligently mismanaging the
finances of the State;
2.
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
3.
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:
4.
wilfully or negligently mismanaging the
finances of the State;
5.
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
6.
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:
7.
wilfully or negligently mismanaging the
finances of the State;
8.
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
9.
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:
1.
abusing your authority; and
2.
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:
1.
wilfully or negligently mismanaging the
finances of the State; and/or
2.
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:
1.
wilfully or negligently mismanaging the
finances of the State;
2.
prejudicing the administration, discipline and
efficiency of the KZN Department for Education and Culture; and
3.
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:
4.
wilfully or negligently mismanaging the
finances of the State; and
5.
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:
1.
The appeal against the decision of the Labour
Court in regard to the
locus standi
of the first appellant is dismissed.
2.
The appeal against the order of the Labour Court
is upheld.
3.
There is to be no order as to costs on appeal.
4.
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
(b)
The review application is granted with no order
as to costs.
(c)
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.