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[2009] ZALAC 20
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Emalehleni Municipality v Commission for Conciliation Mediation and Arbitration and Others (JA 64/08) [2009] ZALAC 20 (1 January 2009)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case No.: JA 64/08
EMALAHLENI
MUNICIPALITY Appellant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION First Respondent
RONEL
DE WET N.O. Second Respondent
PHILLIPUS
JEREMIAS STONE Third Respondent
JUDGMENT:
DAVIS JA:
Introduction
[1] This is an appeal against an order
of Molahlehi J of 11 March 2008, in terms of which an arbitration
award issued by the second
respondent who ordered appellant to pay
twelve months compensation to third respondent, was reviewed and set
aside and substituted
with an order for the retrospective
reinstatement of the respondent.
[2] After hearing argument by counsel,
this court gave its judgment
ex tempore
. Inexplicably, the
operator of the recording machine did not inform the court that the
recording device was not operating.
Accordingly, and for this
reason, the responsibility for which has not been satisfactorily
explained by those mandated to operate
the recording device, the
entire judgment could not be transcribed. Consequently, it is
necessary for this court to reconstruct
the judgment which was so
delivered.
The facts
[3] Third respondent was employed by
appellant’s predecessor, the City Council of Witbank, from 1
May 1981 in the City’s
engineering department. At the time of
the termination of his services, third respondent held the position
of assistant city
engineer. He appeared before a disciplinary
committee, charged, inter alia, with conducting private remunerative
work without
the permission of his employer. He was found guilty
and dismissed as from the 1 March 2000.
[4] The dispute was heard by second
respondent who found that the dismissal was procedurally and
substantively unfair. She then
decided that the appropriate remedy
was to award third respondent compensation in the amount of twelve
months salary, being R181
166, 04. Third respondent then brought an
application for a review of this award in terms of section 145 of the
Labour Relations
Act 66 of 1995 (‘LRA’), pursuant to of
which he sought reinstatement. It appears that neither the
appellant nor first
nor second respondent opposed the relief and,
accordingly, Molahlehi J granted the order so sought. Appellant now
approaches
this court on appeal with the leave of the court
a quo
.
I turn to deal first with the award of second respondent.
The arbitration award
[5] First respondent was confronted
with two essential charges being:
“
1. That you are guilty of
contravening clause 10.1.1.12 of the conditions of service in that
you engaged in remunerative private
work outside of the City
Council’s service without the first requesting and receiving
the City Council’s permission.
2. That you are guilty of contravening
clause 10.1.1.5 of the conditions of service in that you conducted
yourself in a disgraceful
improper unbecoming or dishonest manner or
in such a manner that the position of trust between employer and
employee is impaired.”
[6] Appellant called four witnesses to
substantiate the charges which it had been brought against third
respondent.
[7] Read as a whole, this evidence, at
the very least, showed that third respondent admitted to receiving
‘sakkoste’
from a Mr De Lange, pursuant to plans which he
had drawn and which were later approved by him. It is also clear
from the evidence
that, whereas third respondent had once requested
permission for the performance of private remunerative work, the
permission so
granted was valid for one year. It had lapsed by the
time of the De Lange transaction.
[8] Significantly, third respondent
chose not to testify, such that the evidence generated by appellant’s
witness was never
placed in dispute. Accordingly, the evidence that
third respondent had received money from Mr de Lange and that he had
drawn
plans and then approved them in circumstances where this act
did not form part of his official duties was never placed in dispute.
[9] Second respondent was correctly
compelled to conclude: ‘in the absence of any facts in front of
me to suggest that Stone
had permission, it is found that, on a
balance of probabilities, that the Applicant had permission however
such permission expired
and was not valid at the time of the
incident’. (sic). Furthermore, second respondent was
‘satisfied that the respondent
proved the second charge as well
as one of, the sub charges of the first charge, to wit receiving R200
from De Lange.
[9] Turning to the decision to dismiss
third respondent, second respondent said:
“
It is found that the
decision respondent was not unreasonable that it shocks one senses
.”
Notwithstanding this conclusion,
second respondent went on to find that the rule regarding ‘private
work’ had not been
consistently applied by appellant and thus
the dismissal of third respondent was substantively unfair. Second
respondent also
found that there was an element of procedural
unfairness, notwithstanding that there had been no such point taken
by third respondent
at the disciplinary hearing nor at the appeal
committee hearing. The basis for this conclusion was that members
of the disciplinary
hearing were also members of the executive
council which recommended and then approved the dismissal. Further,
third respondent
was not given a copy of the disciplinary record
within the prescribed period and that the recoding machine was
defective.
Evaluation
[10] The approach adopted by second
respondent now stands to be interrogated in terms of the test set out
by the Constitutional
Court in
Sidumo v Rustenberg Platinum Mines
[2007] ZACC 22
;
2008 (2) BCLR 158
(CC):
“
Is a decision reached by the
Commission is one that a reasonable decision maker could not reach?
Applying it will give effect
not only to the constitutional right to
fair labour practices but also to the right to administrative action
which is lawful, reasonable
and procedurally fair
.” para
110
[11] In arriving at the mandated
reasonable decision, a party, such as second respondent, should,
particularly in approaching a
dismissal dispute, consider the factors
set out by Navsa AJ (as he then was) in
Sidumo
at para 78
namely, the commissioner must;
(a) take into account the totality of
the circumstances as emerges from the evidence;
(b) consider the importance of the
rule that has been breached;
(c) consider the reason the employer
imposed the sanction of
dismissal together with the employee’s
challenge to this decision;
the harm caused by the employee’s
conduct;
whether additional training or
instruction may result in the employee not repeating the misconduct;
the effect of dismissal on the
employee and his or her long service record.
Although Navsa AJ emphasised this was
not an exhaustive list, an examination of the manner in which second
respondent treated these
factors provides considerable guidance as to
whether the decision taken was a reasonable one.
[12] Cognisance should also be taken
of the
dictum
of Zondo JP in his explication of the
Sidumo
approach in
Fidelity Cash Management Service v CCMA and others
(2008) 29 ILJ 964 (LAC) at para 102:
“
In many cases the reasons
which the commissioner gives for his decision, finding or award will
play a role in the subsequent assessment
of whether or not such
decision or in the subsequent assessment of whether or not such
decision or finding is one that a reasonable
decision maker could or
could not reach. However, other reasons upon which the commissioner
did not rely to support his or her
decision or finding but which can
render the decision reasonable or unreasonable can be taken into
account. This would clearly
be the case where the commissioner
gives reasons A, B and C in his or her award but, when one looks at
the evidence and other material
that was legitimately before him or
her, one finds that there were reasons D, E and F upon which he did
not rely but could have
relied which are enough to sustain the
decision
.”
Conclusion
[13] Applying these considerations to
the approach adopted by second respondent to the present dispute, it
is apparent that the
award is manifestly at war with itself. Second
respondent concluded, as she was constrained (given that third
respondent did
not testify at all) that, on the evidence, appellant
had discharged the onus, on the probabilities, of proving the
contravention
of the charges which were so brought. She further
concluded that the decision by appellant to dismiss third respondent
did not
induce any reasonable sense of shock.
[14] It is inexplicable, having so
concluded, that second respondent, without more save for vaguely
substantiated statements that
a rule may not have been consistently
applied, could so conclude that the decision of appellant to dismiss
third respondent was
substantively unfair. There was also no
evidence to suggest that the initial disciplinary hearing or the
appeal hearing had been
conducted in a procedurally improper manner,
particularly in the light of the approach adopted by third respondent
to such hearings.
[15] Following Zondo JP in
Fidelity
,
supra,
it is also possible to consider factors which were
before second respondent but which were scarcely mentioned: in the
award third
respondent held a senior position of trust, particularly
as a result of his power to approve plans. When an employer at this
level of seniority breaches organisational rules for personal profit,
however small the profit might have been, and seeks to abuse
his
official powers and approves plans which he personally had drawn up,
this constitutes a serious form of misconduct, going to
the very
heart of the integrity of an employee who is vested with considerable
influence within the organisation.
The court
a quo’s
judgment
[16] When the applicable law is
considered together with the evidence which was placed before second
respondent, the approach adopted
by second respondent compelled a
reasonable decision maker to uphold the decision to dismiss third
respondent. Once confronted
with a decision, as unssatisfactory as
that taken by second respondent, the court
a quo
was surely
obliged to deal with the matter by setting it aside, as being an
unreasonable decision. That he did more than simply
confirm an
incorrect finding, namely the award of compensation in the sum of
R181 166, 04 representing the equivalent of twelve
months salary, but
proceeded to direct the appellant to reinstate the respondent
retrospectively to the date of his dismissal,
is manifestly
incorrect, in that it fails to apply to law as set out in paras 10 –
12 of this judgment.
[16] Having examined the evidence
together with the approach adopted thereto by second respondent, the
court
a quo
should have applied the approach as set out in
Sidumo
and found that, on the available evidence, the
dismissal was both substantive and procedurally fair.
[17] For these reasons therefore, the
following order is made:
1. The appeal is upheld.
2. The order of the court
a quo
is set aside and replaced
with the following order:
2.1 The dismissal of third respondent
was substantively and procedurally fair.
_____________
DAVIS JA
JAPPIE JA AND REVELAS AJA agreed