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[2015] ZALAC 39
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Gauteng Department of Education v Saunders; In re: Saunders v Gauteng Department of Education and Others (JA 108/13) [2015] ZALAC 39; [2015] 12 BLLR 1187 (LAC) (9 September 2015)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case
no: JA 108/13
DATE:
09 SEPTEMBER 2015
Not
R
eportable
In
the matter between:
GAUTENG
DEPARTMENT OF
EDUCATION
....................................................................
Appellant
And
BRENT
SAUNDERS
.............................................................................................................
Respondent
I
n
re
:
BRENT
SAUNDERS
.................................................................................................................
Applicant
And
GAUTENG
DEPARTMENT OF
EDUCATION
........................................................
First
Respondent
EDUCATION
LABOUR RELATIONS
COUNCIL
..............................................
Second
Respondent
N
CAWE,
N.O
..............................................................................................................
Third
Respondent
Heard:
03 March 2015
Delivered:
09 September 2015
Summary: Enforcement of arbitration award in terms of s158(1)(c)
of the LRA – arbitrator issuing award in favour of employee
–
employer seeking review of arbitration award – incomplete
record filed and parties in disagreement in fixing date
for the
reconstruction – employee seeking making arbitration award an
order of court – employer contending that enforcement
of award
impracticable due to pending review application – Labour
Court exercising discretion in making award an order
of court –
discretion should be exercised judicially taking into account all
material facts- employer prejudiced by award
made an order of court –
Labour Court not taking into account employer’s effort in the
reconstruction of the record
– appeal upheld with costs.
CORAM:
Waglay JP, Landman JA, and Mngqibisa-Thusi AJA
JUDGMENT
MNGQIBISA-THUSI
AJA
[1]
This is an appeal against the judgment and
order of Bruinders AJ in the Labour Court handed down on 21 October
2013. In terms of
the order, the arbitration award made by Ms N Cawe,
under the auspices of the
Education Labour
Relations Council (“ELRC”), was made
an
order of Court in terms of s158(1)(c) of the Labour Relations Act 66
of 1995 (“the Act”). On 19 February 2014, this
Court
granted the appellant leave to appeal on petition.
[2]
The appellant further seeks condonation for
the late filing of the Notice of Appeal. With regard to condonation,
there is no reason
to refuse the application as it is unopposed and
there is no reason to suppose that the respondent will be prejudiced
if the application
is granted.
Factual background
[3]
The respondent was employed as a Deputy
Principal at Parktown Boys High. During February 2011, four learners
from the school had,
without authority, driven the school’s
golf cart (“the cart”) and in the process damaged it. The
school had acquired
the second–hand cart through a donation of
R 15 000.00 made by a parent, a certain Mr E Hayward. The respondent
also contributed
an amount of R 3 000.00 towards the acquisition and
branding of the cart. As a result of the damage to the cart, the
respondent
laid a criminal charge against the learners at the
Parkview Police Station. Several meetings were held between the
respondent,
the parents of the learners and the police officer
investigating the matter. It appears during the meetings that the
respondent
falsely represented to the parents and the police officer
that the cart was his, whereas in fact it belonged to the school.
Furthermore
and in order to avoid the learners being prosecuted
and/or possibly having a criminal record, the parents of the learners
agreed
to compensate the respondent. A quotation was sourced and the
parents agreed to jointly pay an amount of R 38 000.00 as
compensation.
The respondent gave the parents his personal bank
account into which the money should be deposited. The reason given by
the respondent
to the parents for the money being deposited into his
personal bank account was that he owned the cart and that he had
already
expended his personal funds to replace the damaged cart.
[4]
By the time the learners’ parents
deposited the R 38 000.00 into the respondent’s bank account,
the respondent had already
acquired a new golf cart for R 59 000.00
which he branded with the school’s logo and entered into the
school’s asset
register.
[5]
When Mr Hayward learned about the
misrepresentation made by the respondent pertaining to the ownership
of the cart, he wrote a letter
to the respondent querying his claim
of ownership of the cart. Thus the school, including the school’s
governing body (“the
SGB”), became aware of the
respondent’s ownership claim of the cart and that he had
directed that the money for the
replacement of the cart be deposited
into his account.
[6]
The SGB sold the cart at a loss for R 47
000.00. The SGB reimbursed the parents of the learners collectively
with the amount of
R 38 000.00 they had deposited into the
respondent’s bank account and gave the respondent R 9 000.00
from the proceeds of
the sale of the cart. Because of this, the
respondent lost R 12 000.00 of the money he expended in the
acquisition of the new cart.
[7]
The school instituted disciplinary
proceedings against the four learners and the respondent.
[8]
The
charge against the respondent reads as follows:
‘
It is
alleged that you committed an act of dishonesty in that you received
an amount of R 38, 000.00 from the parents of Mzwakhe
Mthethwa,
Kabelo Mothibeli, Kopano Makgalemele and Sifiso Yende for the golf
cart belonging to Parktown Boys High School damaged
by the said
learners in that you convinced the parents that the golf cart
belonged to you and not the school.
In view of your actions you are
thus charged with misconduct in terms of
section 18
(1) (ee) of the
Employment of Educators Act, 77 of 1998
as amended.’
[9]
Section 18(1)(ee)
of the Employment of
Educator’s Act (“the Educator’s Act”)
provides that:
‘
Misconduct
refers to a breakdown in the employment relationship and an educator
commits misconduct if s/he commits an act of dishonesty.’
[10]
At the disciplinary hearing and after the
respondent pleaded guilty to the charge, the chairperson imposed a
sanction of dismissal.
The chairperson based the appropriateness of
the sanction on s(1)(ee) read with
s18(5)
[1]
of the appellant’s Disciplinary Code which gives the
chairperson a discretion of imposing dismissal, amongst other
alternative
types of sanction, in the event of dishonesty.
[11]
An internal appeal body dismissed the
respondent’s appeal against the chairperson’s decision to
dismiss him.
[12]
The school also reported the respondent to
the South African Council of Educators (“SACE”), which in
turn imposed a
fine of R 12 000.00 on the respondent, and suspended
his teacher’s certificate for five years.
[13]
The respondent referred an unfair dismissal
dispute to the
ELRC
.
When conciliation failed, the matter was referred to arbitration. On
24 July 2012, the arbitrator issued an award in terms of
which she
found that the respondent’s dismissal was substantively unfair
on the ground that it was too harsh under the circumstances.
The
arbitrator ordered reinstatement of the respondent with effect from 1
August 2012 without loss of any benefits. Furthermore,
the
arbitrator’s award provided that the respondent should forfeit
three months’ salary as he had been found to be
dishonest. The
appellant was ordered to pay the respondent R 66 999.00 as back pay
within six months of the order. In her award,
the arbitrator
concluded that the respondent was dishonest in claiming ownership of
the cart, but found that the respondent’s
false representation,
which did not benefit him personally, was in itself not sufficient to
warrant a dismissal. The arbitrator
also concluded that the appellant
had not provided any evidence during the hearing that because of the
respondent’s dishonesty,
the trust relationship between it and
the respondent had broken down. In deciding to reinstate the
respondent, the arbitrator took
into account the respondent’s
long service with the appellant and a positive testimonial handed in
by the respondent’s
colleagues from Parktown Boys.
Labour Court
[14]
On 01 August 2012, the appellant sent a
letter to the respondent’s attorneys alerting them to the fact
that it intended reviewing
the arbitration award. However, after the
respondent was unsuccessful in having the award certified and on 10
August 2012, the
respondent launched an urgent application in the
Labour Court for an order under the provisions of
s158(1)(c)
[2]
of the Act, seeking to make the arbitrator’s award an order of
court. The purpose of making an arbitration award an order
of court
is so that the arbitration award may be enforced. On 15 August 2012,
the appellant filed papers for a stay of the application
in terms of
section 158(1)(c), pending the finalisation of the review application
and also filed its review application. The grounds
for reviewing the
arbitrator’s award were the following: (i) that the arbitrator
misconceived her duties as an arbitrator
in that she dealt with the
arbitration as a judicial review rather than a hearing
de
novo
; (ii) that the arbitrator ignored
material facts; and (iii) that the reinstatement of the respondent
together with three months
back pay is reviewable.
[15]
By agreement between the parties, both
applications were postponed
sine die
pending the filing by the appellant of an application to review and
set aside the arbitration award. Costs were reserved. The parties
further agreed that the appellant would file the record of the
arbitration proceedings (“the record”) on or before
21
June 2013.
[3]
On 21 June 2013, the respondent filed an incomplete record. It is
common cause that in view of the incomplete record, the parties
were
in negotiations pertaining to the reconstruction of the record but
could not agree on dates.
[4]
[16]
On 11 July 2013, the respondent enrolled
the s158(1)(c) application for hearing. All papers in that
application, including heads
of argument had been filed.
[17]
As appears from the record of the hearing,
the Labour Court suggested to the parties that it should hear the
appellant’s review
application first and thereafter the
respondent’s s158(1)(c) application. Counsel for the appellant
objected to that process
and argued that the respondent’s
s158(1)(c) application could not proceed in view of the pending
review application. Counsel
submitted that once the arbitration award
was made an order of court, the appellant would be excluded from
having the arbitrator’s
award reviewed and set aside.
[5]
Counsel further submitted that in view of the incomplete record, the
review application was not ripe for hearing. It is common
cause that
the disciplinary chairperson’s reasons for her decision to
dismiss the respondent were missing from the record.
Furthermore, the
appellant’s counsel argued that it did not prepare for the
review application and therefore was not ready
to argue the review
application. The appellant’s counsel further submitted that the
application to stay the s158(1)(c) application
was not before the
court as it had not been set down for hearing on that particular day.
[18]
The Labour Court was of the view that there
was nothing barring it from entertaining the respondent’s
s158(1)(c) application
even if there was a pending review
application. The court was of the opinion that the missing part of
the record was not relevant
to the issues to be determined in the
review application, particularly because the chairperson had
testified at the arbitration
hearing and her evidence was summarised
in the award.
[19]
The Labour Court proceeded to hear
submissions made by the respondent’s counsel in the s158(i)(c)
application. The appellant’s
counsel made no submissions in
this regard in view of the appellant’s stance that there was a
pending review application
and that the s158(1)(c) application should
not be proceeded with.
[20]
On 06 September 2013, the court
a
quo
granted an order making the
arbitration award an order of court. After briefly summarising the
arbitrator’s reasons for coming
to the conclusion that the
respondent’s dismissal was a harsh sanction and after assessing
the appellant’s prospects
of success in the review application,
the court
a
quo
concluded that:
‘
[21]
Here there was dishonesty. However, it was aimed at protecting
not prejudicing the employer and the school. The
dishonesty was
not for personal gain. It was directed at parents of school
pupils. It did not prejudice them either.
Their sons had
damaged school property. They had agreed to contribute to the
replacement of the cart. They would have
made the contribution
if the employer (sic) were not dishonest.
[22] The only difference the
dishonesty made is that the contribution was paid into the employee’s
bank account. That
was after he had already paid for the
replacement of the cart. They paid the money into his bank
account because they had
agreed to pay for or contribute towards its
replacement, not because he misrepresented that the cart was his.
When they paid
him, the employee had already replaced the cart from
his own funds. The parents owed him the money because he had
already
paid for a replacement cart that he had delivered to the
school. The contribution by the parents was not enough to pay
for
the replacement of the cart. The employee paid the balance
out of his own pocket. The employer sold the cart at a loss,
repaid the parents in full, but did not repay the employee his full
contribution. He lost R12 000.00. This conduct
by
the employer amounts to cutting off your nose to spite your face.
…
[24] All in all, the employee
has lost in excess of R100 000, 00 for telling a lie that had no
material consequence for his
employer or the parents and that did not
benefit him, only his employer. I can see no reason for
interfering with the exercise
of the arbitrator’s discretion.
She decided to impose a sanction less than dismissal because she
found that dismissal
was too harsh in the circumstances. Her
finding takes into account the things for which she is criticized in
the grounds
of review. It is apparent from an analysis of the
award that the grounds of review are without merit. There are
no
prospects of success on review. The s158 (1) (c) application
should succeed.”
[21]
On 10 October 2013, the respondent brought
an urgent application for the execution of the award, which the
appellant opposed. On
the day of the hearing of the matter, the
parties, however, reached an interim settlement in terms of which the
respondent was
reinstated in an administrative position at the same
pay level he would have been but for his absence since 1 March 2012.
[22]
For some inexplicable reason, in view of
the fact that the judgment and order of the court
a
quo
making the arbitration award an
order of court has not been set aside, the appellant’s review
application was set down for
hearing in the Labour Court. Judgment
has been reserved pending the outcome of this appeal.
[23]
The appellant appeals against the judgment
and order of the Labour Court on the following grounds that:
23.1 the appellant was deprived of its rights to be
heard on the review application;
23.2 the Labour Court’
s
finding that
the respondent did not benefit or stand to benefit from his admitted
dishonesty is incorrect on the facts; and
23.3 the court’s finding that the respondent
did not benefit or stand to benefit from his admitted dishonesty
does
not take into consideration the fact that the respondent committed
misconduct contemplated in s18(1)(ee) of the Educators
Act which
should have consequences in law.
[24]
The
respondent opposes the appeal on the grounds that:
24.1 the appellant failed to exercise its right to
have the application in terms of s158(1)(c) of the Act stayed
pending
the finalisation of the review application.
24.2 the Labour Court having found that the
appellant was delaying the finalisation of the review application,
correctly found that the review application had no prospect of
success.
[25]
The main issue to be determined is whether
the Labour Court erred in exercising its discretion in favour of
making the arbitration
award an order of court in light of a pending
application to review the arbitration award.
[26]
In
National
Education Health & Allied Workers Union on behalf of Vermeulen v
Director-General: Department of Labour,
[6]
the court said the following:
‘
[24]…
The power to make an award an order of court under s158(1)(c) of the
LRA (or concomitantly to stay enforcement of an
award under s145(3))
is a discretionary power to be exercised judicially, and in general
should be applied in favour of lending
enforceability to an award in
the interests of bringing finality to labour disputes. The prospects
of success are therefore only
one consideration. Equally important
are the balance of convenience and the requirements of fairness.’
[7]
[27]
It is the appellant’s contention that
the court
a quo
denied it the right to be heard by proceeding to deal with the review
application in the absence of any input on behalf of the
appellant as
appellant’s counsel was not ready to argue the merits of the
review application. It is the appellant’s
contention that the
review application was not ripe for hearing as the record was
incomplete. It is further the appellant’s
contention that the
court
a quo
erred in not postponing the s158(1)(c) application with an order that
the appellant pays the wasted costs occasioned by the postponement.
It is the appellant’s contention that a postponement of the
s158(1)(c) application was justified in view of the fact that
the
parties still had to agree on a date for the reconstruction of the
record. Moreover, it is appellant’s contention that
at the time
the application was enrolled, it
had
already issued a notice to compel the ELRC to produce the record
and therefore there was no tardiness on its part.
[28]
On the issue of the court’s
discretion under the provisions of s158(1)(c) of the Act, it is the
appellant’s contention
that this is to be exercised judicially,
taking into consideration whether the interests of justice would be
served if the enforcement
of the award was stayed pending the
finalisation of the application for review. The appellant argues that
it is not in the interests
of justice to make the award an order of
court as its effect is to preclude the appellant from challenging the
reinstatement of
the respondent in light of his serious dishonest
conduct. It is the appellant’s view that should the s158(1)(c)
application
have been postponed and the parties given an opportunity
to finalise the reconstruction of the record, this application and
the
review application, together with the application for a stay
could be set down to be heard at the same time. The respondent would
not be prejudiced in that should the review court confirm that his
dismissal was substantively unfair, the respondent would be
reinstated. Furthermore, the respondent would not lose any benefits
that accrued to him since his dismissal.
[29]
On the issue of prospects of success in the
review application, it is the appellant’s contention that the
court
a quo
erred in not limiting itself to determining the prospects of success
of the appellant’s review application, but actually
made a
determination on the review application in the absence of the record
and argument on behalf of the appellant. It is the
appellant’s
contention that had the record been available at the hearing, the
court
a quo
would have discovered that it was not reasonable for the arbitrator
to have reached the conclusion she did based on the available
material.
[30]
It is further the appellant’s
contention that taking into account the respondent’s dishonest
conduct which fell within
the purview of s18(1)(ee) of the Educator’s
Act, a reasonable arbitrator would have found that the employment
relationship
between the appellant and the respondent had become
intolerable. Counsel submitted that the sanction of dismissal was not
inappropriate
and unfair under the circumstances.
[31]
On behalf of the respondent, it was
submitted that there is no bar in making an arbitration award an
order of court in circumstances
where, although there is a pending
review application, there was no application to stay execution of the
award and the appellant
had delayed in prosecuting the review
application. Furthermore, it is the respondent view that the
appellant was given an opportunity
to address the court on its
application for a stay of proceedings, but declined the invitation.
It is the respondent’s contention
that the court
a
quo
came to a correct decision in
concluding that there were no prospects of success in that the
appellant had not set out any plausible
grounds in its review
application that would have made the review application succeed. It
was submitted on behalf of the appellant
that clause 18(5) of the
Disciplinary code was not peremptory and therefore the arbitrator
correctly exercised her discretion to
reinstate the respondent as his
dishonesty was not that serious and he acted in the best interest of
the school, when the school
itself failed to discipline the learners.
It is further the respondent’s further contention that the
tardiness with which
the appellant was prosecuting the review
application was prejudicial to the respondent.
[32]
It is trite that once an arbitration award
has been made an order of court, it is no longer reviewable. The
order is of final effect
and is therefore appealable. Where the
appeal is against the discretion exercised by the lower court, the
court of appeal can interfere
with the decision of the lower court if
the decision of the lower court could not reasonably have been made
by a court properly
directing itself to all the relevant facts.
[33]
It is common cause that when the s158(1)(c)
application was heard, the parties were negotiating about dates for
the reconstruction
of the record. The respondent would not have
suffered any prejudice if the application was postponed to a
particular date in order
for the parties to conclude the exercise of
reconstructing the record and for the application for a stay or the
review to be heard
at the same time.
[34]
Inasmuch as the respondent’s
attorneys may have written several letters to the appellant’s
attorneys inquiring about
the filing of the record, the respondent
did nothing to assist in the reconstruction of the record well
knowing the fact that the
appellant was struggling to obtain the full
record. It is not for the respondent to wait for a sufficiently long
period, then take
advantage of the time lapse, and apply for the
award to be made an order of court. There is an obligation on all the
parties to
a review application to assist with the reconstruction of
the record.
[8]
[35]
The issue of the appropriateness of the
sanction imposed was not only of importance to the appellant but also
of public interest.
The respondent would suffer little prejudice as
he had been employed by the appellant albeit in an administrative
capacity at the
same level and remuneration. Accepting that the
period between the making of the award and the hearing of the
s158(1)(c) application
was lengthy, the review application was
timeously filed and the appellant did try to secure a proper record,
hence negotiations
on dates for the reconstruction. It does not
appear that the court
a quo
also considered whether it would be fair to make the award an order
of court or to have weighted the balance of convenience in
the award
being made an order of court. I am of the view that in fairness, the
court
a quo
misdirected itself in entertaining the s158(1)(c) application and not
granting the parties a limited time to finalise the record
and have
both applications: the review and the 158(1)(c ), heard at the same
time at some set future date.
[36]
In the circumstance and in the interest of
justice, I am inclined to uphold the appeal. With regard to costs,
the fact that the
respondent persisted with the hearing of the
s158(1)(c ) hearing notwithstanding the appellant’s call to it
to reconstruct
the record and thereafter to oppose this appeal is in
my view grounds in fairness to order it to pay the costs of this
appeal.
[37]
Accordingly,
the following order is made:
(i) the appeal is upheld
with costs.
(ii) the matter is
referred back to the Labour Court for the parties to finalise the
record within 60 days of the date of this order
or to approach the
Labour Court as provided in its Practice Manual for a judge of the
Labour Court to manage the matter to finalisation.
Mngqibisa-Thusi
AJA
I agree
Waglay
JP
I agree
Landman JA
APPEARANCES:
FOR THE APPELLANT: Advs FA Boda and H Rajah
Instructed
by State Attorneys
FOR THE RESPONDENT: Adv D J Vetten
Instructed
by BDK Attorneys
[1]
Section 18(5)(a) of the Code provides that “An
educator may be dismissed if he or she is found guilty of
dishonesty, as
contemplated in subsection (1)(ee)”.
[2]
Section 158(1)(c) of the Act reads as follows:
“
(1) The Labour Court may
–
(c) make any arbitration award or any
settlement agreement an order of the Court.”
[3]
Rule 5 (17) of the Rules of this court requires
the appellant to deliver the record within 60 days of the order
granting leave
to appeal.”
[4]
See court
a quo’s
judgment, paragraph 3, line 19-20.
[5]
In this regard see
Dartprops
(Pty) Ltd v CCMA
and
Others
[1999] 2 BLLR 137
(LC).
[6]
(2005) 26 ILJ 911 (LC).
[7]
At para 24.See also
Ntshangane
v Speciality Metals CC
[1998] 3 BLLR
305
(LC) at paras 13 and 14.
[8]
Sishuba v National Commissioner of the South
African Police
[2007] 10 BLLR 988
(LC).