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[2016] ZALAC 1
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Metsimaholo Local Municipality v South African Local Government Bargaining Council and Others (JA78/14) [2016] ZALAC 1; [2016] 5 BLLR 435 (LAC) (3 February 2016)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No: JA78/14
DATE: 03 FEBRUARY 2016
Not Reportable
In the matter between:
METSIMAHOLO LOCAL
MUNICIPALITY
.......................................................................
Appellant
And
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
..........................................................................................
First
Respondent
C M REX
N.O
...........................................................................................................
Second
Respondent
IMATU OBO KLAUMANNS-MOLLER
ROUX
....................................................
Third
Respondent
Heard: 6 November 2015
Delivered: 3 February 2016
Coram: Musi JA et Coppin JA et
Makgoka AJA
JUDGMENT
COPPIN, JA:
[1] This is an appeal with the
necessary leave against the judgment and order of the Labour Court
(Coetzee AJ), dismissing an application
to review and set aside an
arbitration award made by the second respondent (“the
arbitrator”), acting under the auspices
of the first
respondent, in favour of the two employees represented by the third
respondent union.
[2] In terms of the award the
arbitrator found that the dismissal of the two employees (Mr
Klaumanns-Moller and Mr Roux) by the
appellant was substantively and
procedurally unfair and reinstated them. The appellant, unhappy with
that outcome, brought an application
in the Labour Court to review
and set aside the award on a number of grounds, which I shall briefly
traverse later in this judgment.
The Labour Court in a brief
judgment rejected the various grounds relied upon by the appellant
and dismissed the review application
but made no order as to costs.
[3] The appellant unsuccessfully
applied to the Labour Court for leave to appeal against the judgment
but was granted leave on petition
to this Court.
[4] For the reasons I shall mention and
elaborate on, I am of the view that the Labour Court was correct and
the appeal stands to
be dismissed.
[5] The facts and circumstances that
culminated in the dismissal of Mr Klaumanns-Moller and Mr Roux (who I
will also jointly refer
to as “the employees”) are
briefly the following. Both of them were employed by the appellant
as electricians. At
times certain electrical work was also contracted
out by the appellant. The two employees did private electrical work
after having
given written notification of their intention to engage
in such private work during a period of leave that they had sought
and
had been granted to them. Several other employees of the
appellant (about eighteen) also did the same.
[6] At some point, the then Assistant
Manager of Legal Services of the appellant, Mr Teboho Mosuoane, who
at the time of the arbitration
was the Acting Manager in the office
of the Municipal Manager of the appellant, got to hear about this and
investigated the matter.
He found the employees of the appellant
including the two affected employees working for a contractor, or
another private party.
[7] Relying on the provisions in a
collective agreement, namely clauses 1.2.5 and 1.2.8 thereof, which
were binding on the parties
and provide that the employees are to
“refrain from accepting any other employment outside of normal
working hours without
the prior permission of the departmental head
or municipal manager (which permission shall not be unreasonably
withheld)”,
– only two employees, Mr Klaumans-Moller and
Mr Roux were charged with and found guilty of gross misconduct. It
was alleged
and found that they had contravened the collective
agreement, in that on or about 31 October 2007 and 1 November 2007
“they
wrongfully and intentionally rendered services for and
accepted employment from Siza Mekaar CC without prior permission from
the
authorised person, alternatively assisted Siza Mekaar CC solely
in the execution of their contractual duties towards the municipality
and in furtherance of the business of Siza Mekaar CC”.
[8] It was further alleged and found
that the conduct of the two affected employees was unwarranted and
unreasonable, alternatively
unacceptable, in the circumstances,
because they were on leave at all relevant times; it was in breach of
their common law duty
of good faith towards the appellant; and it was
irreconcilable with the continuation of a normal employment
relationship.
[9] An attorney chaired the
disciplinary hearing and Mr Mosuane represented the appellant. The
two affected employees were represented
by a union official. At the
conclusion of the disciplinary hearing the chairperson imposed a
sanction of summary dismissal on both
affected employees which the
appellant gave effect to and they were dismissed on 12 October 2008.
Internal appeals by the union
(IMATU) and the affected employees were
unsuccessful. None of the other employees who had engaged in similar
conduct as the two
affected employees were charged or disciplined.
[10] The union, on behalf of the two
affected employees, referred the dispute to the first respondent for
conciliation, failing
which arbitration. Conciliation failed and the
parties went to arbitration.
[11] The appellant called two witnesses
namely Mr Motloung, its Supply Chain Manager, and Mr Mosuoane. The
employees gave evidence
and they called Mr Johannes van Wyk, Manager
of Mechanical and Electrical Engineering, who was the head of their
section and to
whom they reported and who, in turn, reported to the
Municipal Manager and the Director of Technical and Infrastructural
Services.
They also called Mr Strydom whose evidence is not referred
to in the award.
[12] Mr Motloung testified about the
existence of the applicable provisions in the collective agreement.
He also opined (despite
the absence of such a provision) that
permission to do private work had to be in writing. Speaking from his
knowledge, he denied
that either of the two employees had been
granted permission to do the private work in connection with which
they were charged
and dismissed.
[13] Mr Mosuane testified that he
investigated after getting a “tip-off”. He justified not
charging the other eighteen
employees who also did private work on
the basis that he regarded them as “whistleblowers” and
possible witnesses.
He also testified inter alia that he had
conducted workshops on the collective agreement.
[14] Both employees testified, as they
had maintained from the outset, that they did not do private work for
Siza Mekaar CC, but
for a person named Steven Jacobs and they did so
with the knowledge and approval of their superior, Mr Van Wyk. He is
also the
one who gave them leave. Both of them had applied in writing
for permission to do private work. The document that they used to
apply for permission had been drafted by Mr Van Wyk to assist
illiterate employees and was completed by everyone who wanted to
do
private work. They were never informed that permission had not been
granted for them to engage in the private work. The whole
electrical
department engaged in private work from time to time. The electrical
department was not prejudiced because they did
the private work in
their own time (i.e. during their leave).
[15] Mr Van Wyk, in essence, confirmed
the evidence of the two employees. He testified that he took the
applications of the two
affected employees to the Director: Technical
and Infrastructural Services, on 14 November 2007 and also wrote a
memorandum to
the Director in that regard. After the Director left
the employ of the appellant in December 2007 he (i.e. Mr Van Wyk)
personally
took all the applications for permission to do private
work to the Municipal Manager.
[16] Mr Van Wyk testified inter alia
that it was “standard procedure” for employees who
applied to do private work to
commence and continue with such work,
unless and until their applications were rejected. For the last six
years there had been
no specific approval or disapproval of any of
the applications. According to Mr Van Wyk, the previous head did not
seem to have
any problem with it. Even after the two employees were
dismissed, the same practice continued and up to the time of his
giving
evidence at the arbitration, the practice had not been
discontinued by the appellant. He confirmed that the other employees
in
his department (namely Mr Mema and Motloung (not the supply chain
Manager)) were never charged even though they had engaged in the
same
conduct as the employees.
[17] The arbitrator found, on the
evidence, that the rule as per the collective agreement had not been
contravened by the employees.
There was no provision that the
permission had to be given in writing. He accepted Mr Van Wyk’s
evidence of the practice
and found that the employees could only have
contravened the rule if it had been made clear to them that their
applications to
do private work had been disapproved. This did not
occur in this case.
[18] The arbitrator further found that
the appellant had been inconsistent in charging the employees while
not charging the other
employees, who engaged in the same conduct.
He was sceptical of Mr Mosuane’s evidence that they were not
charged, because
they were “whistleblowers” and
witnesses. They also did not give any evidence in the disciplinary
hearing of the
employees. The arbitrator then went on to make the
following award:
“Ruling
91. The dismissals of the applicants,
Mr H Klaumanns-Moller and Mr J J Roux, are procedurally and
substantively unfair.
92. The respondent is ordered to
reinstate the applicants on the same terms and conditions of
employment which governed the employment
relationship between the
parties prior to the applicants’ dismissal on 22 October 2008.
93. The applicants shall report for
duty at 08h00 on 1 December 2009 at the respondent’s offices in
Sasolburg.
94. The respondent shall pay Mr H
Klaumanns-Moller remuneration (back-pay) in the amount of R156 000,00
(R13 000,00 x 12 months)
minus normal monthly deductions by no later
than 15 December 2009. Should the respondent fail to pay this amount
on the date as
determined, moratore interest will accrue to this
amount at the rate of 15,5%.
95. The respondent shall pay Mr J J
Roux remuneration (back-pay) in the amount of R102 000,00 (R8 500,00
x 12 months) minus normal
monthly deductions by no later than 15
December 2009. Should the respondent fail to pay this amount on the
date as determined,
moratore interest will accrue to this amount at
the rate of 15,5%.”
[19] The appellant brought an
application to review and set aside the arbitrator’s award. The
Labour Court found in essence
that the award and findings of the
arbitrator were within the bounds of reasonableness and dismissed the
application.
[20] It was argued on appeal by the
appellant that the evidence did not establish that there was a
practice as testified to by Mr
Van Wyk and that the employees were
contradicted by Mr Van Wyk on this point. Secondly, that Mr Motloung
and Mr Mosuoane had given
evidence that a practice such as that
claimed by the employees could not override a written collective
agreement. Thirdly, that
the municipality was obliged to keep records
of permission granted and there was no record of permission having
been granted to
the employees. Further, on this point, that Mr
Strydom had confirmed that in the past written permission had been
granted. Fourthly,
that their evidence did not establish a practice
that permission would be granted to do private work for an existing
contractor
upon their mere application for permission to do such
work. On this point, it was submitted that Mr Motloung had given
“clear”
and “unchallenged evidence” that it
could not have been proper for the municipality to outsource work to
a contractor
if it had its own resources and staff to do the work and
that permission would not have been given in such circumstances.
[21] It was further submitted on behalf
of the appellant that it was the employees’ version that
everyone knew that they were
doing private work, but they did not
establish that the Municipal Manager and/or Director of Technical
Services and Infrastructure
had such knowledge. The fact that Mr Van
Wyk knew did not assist them, because he had no power to authorise
them to do private
work.
[22] The appellant further submitted
that the finding by the arbitrator that an employee could do private
work until and unless
his application for permission to do such work
was refused was “unsustainable and illogical” and that a
reasonable
arbitrator would have found the contrary. On this point it
was submitted that the mere fact that the employees were required to
apply for permission was inconsistent with the finding.
[23] On behalf of the appellant it was
further submitted that because the collective agreement provides that
an application for
permission must be in writing a variation of it
must “axiomatically” also be in writing. Further, that it
was not shown
that the practice arose from a person of authority such
as the Municipal Manager or the Director of Technical Services.
Further,
that if there was a practice as testified to by the
employees, it would have been unlawful to apply where work was being
done for
a contractor, because it would have amounted to the
sanctioning of fruitless and wasteful expenditure. It was pointed out
that
Mr Motloung had testified that if services could be performed
internally it would have been unfair to outsource them to someone
who
had no capacity to perform them and who needed to use the appellant’s
employees to perform them. According to the appellant
this evidence
of Mr Motlaung was ignored. I shall now proceed to deal with the
submissions before dealing with the submission
made by the appellant
regarding the issue of inconsistency.
[24] Fundamental to the appellant’s
submissions is the fact that permission had not been given, but it
did not call either
the Director, or the Municipal Manager, to prove
that fact. Neither Mr Motloung, nor Mr Mosuoane, had personal or
dependable knowledge
of that fact. They expressed their personal
opinions on the matter. It would have been very easy for the
appellant to produce direct
reliable evidence that permission in any
form had not been given, but that was not done.
[25] The provision in the collective
agreement is clear. It does not expressly state that the permission
has to be given in writing
and there is nothing to show that it
implied that the permission had to be in writing. In any event, the
onus was on the employer
to prove that the employees broke a rule
which was clear and certain. That would have included establishing
that the employees
knew that the required permission had to be in
writing. In any event, if the intention was that permission had to
be in writing,
why was the rule itself silent about it?
[26] Despite the fact that the third
and further respondents, which includes the affected employees,
produced evidence of an established
practice, as explained by Mr Van
Wyk and Mr Strydom, the appellant did not produce any evidence to
refute it. Instead of arguing
that it was for the employees to show
that the practice emanated from a person or persons in authority, it
was in actual fact for
the appellant to show through such persons,
that such a practice did not exist.
[27] The evidence of Mr Van Wyk and Mr
Strydom was direct and persuasive that such a practice existed. The
court a quo in my view
correctly found that it was within the
boundaries of reasonableness for the arbitrator to find, in light of
all the evidence,
that the employer did not prove that the employees
had contravened the rule relied upon.
[28] It is not contested that the
employees did the private work after having applied in writing, in
the usual form, for permission
to do such work. They performed it in
accordance with the standard practice which was in existence and
continued to exist at the
appellant, according to the evidence –
which was not refuted or effectively refuted. They did so with the
knowledge of Mr
Van Wyk, who also submitted their applications to the
requisite persons together with an accompanying memorandum. There is
no evidence
that the employees were at any stage denied permission by
such persons in authority. The evidence they produced suggests the
contrary,
namely, that in the absence of express refusal of
permission, the permission was taken to have been given.
[29] The respondent in my view
correctly submitted that if so-called “moonlighting” was
to be effectively prohibited
there ought to have been a specific
rule, which must have been made known to the employees, that
“moonlighting” was
not permissible. For a dismissal based
on “moonlighting” to be fair there must be proof of such
a rule, knowledge on
the part of the employee of the rule and breach
of such a rule by the employee.
[30] Clause 1.2.8 of the collective
agreement, which was relied upon by the appellant, does not outlaw
“moonlighting”.
It expressly provides that employees had
to apply for permission to do private work and it states that such
permission shall not
be unreasonably withheld.
[31] With regard to the issue of
inconsistency, the appellant sought to justify its decision not to
charge the other employees who,
in effect, engaged in the same
conduct as the affected employees. It submitted that the former
admitted that they performed work
for the contractor and were
required as witnesses to prove that the employees in fact worked for
the contractor. Further, that
the employees were more senior than
the others and had influenced others to work for the contractor.
[32] According to the appellant, this
was a case where the parity principle had to be applied “with
caution”, because
the appellant was an organ of State and the
application of the principle would allow employees to make a double
profit at the expense
of the appellant “contrary to the ethical
norms set by law and to mandatory procurement processes which require
transparency”.
[33] In my view none of these arguments
are valid at all. The fact is that the appellant failed to give a
reasonable and/or rational
explanation for not charging the other
employees and for only charging Mr Klaumanns-Moller and Mr Roux.
None of the eighteen
other persons engaged in the same conduct were
called as witnesses and none of them were disciplined. Mr Mosuoane’s
explanation
for not charging them rings hollow in the light of that.
The impression is that the appellant, finding itself unable to give
the
true reason for not charging those other persons, “clasped
at straws” such as seniority and alleged influence. There
was
no direct and acceptable evidence that any of the other employees
were influenced by the employees. Ultimately the appellant
sought to
rely on conjecture. The other eighteen employees could clearly not
have been “whistleblowers” as contemplated
in the
legislation pertaining to protected disclosures. Mr Mosuoane’s
evidence begs the question how all eighteen persons
could have “blown
the whistle”. The clandestine element is also missing.
[34] There is no evidence that Mr
Klaumanns-Moller and Mr Roux concealed the fact that they were doing
private work. It was not
contested that they applied for permission
in writing and that not only their superior Mr Van Wyk knew, but that
their applications,
together with a memorandum prepared by Mr Van
Wyk, had been submitted to the Director and to the Municipal Manager.
[35] The inconsistency, which in my
view was clearly shown, was not the only reason why the arbitrator
found that the dismissals
of the respondent employees were not fair.
It was merely one of the reasons.
[36] The appeal clearly lacks merit.
Taking all the factors into account there is no reason in fairness or
in law why the costs
should not follow the outcome.
[37] In the result the appeal is
dismissed with costs.
P Coppin
Judge of the Labour Appeal Court
Musi JA and Makgoka AJA concur in
the judgment of Coppin JA.
Appearances
For the Appellant Adv F A Boda SC
Instructed by Lebea & Associates
Attorneys
For the Third Respondent Adv S
Grobler
Instructed by J Nortje (Attorney)