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[2016] ZALAC 74
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BUFFALO CITY METRO V MANGASHE AND OTHERS (PA8/2014) [2016] ZALAC 74 (3 May 2016)
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PA8/2014
BUFFALO
CITY METROPOLITAN MUNICIPALITY
Appellant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
First Respondent
NTOMBEKHAYA SESANI
N.O.
Second Respondent
PATRICK
MANGASHE
Third Respondent
Heard: 15 September
2015
Delivered: 03 May 2016
Summary:
Dismissal - misrepresentation of qualifications by an employee-
procedural and substantive fairness – Labour Court
finding
setting aside the award of the arbitrator and ordering the remittal
of the matter for fresh arbitration – whether
Labour Court
should have determined sanction.
Coram:
Waglay JP, Coppin JA
et
Makgoka AJA
JUDGMENT
MAKGOKA
AJA
[1]
This is an appeal against part of the order
of the Labour Court (Lallie J) in terms of which the arbitration
award made by second
respondent in favour of the third respondent was
set aside. Having set aside the award, the Labour Court remitted the
dispute to
the first respondent, the South African Local Government
Bargaining Council (SALGBC) for a fresh arbitration before a
different
arbitrator. The appellant’s appeal is directed only
against the latter part of the order, i.e. remitting the dispute to
SALGBC.
The appellant contends that, instead of remitting the matter
to SALGBC, the Labour Court should have substituted the arbitrator’s
award with a finding that the dismissal of the third respondent was
substantively and procedurally fair.
[2]
The appellant (the municipality) is a
municipality established in accordance with
s12
of the
Local
Government: Municipal Structures Act 117 of 1998
, and which in terms
of
s2(d)
of the
Local Government: Municipal Systems Act 32 of 2000
,
has a separate legal personality. The first respondent is a dispute
resolution body established voluntarily in terms of the Labour
Relations Act 66 of 1995 (the LRA) by agreement between the employer
organisation (SALGA) and trade union parties, IMATU and SAMWU.
The
second respondent (the arbitrator) is an appointed panellist of the
first respondent, who conducted arbitration proceedings
under the
auspices of the first respondent. The third respondent (Mr Mangashe)
is an erstwhile employee of the municipality.
[3]
The municipality appeals with leave of the
Labour Court. The appeal is opposed by Mr Mangashe, who supports the
order of the arbitrator.
In his heads of argument filed in this
Court, however, Mr Mangashe adopts a slightly different approach, in
which he submits that
the order of the Labour Court remitting the
matter to SALGBC should be replaced with an order dismissing the
municipality’s
application for review of the second
respondent’s decision. The insurmountable hurdle for Mr
Mangashe in this regard is that
there is no cross-appeal against the
order of the Labour Court.
[4]
The facts are simple. Mr Mangashe was
employed by the municipality in July 2008 as a constituency
co-ordinator. The position required
the incumbent to have either
matric, a three-year post matric qualification and two years of
relevant experience, alternatively,
matric and four years of relevant
experience. In his application, Mr Mangashe represented that he had
passed matric in 1979 and
subsequently obtained a diploma in
transport management. He did not, however, provide copies of his
qualifications prior to his
appointment. He was nevertheless
appointed, apparently on the understanding that he possessed the
qualifications which he claimed
to have.
[5]
After his appointment the municipality,
repeatedly requested Mr Mangashe to furnish proof of his
qualifications. When this did not
happen, the municipality charged
him with gross misconduct in that he had misrepresented his
qualifications by stating that he
had matric, when in fact this was
not true. He was called to attend a disciplinary enquiry to answer to
that charge, but he did
not attend. The hearing proceeded in his
absence. Mr Mangashe did not attend his disciplinary hearing, which
proceeded in his absence.
He was found guilty of gross misconduct for
misrepresenting his qualifications. He was dismissed on 18 November
2009.
[6]
Aggrieved with that decision, Mr Mangashe
referred the dispute to arbitration. The arbitration proceedings,
came before the arbitrator,
during which the municipality called five
witnesses and Mr Mangashe testified on his behalf. The x municipality
last witness, Mr
Deshaan Naidoo, testified briefly about the
short-listing of the candidates for the position to which Mr Mangashe
was eventually
appointed. His evidence therefore has no bearing on
the issues in dispute, and shall not be referred to in this judgment.
–
Only the evidence of the remaining four witnesses will be
considered. It is not necessary to set out in detail the evidence of
each witness but a brief summary would suffice.
[7]
Mr Sizwe Mbuyazwe, a messenger employed by
the municipality, testified on the procedural aspect relating to the
service of documents
on Mr Mangashe. He testified that he was tasked
with the delivery of notices relating to disciplinary hearings. On 29
September
2009, he delivered a notice of a disciplinary hearing at
the residence of Mr Mangashe, who was not present. The notice was
received
by a person who identified himself only as Sthembele. On 6
October 2009, he again visited Mr Mangashe’s residence and
delivered
another letter concerning the disciplinary hearing. Again,
Mr Mangashe was not present, and he left the letter with Mr
Mangashe’s
neighbour’s son. Lastly, on 9 November 2009,
and once more in the absence of Mr Mangashe, he delivered another
letter yet
again to his neighbour’s son.
[8]
Ms Elva Diedericks, who was employed as a
receptionist and typing clerk in the Human Resources section of the
municipality, testified
that it often happened that employees would
attend interviews without being requested to submit proof of their
qualifications,
but would be requested to do so later during “data
check”. After Mr Mangashe’s appointment, she was
instructed
by the Manager: Personnel and Labour Relations, Mr Andrew
Owen, to obtain and verify Mr Mangashe’s qualifications. She
called
the latter on several occasions and sent him e-mails
requesting verification of his qualifications. Mr Mangashe indicated
to her
that he had obtained a diploma in transport management in
Zambia and he was trying to obtain verification through a private
Zambian
citizen and with the assistance of the South African Embassy
in Zambia. However, Mr Mangashe failed to submit copies of his
qualifications
until he was called to a disciplinary hearing.
[9]
Mr Vuyo Zambodla was the Director of
Executive Support Services at the municipality and Mr Mangashe’s
immediate manager. He
testified that because of the role and
centrality of the position held by Mr Mangashe as being crucial for
communication
with the community, there was no room for dishonesty or
misrepresentation in that regard. He also testified that he decided
to
institute disciplinary proceedings against Mr Mangashe after he
had discussed with him about his failure to submit his qualifications
despite being instructed to do so. He further testified that Mr
Mangashe was advised by his office to collect his notice to attend
the disciplinary hearing, but he failed to do so. As a result, it was
decided that the notices would be delivered to his place
of
residence. During cross-examination, he stated that in terms of the
municipality’s policy, t appointment of employees
is confirmed
only after an employee had submitted his or her qualifications during
the interview. He could not explain why
Mr Mangashe was
appointed without submitting his qualifications.
[10]
Mr Andrew Owen was Manager: Personnel and
Labour Relations at the municipality during the relevant period. He
sat on the panel that
interviewed Mr Mangashe when he applied for the
position of constituency co-ordinator. He confirmed Mr Zambodla’s
evidence
on the appointment policy of the municipality (regarding the
submission of qualifications during the interview). However, in Mr
Mangashe’s case, he was appointed despite not having submitted
copies of his qualifications. In this regard, Mr Owen testified
that
he was instructed by management of the municipality to make the
appointment of Mr Mangashe “happened” even if
he did not
have copies of the required qualifications. Regarding Mr Mangashe’s
application, he testified that the application
form was not completed
properly, in that in the space provided for details about matric
certificate, Mr Mangashe had not indicated
when he acquired such a
certificate. He telephonically contacted Mr Mangashe and during that
conversation, Mr Mangashe informed
him that he matriculated in 1979
and acquired a diploma in transport management several years later.
On that assurance, Mr Owen
endorsed the application form accordingly.
[11]
After Mr Mangashe’s appointment, he
instructed Ms Diedericks to obtain from him proof of his
qualifications. He also requested
them from Mr Mangashe, who informed
him that he was in the process of getting proof of his qualifications
from Lesotho and Zambia,
respectively where he obtained them. Mr
Mangashe also pointed out to him that his workload did not permit him
to dedicate time
on getting his qualifications, and requested
extension of time to submit them. Up to the time he left the
employment of the municipality
in September 2009, Mr Mangashe had
still not submitted proof of his qualifications.
[12]
In his evidence, Mr Mangashe testified that
he did not attend the disciplinary hearing because he did not receive
the notice to
attend the hearing. He was also not advised of the
outcome of the disciplinary hearing, and only became aware of his
dismissal
when he was not paid his salary at the end of November
2009. He denied that he ever represented to the municipality that he
had
passed matric. To this effect, he testified that Mr Owen was the
one who said that he had a matric. He further testified that he
explained during his interview that he would have difficulties in
obtaining proof of his qualifications, due to that fact that
they
were obtained outside South Africa. He also informed the interviewing
panel that he only had a diploma in transport management
and that was
the only qualification he was able to submit.
[13]
Mr Mangashe further testified that his
dismissal was politically motivated. In support of this, he made
reference to an article
in the Daily Dispatch of 1 April 2009, which
posited that him and other employees alleged to be members of
(Congress of the People)
COPE,
[1]
were locked out of their offices with the instruction that they be
moved to other departments from the mayor’s office. During
cross-examination, Mr Mangashe conceded that he had received a notice
of a disciplinary hearing delivered to Sthembele (mentioned
in para 7
above) because they lived together. He, however, stood firm that he
did not recall informing Mr Owen during their telephonic
conversation
that he had a matric. What he recalled telling Mr Owen, was that he
had enrolled at a high school in Maseru during
1979 and during
November of that year he joined the Umkhonto Wesizwe movement (MK).
During those proceedings, Mr Mangashe furnished
a copy of a National
Diploma in Transport Management, issued by the examination council of
Zambia in the name of one Hamilton Ntshinga.
Mr Mangashe explained
that this was his nom de guerre which he assumed as a MK
[2]
operative during the struggle years. He also submitted a confirmatory
letter from MK Military Veterans Association (MKMVA) stating
that he
joined MK in 1978 under the name of Hamilton Ntshinga.
[14]
That is in brief a summary of the evidence
before the arbitrator, who identified two issues for determination.
First, whether Mr
Mangashe was in possession of the required
qualifications for the position to which he was appointed. Second,
whether the dismissal
of Mr Mangashe was substantively and
procedurally fair. With regard to the diploma certificate and the
letter from MKMVA submitted
at the arbitration, the municipality’s
representative objected to their admissibility. However, the
arbitrator accepted these
documents as conclusive proof that Mr
Mangashe had indeed acquired the diploma referred to in the
certificate, and that he was
in fact the person referred to as
Hamilton Ntshinga.
[15]
The arbitrator’s reasoning for that
conclusion was that ‘[n]one of these documents were
interrogated (by the municipality).’
Having made the
determination that Mr Mangashe was in possession of the diploma in
question, the arbitrator then considered whether
Mr Mangashe had
misrepresented that he had a matric certificate. In considering this
question, the arbitrator reasoned as follows:
‘
None
of the documents submitted by the applicant to the respondent during
his application suggests that he passed matric. The only
information
to that effect is the endorsement made by Mr Owen. The applicant
could not recall the alleged conversation, however,
one needs to
state that Mr Owen had no reason to fabricate such evidence. Also at
these proceedings the applicant did not submit
such certificate,
which forms part of the charges against him. Further, at no stage did
the applicant admit or deny to be in possession
of this certificate.
This then left me with one conclusion, that the applicant does not
have such certificate.’
[16]
Having made that finding, the arbitrator
continued as follows:
‘
Ms
Diedericks, who was the person instructed to contact the applicant
and yet in evidence she made it clear that the only certificate
she
required from the applicant was that of the national diploma and not
standard ten. Taking this testimony with that of Mr Owen
on the fact
that the applicant has no reason to lie about having standard ten, as
it would not have made any difference in his
application considering
that he had the required diploma. The applicant argued that the
charges against him were trumped up, citing
the article from the
Daily Dispatch as proof. He subpoenaed Ms Faku to answer to such
document but he failed to attend. Having
read the article and the
fact that every employee mentioned in it was removed from the
mayor’s, I cannot help but accept
the applicant’s
contention in this regard. Having considered the above, it is my
finding that the respondent failed to prove
that the applicant
misrepresented himself/lied about his qualifications. It is also my
finding that the respondent failed to prove
that the applicant
refused to obey a lawful instruction.’
[17]
However, the arbitrator found that the
misrepresentation made no difference, since Mr Mangashe had obtained
a diploma in transport
management. She therefore found the dismissal
substantively unfair on that basis. As to the procedural fairness,
the arbitrator
found that because there was no conclusive evidence
that Mr Mangashe had received the notice to attend the disciplinary
enquiry,
the holding of the disciplinary enquiry in his absence
renders his dismissal procedurally unfair. The arbitrator then
ordered the
municipality to pay Mr Mangashe compensation in the
amount of R384 000.00, which is equivalent to 12 months’
remuneration.
[18]
Unhappy with that determination, the
municipality applied in terms of s145 of the Labour Relations Act 66
of 1995 (the LRA) to review
and set aside the award. It relied mainly
on four grounds for the review. One of the grounds concerned the
procedural fairness
of the dismissal, while the rest related to the
substantive fairness thereof. With regard to procedural fairness, the
municipality
assailed the arbitrator’s finding that Mr Mangashe
had not received notification of the disciplinary hearing. It was
contended
in this regard that the finding was not supported by the
evidence and constituted misconduct and/or gross irregularity. It was
argued that the arbitrator should have found that Mr Mangashe was
aware of the date of the enquiry because he had respondent to
the
charge sheet prior to the and as per the uncontroverted evidence of
Mr Mbuyazwe. Moreover, Mr Mangashe’s evidence during
cross-examination is that he in fact had received the notice in
issue.
[19]
With regard to substantive fairness, three
findings of the arbitrator were challenged. Firstly, it was contended
that the finding
by the arbitrator that Mr Mangashe had not
misrepresented himself when he indicated he had a matric certificate
was not supported
by evidence, and was one which no reasonable
decision-maker could reach in the circumstances. It was contended
that the finding
constitutes both a misdirection and a gross
irregularity on the part of the arbitrator in that she had applied
flawed reasoning
and failed to find the conduct to amount to
dishonesty justifying Mr Mangashe’s dismissal. In essence, the
municipality argued
that having found that Mr Mangashe did not have a
matric certificate, the arbitrator should have found that it was a
fraudulent
misrepresentation which rendered Mr Mangashe’s
dismissal substantively fair.
[20]
Secondly, the municipality argued that the
finding by the arbitrator that Mr Mangashe had obtained a diploma was
unreasonable, as
it was based on inadmissible hearsay evidence. The
municipality contended that the arbitrator had misconstrued the
evidence and
the evidentiary burden in respect of proving the
documentation in issue, and in not advising its lay representative on
how to challenge
the documentary evidence adduced by Mr Mangashe.
[21]
Thirdly, the municipality challenged the
arbitrator’s finding that Mr Mangashe was not afforded
reasonable time to obtain
proof of the diploma he claimed to have
acquired. It was submitted that Mr Mangashe had repeatedly failed to
produce the certificate
of the diploma in question for a period of
approximately 17 months, being the period between his appointment and
the dismissal.
The contention is that the arbitrator should have
found that the repeated requests for extension of time had been
acceded to and
the resultant failure to produce proof of
qualification was both unreasonable and unjustifiable, rendering Mr
Mangashe’s
dismissal substantively fair.
[22]
The Labour Court found, with regard to
substantive fairness of the dismissal, that the arbitrator committed
a gross irregularity
by finding that the municipality had failed to
prove that Mr Mangashe misrepresented his qualifications to it. The
Labour Court
found this finding “discordant with, and flies in
the face of the evidence (the arbitrator) elected to accept”,
in
light of the arbitrator’s express finding that Mr Mangashe
did not have a matric certificate. The Labour Court also found
that
the arbitrator committed a gross irregularity in accepting the
evidence of Mr Mangashe regarding the diploma certificate he
furnished during the arbitration proceedings. The Labour Court agreed
with the municipality that the arbitrator had failed to apply
the
provisions of
s3(1)(c)
of the
Law of Evidence Amendment Act 45 of
1988
. With regard to procedural fairness, the Labour Court found that
the arbitrator’s rejection of the municipality’s evidence
on the service of the relevant notification notices on Mr Mangashe,
was not supported by the evidence before her.
[23]
The Labour Court concluded that taking into
account the nature of the gross irregularities committed by the
arbitrator, her award,
was one which a reasonable decision-maker
could not reach on the evidence before her. It accordingly reviewed
and set aside the
arbitration award and remitted the matter to the
first respondent, for arbitration afresh, by an arbitrator other than
the second
respondent.
[24]
The municipality appeals to this Court
against the above order, on a number of grounds. The essence of the
municipality’s
complaint is that having found that the
arbitrator had accepted that Mr Mangashe did not have a matric
certificate, and that he
had misrepresented his qualifications to the
municipality the Labour Court was more than adequately placed to
determine the issue,
since it was in possession of all relevant
evidence.
[25]
In his written submissions, Mr Mangashe
contended that the evidence did not support the Labour Court’s
finding that he had
misrepresented his qualifications. He argued that
the evidence showed only that he did not complete his matric.
According to him,
the evidence of Mr Owen that he had informed the
latter that he had passed matric, should not have been accepted.
This, according
to Mr Mangashe, was because he had declared in his
application form that he did not pass matric. Mr Mangashe also
submits that
Mr Owen’s evidence should have been disregarded
because he testified that he had been put under pressure to have him
appointed
to the post even if his qualifications had not been
submitted and verified. Mr Mangashe also supported the arbitrator’s
finding
that since he had a M3+ qualification (by virtue of the
diploma in transport management and the relevant experience), the
question
whether he had a matric made no difference. Mr Mangashe also
pointed out that in any event, he met the requirements for the
position
as he had an NQF Level qualification at the time he
submitted his application form.
[26]
Mr Mangashe also argued that, on a balance
of probabilities, Mr Owen’s evidence should not have been
accepted, if regard is
had to the evidence of Ms Diedericks, who
testified that Mr Owen had instructed her to ask him to submit his
diploma certificate,
and not his matric certificate. On the strength
of this evidence, Mr Mangashe submitted, it would have been
inconceivable that
Mr Owen would have asked Ms Diedericks to only ask
him for the diploma certificate if Mr Owen knew that he still had an
outstanding
matric qualification that he supposedly asked him to
endorse on his application form as being in possession of. Mr
Mangashe also
made much of the fact that his dismissal was
politically motivated as he had joined COPE, and that from the
beginning, Mr Owen
was pressurised into making his appointment to
“happened” even without submission of the proof of his
qualifications.
With regard to procedural fairness, Mr Mangashe
persisted with his stance that he did not receive notice to attend
the disciplinary
hearing.
[27]
The procedural fairness argument can be
disposed of fairly summarily. In this regard, the Labour Court, as
pointed out earlier,
found that the arbitrator’s decision was
unreasonable and not supported by the evidence. The only logical
conclusion of this
finding should have been that Mr Mangashe had been
properly and adequately notified of his disciplinary hearing, and
therefore,
his dismissal was procedurally fair. I therefore agree
with the municipality’s contention that the finding of
procedural
unfairness should have been replaced with a finding that
the dismissal was procedurally fair. The Labour Court erred in not
doing
so.
[28]
I turn now to substantive fairness. In
approaching this aspect, one should always bear in mind that the
position which Mr Mangashe
applied for and was appointed to, had, as
a basic requirement, a matric certificate. In both alternatives, the
incumbent had to
be in possession of a matric either with a three
year post matric qualification plus two years’ relevant
experience, or matric
plus four years’ experience. It is common
cause that at the time of the application, Mr Mangashe did not
possess a matric.
The simple upshot of this is that he did not
qualify for the position. The fact that he had obtained a diploma did
not distract
from the basic requirement of a matric qualification. He
knew that he did not have a matric certificate. There is therefore no
merit in his argument that he never held out to the municipality that
he had a matric.
[29]
The misrepresentation began by his
application for the position, thereby presenting to the municipality
that he meets all the requirements
for the job, including the matric
qualification. He does not suggest that he applied for the position
on any other basis other
than that he met the requirements. It is
clear from the manner in which he completed the application form that
he was deliberately
vague as to his matric qualification. This
prompted Mr Owen to contact him telephonically to clarify this
aspect. There is no other
way of looking at it. It is significant
that Mr Mangashe does not dispute that the telephone conversation
between him and Mr Owen
took place in which they discussed lack of
clarity on his application form and in particular, his matric
qualification.
[30]
The arbitrator concluded that there was no
reason to doubt Mr Owen’s evidence that Mr Mangashe had told
him that he had passed
matric in 1979, as a result of which Mr Owen
made an annotation on Mr Mangashe’s application form,
accordingly. The Labour
Court found no basis to interfere with this
factual finding, and therefore agreed with the arbitrator. Mr
Mangashe’s argument
that Mr Owen’s evidence should have
been rejected because he had instructed Ms Diedericks to enquire only
about the diploma
certificate, lacks merit, and is disingenuous. The
Labour Court therefore correctly found that Mr Mangashe had
misrepresented his
qualifications to the municipality.
[31]
Regarding the argument that the charges
were politically motivated, Mr Mangashe relies on the minutes of the
municipality’s
council meeting held on 3 March 2009. During
that meeting, the executive mayor bemoaned the fact that because
almost all staff
members in her office were COPE activists, she had
requested in vain that they be transferred to other offices. The
executive mayor
added that, as an ANC executive mayor, she was being
compromised because activists from the opposition party surrounded
her. Mr
Mangashe says that all people mentioned during that meeting
were transferred to other offices. I do not think that anything turns
on this aspect. It is instructive that in the minutes relied on by Mr
Mangashe, there is no suggestion that any of the people identified
as
being members of COPE were to be dismissed. The mayor simply
requested them to be transferred to other sections, for reasons
of
loyalty and trust. The arbitrator therefore misdirected herself in
relying on this aspect as part of her reasoning why the dismissal,
was substantively unfair. The Labour Court did not uphold this
finding, correctly so, in my view.
[32]
Mr Mangashe also places much reliance on
the evidence of Mr Owen that he had been instructed by the management
of the municipality
to make his appointment happened so as to suggest
that because his appointment was politically motivated, so was his
dismissal..
Even assuming in his favour that the above assertions are
correct, the fact remains that he did not qualify for the position he
was appointed to. When Mr Owen was instructed to make his appointment
happened, it was on the understanding that he met all the
requirements for the position. I did not understand Mr Mangashe to
suggest that the municipality wanted to appoint him at all costs,
even if he did not meet the basic requirements for the position.
[33]
It is not clear from the judgment of the
Labour Court why it remitted the matter to the SALGBC for fresh
arbitration. This is because
the judgment is silent on the
considerations which could have impelled the learned Judge to reach
that conclusion. In light of
all the evidence before it, I am of the
view that the Labour Court was well placed to substitute its own
decision to that of the
arbitrator, by considering an appropriate
sanction, instead of remitting the matter for fresh arbitration.
[34]
In light of the common cause fact that Mr
Mangashe did not have a matric certificate – a requirement for
the position –
there was no purpose in referring the matter for
fresh arbitration. This is so because of Labour Court’s finding
that the
dismissal of Mr Mangashe was procedurally and substantively
fair. In my view, the Labour Court misdirected itself in this regard,
and this Court is entitled to interfere with its decision and
substitute it with one this Court deems just in the circumstances.
I
turn now to consider the appropriate sanction.
[35]
Dishonesty concerning one’s
qualifications constitutes a serious misconduct, and has often
attracted the sanction of dismissal.
This is so because trust is at
the core of employment relationship. As indicated earlier, there was
no doubt that Mr Mangashe,
right from the very beginning,
misrepresented to the municipality that he had the necessary formal
qualification for the position
he was appointed to. Counsel for the
municipality cited examples where the Labour Court had confirmed the
dismissal of employees
for dishonesty. See
Hoch
v Mustek Electronics(Hoch)
,
[3]
Hullet v Bargaining Council
,
[4]
Standard Bank v CCMA
,
[5]
and
Metcash v Fobb
.
[6]
[36]
In
Hoch
,
above, the Labour Court, faced with a situation where an employee was
dismissed for falsely representing to the employer that
she possessed
certain qualifications in education and accounting. The Labour Court
confirmed the dismissal and did not consider
her long service and the
fact that the qualifications were irrelevant to her position. The
Court observed that the employer was
entitled to consider that the
employee’s dishonesty was serious so as to irreparably damage
the unique trust relationship
enjoyed by her.
[7]
Similarly, in the present case, I do not see any mitigating factors
that outweigh the option of dismissal as an appropriate sanction.
[37]
To sum up. The Labour Court misdirected
itself in remitting the matter for fresh arbitration and in not
considering the sanction,
which under the circumstances, could only
be that of dismissal. As a result, the appeal has to succeed. With
regard to costs, I
am of the view that the considerations of equity
and law dictate that no order as to costs should be made.
[38]
In the result, the following order is made:
1.
The appeal is upheld;
2.
The order of the Labour Court is set aside
and in its stead the following is substituted:
‘
1.
The award issued by the arbitrator is reviewed and set aside;
2. The dismissal of the third
respondent was substantively and procedurally fair;
3.
No order is made as to the costs.’
3.
There is no order as to costs.
TM
Makgoka AJA
I
agree
Waglay
JP
I
agree
Coppin
JA
APPEARANCES:
FOR THE APPELLANT:
Adv. F. Le Roux
Instructed
by Smith Tabata Inc. FOR THETHIRD RESPONDENT:
In person
[1]
A break-away political party formed
mainly by former leaders and members of the African National
Congress (ANC) after the party’
s 52
nd
Conference in Polokwane in December 2007.
[2]
The erstwhile
military
wing of the ANC.
[3]
Hoch v Mustek Electronics
[1999] 12 BLLR 1287 (LC).
[4]
Hulett Aluminium (Pty) Ltd v
Bargaining Council for the Metal Industry and Others
[2008] 3 BLLR 241 (LC).
[5]
Standard Bank of South Africa Ltd
v CCMA and Others
[1998] 6
BLLR 622 (LC).
[6]
Metcash Trading Ltd t/a Metro Cash
& Carry v Fobb and Others
[1998]
11 BLLR 1136
(LC).
[7]
Hoch
at
para 40.