About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2017
>>
[2017] ZALAC 13
|
|
MEC for Education (North West Provincial Government) v Makubalo (JA37/2012) [2017] ZALAC 13 (3 February 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 37/2012
In the matter between:
MEC
FOR EDUCATION (NORTH WEST PROVINCIAL
Appellant
GOVERNMENT)
and
J
M K MAKUBALO
Respondent
Heard:
23 November 2016
Delivered: 3
February 2017
Summary: Respondent, a school
principal, dismissed for the sexual assault of fellow teacher and
financial mismanagement of school.
At first arbitration hearing
respondent’s dismissal found substantively unfair and
respondent retrospectively reinstated
into his employment with the
appellant. On review Labour Court set aside arbitration award and
remitted matter to Education Labour
Relations Council for hearing
de
novo
before another arbitrator. Following second arbitration
hearing, respondent’s dismissal found substantively fair.
Respondent
sought review of the second arbitration award. On review -
Labour Court set aside arbitration award and substituted it with a
finding
that his dismissal was substantively unfair with respondent’s
retrospective reinstatement ordered. On appeal - appeal upheld.
Orders of Labour Court set aside and substituted with order that
review application dismissed with no order as to costs.
Coram:
Waglay JP, Ndlovu JA
et
Savage AJA
JUDGMENT
SAVAGE AJA:
Introduction
[1]
This
is an appeal, with the leave of the Court
a
quo
,
against the judgment of the Labour Court (Francis J) in which an
arbitration award issued by the Education Labour Relations Council
(ELRC) on 10 September 2009 was set aside on review and the
respondent, Mr J M K Makubalo, retrospectively reinstated into his
position as school principal with full back pay and costs. The
respondent initially instituted a cross-appeal against the judgment
but subsequent to the set down of the appeal in November 2015,
withdrew his cross-appeal.
[2]
The
respondent commenced teaching in 1983 and was appointed as principal
of Bafokeng High School on 1 May 1998. On 27 March 2003,
he was
dismissed by the Department of Education in the North West province
following a disciplinary hearing at which he was found
to have
contravened both s17(1)(b) of the Employment of Educators Act 77 of
1998 (EEA) in that he had sexually assaulted a fellow
teacher, Ms
Dora Monegi; and s18(1)(b) in that he had mismanaged the finances of
the school. Aggrieved with his dismissal, the
respondent referred a
dispute to the ELRC. On 26 July 2005, his dismissal was found by an
arbitrator of the ELRC to be unfair and
he was reinstated into his
employment with the appellant. The appellant successfully sought the
review and setting aside of the
first arbitration award in the Labour
Court and the matter was referred back to the ELRC for a hearing
de
novo
before another arbitrator.
[3]
The
matter was initially set down for a
de
novo
hearing on 12 July 2006. After the respondent had failed to attend
the arbitration hearing, the matter was dismissed. In due course,
the
decision to dismiss the dispute was rescinded and the matter
proceeded before the arbitrator who found the dismissal of the
respondent to have been substantively fair. The arbitrator, having
had regard to the evidence before him, found that the respondent
had
sexually assaulted Ms Monegi during visits to her home in 1998 and
2000. The evidence showed that at the end of the year party
in
December 1998, the respondent had held Ms Monegi by the cheeks,
kissed her and touched her genitals in the lounge in front of
other
guests. In the 2000 incident, the respondent was found to have
“
grabbed
Monegi around her buttocks and attempted to drag her out of the
kitchen
”.
The arbitrator found that in conducting himself in the manner he had,
the respondent had abused his position of power as
principal over Ms
Monegi as his subordinate.
[4]
Turning
to the complaint of financial mismanagement, the arbitrator accepted
the “
clear
unwavering testimony
”
that the respondent had given unauthorised loans to staff and that he
had committed serious irregularities in the manner
he had handled
school funds. The arbitrator found that the disciplinary rules
breached were valid and reasonable, were known by
the respondent and
were consistently applied by the appellant.
[5]
Given
that the respondent’s serious misconduct had irretrievably
severed the trust relationship, the sanction of dismissal
was
determined to be appropriate.
Judgment of Labour Court
[6]
Aggrieved
with his dismissal and the outcome of the arbitration proceedings,
the respondent applied for the review and setting aside
of the award
in the Labour Court. While noting that there were “
some
deficiencies in the
[arbitration]
record
”,
the Court correctly took a practical view that, for review purposes,
the matter could be dealt with in spite of these deficiencies.
The
award was found to have been “
well
reasoned
”
with it “
clear
from the transcript of proceedings that the
[respondent]
had
sexually assaulted Monegi
”.
The Court found however that the arbitrator had failed to deal with
the common cause facts which included “
the
settlement reached before the Queen Mother
”
on 11 June 2002 when, according to Ms Monegi, the Queen asked the
respondent if the allegations against him were true, and
he
acknowledged his wrongdoing and apologised. The respondent’s
version at arbitration was that he had denied the allegations
in the
meeting with the Queen Mother but told Ms Monegi to “
please
forgive me if I have wronged you in the past and I forgive you if you
have wronged me in the past
”.
In the pre-arbitration minute, the parties recorded that the “
the
allegations of sexual assault or harassment were discussed and
amicably resolved
”.
This led the Labour Court to find that in light of the parties
exchanging apologies and agreeing that the matter had been
amicably
resolved, the arbitrator “
should
have found that the matter was settled between Monegi and the
[respondent]”.
[7]
In
addition, the Labour Court found that the arbitrator had not applied
his mind to the issue of inconsistency when the parties
had agreed in
the pre-arbitration minute that no disciplinary steps were taken
against a teacher by the name of Mr Khutswane following
allegations
that he had sexually assaulted female learners in 1996. The Court
took the view that the arbitrator “
could
not go beyond the agreed facts on the issue of inconsistency as
agreed in the pre-arbitration minute
”.
In doing so, the arbitrator was found to have exceeded his powers
when he should have found that the appellant had acted
in an
inconsistent manner. The Court found that the arbitrator should have
set aside the Department’s findings on the basis
that the
matter was settled and given the lack of consistency, on the part of
the Department, in applying discipline among its
employees.
[8]
The
Labour Court took no issue with the arbitrator’s finding that
the respondent had acted in contravention of s18(1)(b) of
the EEA
with “
clear
evidence of the existence of financial mismanagement at the school
”.
This misconduct had however not been shown to be of a sufficiently
serious nature to warrant dismissal. The Labour Court,
therefore,
ordered that the respondent be retrospectively reinstated into his
position with full back pay and costs.
Condonation
[9]
The
appellant filed an incomplete record in the appeal to this Court
against the judgment and orders of the Labour Court and on
3 November
2015, the appeal was, for this reason, struck from the roll.
Thereafter the respondent withdrew his cross-appeal. Following
settlement discussions between the parties, the appellant’s
attorneys sought to obtain a copy of the record of the arbitration
proceedings, which was missing from the Labour Court’s file;
and was ultimately provided by the respondent’s attorneys.
The
appellant seeks that this Court condones the appellant’s delay
of more than 10 months in filing a complete appeal record.
The
respondent opposes the application for condonation on the basis that
an extensive period of time elapsed before the record
was filed, with
portions of the delay not explained by the appellant.
[10]
Rule
5(8) of the Labour Appeal Court Rules requires that the record in an
appeal be delivered within 60 days of the date of the
order granting
leave to appeal. Given that both an appeal and a cross-appeal were
initially before this Court, both parties were
obliged to ensure that
the record was filed in the appropriate manner and in accordance with
provisions of Rule 5(8). There is
no dispute that the first record
filed was incomplete. It follows that with no proper appeal record
before the Court, the appeal
in terms of Rule 5(17) is deemed to have
been withdrawn unless a consent to extension of time has been granted
by the respondent
and, if refused, a substantive application is made
to the Judge President in chambers for the extension of time.
Following the
withdrawal of the cross-appeal, no consent or
permission was granted either by the respondent or the Judge
President to extend
the period within which the record could be
filed.
[11]
In support
of its application for condonation
the
appellant relied on the fact that the transcript of the arbitration
proceedings was missing from the Labour Court’s file
and was
ultimately obtained from the respondent’s attorneys in
circumstances in which it transpired that it had been in their
possession but had not been made available by them to the appellant.
Furthermore, the appellant recorded the unsuccessful attempts
made
over an extended period of time to settle the matter and relied on
these negotiations to explain a period of the delay in
filing a
proper record.
[12]
It is trite that the Court has
a discretion to condone the late filing of the record and that in
exercising that discretion it must
consider the degree of, and
reasons or explanation for, the delay; the prospects of success; the
prejudice that the parties will
suffer if condonation is granted or
refused; and whether it is in the interest of justice to grant the
condonation sought.
[1]
In
NEHAWU and Others v
Charlotte Theron Children’s Home,
[2]
this Court held that in an exceptional case, even where a delay is
substantial, the explanation for it less than adequate and the
prospects of success indeterminable, it is sometimes nevertheless in
the interest of justice to grant condonation.
[13]
Although the imperative is
placed upon the speedy and expeditious resolution of disputes, each
application must be decided on its
own facts. While it is so that a
full explanation was not provided by the appellant for each portion
of the delay in filing the
complete record, it is material that the
initial appeal record, although inadequate, was filed within the
60-day period. Furthermore,
the respondent’s attorneys must
take some responsibility for the fact that, although they were in
possession of the missing
transcript, no steps were taken to alert
the appellant or his attorneys to this fact or provide this
transcript timeously. The
extended settlement discussions which took
place in the matter provided an adequate explanation for portions of
the delay given
that such discussions had the potential to resolve
the matter finally. There is, in addition, little before this Court
to suggest
that the respondent was prejudiced unduly by the
appellant’s delay in filing a complete record.
[14]
Having regard to the extent of
the delay, the explanation provided for it, issues of prejudice and
the prospects of success, I therefore
consider it to be in the
interest of justice that the late filing of the complete record be
condoned and that the appeal be reinstated.
Evaluation
[15]
In is
trite that in its review of an arbitration award the Labour Court is
required to determine whether the decision reached by
the arbitrator
was one that a reasonable decision-maker could not reach.
[3]
[16]
The
Labour Court concurred with the arbitrator that it was “
clear
from the transcript of proceedings that the
[respondent]
had
sexually assaulted Monegi”.
Having
reached such a finding, s17(1)(b) of the EEA mandates that:
‘
17(1)
An educator must be dismissed if he or she is found guilty of
–
…
(b)
committing an act of sexual assault on a learner, student or the
employee…’.
[17]
The
Labour Court diverged from the arbitrator’s finding that
dismissal was appropriate on three bases: that the pre-arbitration
minute had recorded that the sexual assault dispute had been amicably
resolved between the respondent and Ms Monegi before the
Queen
Mother; there had been an inconsistent application of discipline
insofar as another teacher had in 1996 not been disciplined
for
allegations of sexual assault; and the sanction of dismissal for
financial mismanagement was not appropriate.
[18]
In
NUMSA
and Others v Driveline Technologies (Pty) Ltd and Another,
[4]
this Court recognised a pre-trial agreement as –
‘…
a
consensual document which binds the parties thereto and obliges the
court (in the same way as the parties’ pleadings do)
to decide
only the issues set out therein. In particular, a party who agrees to
claim
only
limited relief would be bound by his agreement (Shoredits
Construction (Pty) Ltd v Pienaar NO & others
[1995]
4 BLLR 32
(LAC)
at
34C–F
).”
”
[19]
Although
the pre-arbitration minute in this matter recorded that the issue of
sexual assault had been amicably resolved, the respondent’s
evidence at arbitration did not accord with the contents of the
minute signed. On his version, he denied the allegations of sexual
misconduct in the meeting with the Queen Mother and asked Ms Monegi
only to “
please
forgive me if I have wronged you in the past and I forgive you if you
have wronged me in the past
”.
The testimony of the respondent was that he had not sexually
assaulted Ms Monegi and that the pre-arbitration minute did
not
evince an admission that he had done so. In the circumstances, the
pre-arbitration agreement stating that the matter was settled
between
the appellant and Ms Monegi was according to the appellant not a
settlement that related to the complaint that was before
the
arbitrator. Mr
Mathipa
in his submissions for the respondent in this appeal did not contend
differently. The arbitrator cannot therefore be faulted for
finding
that the pre-arbitration minute as it stood did not exclude the
hearing of the charge that the respondent had sexually
assaulted Ms
Monegi on two occasions.
[20]
It
stands to be noted that even had there been a resolution of the issue
between the respondent and Ms Monegi, workplace rules regulate
the
standard of conduct required within the context of the employment
relationship. An employer is therefore entitled to take disciplinary
action against an employee whose conduct falls short of such rules or
standards. An amicable resolution of a dispute between two
employees
does not in itself resolve the workplace misconduct from the
perspective of an employer, nor does it prevent the employer
from
taking disciplinary action against the employee for such misconduct.
[21]
Turning
to the issue of consistency, the respondent takes issue with the fact
that although a complaint was lodged with the South
African Council
of Educators (SACE) against Mr Khutswane, no disciplinary action was
taken against Mr Khutswane concerning allegations
in 1996 that he had
sexually assaulted female learners.
[22]
In
SACCAWU
and Others v Irvin and Johnson Ltd,
[5]
this Court determined disciplinary consistency to be the hallmark of
progressive labour relations with the “parity principle”
requiring that every employee must be measured by the same standards.
While discipline is not to be capricious and any perception
of bias
must be absent, it is to be individualised with the unique facts and
circumstances relevant to each matter being evaluated.
[23]
In
Absa
Bank Limited v Naidu and Others,
[6]
this Court stated that while the parity principle is an important
factor to take into account in the determination of the fairness
of a
dismissal –
‘
it is
only a factor to take into account
…[and]
is
by no means decisive of the outcome on the determination of
reasonableness and fairness of the decision to dismiss
…
the
fact that another employee committed a similar transgression in the
past and was not dismissed cannot, and should not, be taken
to grant
a licence to every other employee, willy-nilly, to commit serious
misdemeanours, especially of a dishonest nature, towards
their
employer on the belief that they would not be dismissed. It is well
accepted in civilised society that two wrongs can never
make a right.
The parity principle was never intended to promote or encourage
anarchy in the workplace
.’
[7]
[24]
The
respondent was aware as to the seriousness of his misconduct borne
out by his own involvement in the referral of the complaint
against
Mr Khutswane to SACE. His misconduct in sexually assaulting a
colleague more than once and on different occasions, was
of a serious
nature, more so given his position of authority and responsibility as
school principal. S17(2) of the EEA obliged
the employer to institute
disciplinary proceedings against the respondent:
‘
17(2)
If it is alleged that an educator committed a serious misconduct
contemplated in subsection (1), the employer
must
institute disciplinary proceedings in accordance with the
disciplinary code and procedures provided for in Schedule 2.’
[25]
Although
the EEA was not in force at the time of Mr Khutswane’s alleged
misconduct, the appellant’s failure to take
action against him
does not permit the respondent to profit from a reliance on the
principle of parity and disciplinary consistency.
This is more so
where on the face of it the failure to discipline Mr Khutswane
appears to have been manifestly wrong.
[8]
Were the respondent to be entitled to rely on the failure to
discipline Mr Khutswane to avoid the consequences of his own
misconduct,
this would have the result that no subsequent dismissal
for sexual assault within the workplace would be fair given the past
failure
to discipline Mr Khutswane. Such a finding would be
manifestly unjust, having regard to the nature of the misconduct and
the workplace
within which it was committed, and would be contrary to
the provisions of the EEA.
[26]
It
follows that there existed a fair and objective basis for taking
disciplinary action against the respondent and his reliance
on the
inconsistent application of discipline as a basis on which to contend
that his dismissal was unfair is unfounded.
[27]
In
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others,
it
was emphasised that –
‘
In
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given the power to
consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving at a decision
a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must consider all relevant
circumstances.’
[9]
[28]
On
the material before the arbitrator, the arbitration award fell within
the ambit of reasonableness required. The respondent’s
misconduct was of such a serious nature as to make continued
employment intolerable. The arbitrator properly applied his mind to
the appropriateness of the sanction in finding the dismissal of the
respondent to have been fair and the Labour Court erred in
finding
differently.
[29]
In
the circumstances, the appeal must succeed. Having regard to
considerations of law and fairness, there is no reason as to why
costs should be ordered in this matter.
Order
[30]
In
the result, an order is made as follows:
1.
The
application for condonation of the late filing of the appeal record
is granted and the appeal is reinstated.
2.
The
appeal succeeds with no order as to costs.
3.
The
order of the Court
a
quo
is set aside and replaced as follows:
“
The
application to review and set aside the arbitration award issued on
10 September 2009 under case number PSES541-03/04NW is dismissed
with
no order as to costs.”
_________________
Savage AJA
Waglay JP and Ndlovu JA agree.
APPEARANCES:
FOR THE APPELLANT:
Mr M G Heitge
Instructed by the State Attorney,
Mafikeng
FOR RESPONDENT:
Mr M K Mathipa
Instructed by Lebea
& Associates Attorneys
[1]
South African Post
Office Ltd v Commission for Conciliation Mediation and Arbitration
and Others
[2012]
1 BLLR 30
(LAC); (2011) 32 ILJ 2442 (LAC);
NEHAWU
obo Mafokeng and Others v Charlotte Theron Children’s Home
[2004] 10 (BLLR) 979 (LAC).
[2]
[2004] 10 (BLLR) 979
(LAC).
[3]
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) at paras 105 and 110.
[4]
[2007]
ZALC 66
;
[2000]
1 BLLR 20
(LAC)
at para 16.
[5]
(1999) 20 ILJ 2302 (LAC)
[6]
[2015]
1 BLLR 1
(LAC); (2015) 36 ILJ 602 (LAC) at para 42.
[7]
Absa
Bank Limited v Naidu and Others
(supra)
at para 42.
[8]
SACCAWU
v Irvin & Johnson Ltd
[1999] 8 BLLR 741 (LAC).
[9]
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR
158
(CC)
at
para 79.