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[2017] ZALAC 28
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Malungu and Another v Rand Water and Others (JA39/16) [2017] ZALAC 28 (18 May 2017)
Links to summary
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA 39/16
In
the matter between:
J
K
MALUNGU
First
Appellant
SAMWU
Second Appellant
and
RAND
WATER
First Respondent
FATEMAH
SHAIK
Second Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Third Respondent
Heard:
14 February and 29 March 2017
Delivered:
18 May 2017
Summary:
The employee was charged with four infractions and dismissed. A
commissioner found that the employee
was guilty of only two
infractions that did not justify a fair dismissal. On review the
Labour Court found that the employee was
guilty of a third infraction
and found that the dismissal was fair. On appeal the court found that
in terms of the disciplinary
code that had been properly proven, the
conduct of the employee did not constitute the third infraction and
upheld the appeal.
Coram:
Tlaletsi DJP, Landman JA, and Kathree-Setiloane AJA
Neutral
citation: Mhlangu and Another v Rand Water and Others (LAC 39/16)
JUDGMENT
LANDMAN
JA
[1]
Mr J K Malungu and SAMWU (the first and second appellants) appeal
against the judgment of the Labour Court (Lagrange J) delivered
on 4
September 2015 in terms of which an award of a Commissioner of the
Commission for Conciliation, Mediation and Arbitration
(the second
and third respondents) relating to the dismissal of the first
appellant by Rand Water (the first respondent) was reviewed
and the
sanction set aside and replaced with an award dismissing the first
appellant. The appeal is with leave of the court a quo.
Condonation
[2]
Leave to appeal was granted on 5 April 2016. This meant that the
record should have been filed by 5 July 2016. The appellants
filed a
notice of appeal on 26 April 2016. The appellants’ attorney
said that, in early May, he instructed his associate
to prepare the
record. She informed him that the last date for filing the record was
22 July. He accepted that this was correct.
The record was filed on
19 July 2016. The Registrar informed his associate that it was out of
time and should have been filed by
5 July. As regards the prospects
of success, the attorneys ask that the papers filed in support of the
application for leave to
appeal and the appeal be read as if they had
been attached to the application for condonation. He submitted that
the appellants
have good prospects of success. The delay in filing
the record is some 10 days.
[3]
Although the first respondent initially opposed the application for
condonation, the first respondent abandoned this when the
appeal was
called. It remains to consider whether the appellant has reasonable
prospects of success and it is to the merits that
I turn.
The
facts
[4]
The first appellant was employed by Rand Water as a mechanical
foreman. This is a senior position. He was charged with four
offences, found guilty and dismissed on 5 December 2012. The
Commissioner found that the first respondent had only proved that
the
first appellant was guilty on charges 2(b) and 2(c). This appeal also
concerns charge 2(d). It is desirable to set out charge
2 in its
entirety. It reads:
‘
(a) [You]
failed to provide an advice note for the removal of the following
items ie:
Hydraulic Jacks (7), generator (1),
grinders (2), and an impact wrench (1).
(b) You failed to provide the advice
note of the above items to procurement section to enable them to
source suppliers to quote
on these items;
(c) You failed to send the faulty
equipment i.e.:
Hydraulic Jacks (7), generator (1),
grinders (2), and an impact wrench (1) to the Electrical Section for
repairs.
(d) You submitted three quotations for
the installation of a sampling point at Zuurbekom well number 8 to
the procurement section
without involving the buyers in this
process.’
The
award on review
[5]
The court a quo was satisfied with the finding by the Commissioner
that the appellant was guilty of charges 2(b) and (c). The
court a
quo, however, found that the Commissioner had overlooked the
provisions of paragraph 6. 10. 1. 1 (d) of the Company’s
Procurement Policy (‘the policy’) and added that the
appellants’ representative at the arbitration had read out
this
provision in such a way that a reference to the buyer had been
omitted. The court a quo was satisfied that the appellant was
also
guilty on charge 2(d).
Evaluation
[6]
The first appellant’s case, on this point, is that he had
complied with the terms of the policy and that the policy did
not
require the involvement of the buyer in sourcing suppliers for
emergency work. This version was put to the first respondent’s
witness Mr Mogorosi, the forensic investigator. The Commissioner and
the witness were referred to the extract from the policy in
the first
appellant’s bundle and it was read into the record, correctly,
by the appellants’ legal representative. The
relevant page of
the policy is marked “Rev. No. 00”. Paragraph 6. 10. 1. 1
(d) reads:
‘
The
requestor can then source the market
and
adjudicate on a service provider and then request goods/services with
the selected service provider.’ (My emphasis. Note
that the
appellant was the requestor.)
[7]
On this version, the first appellant, as the requestor, was not
enjoined to involve the buyer in sourcing goods or services.
[8]
The court a quo did not refer to this extract (Rev. No. 00) from the
policy. Instead, it relied on the policy contained in the
first
respondent’s bundle that had also been referred to in evidence.
There the relevant page is marked “Rev No. 02”.
This is a
later version. Clause 6. 10. 1. 1 (d) reads as follows:
‘
The
requestor and buyer can then source the market
and
adjudicate on a service provider and then request goods/services with
the selected service provider’. (My emphasis.)
[9]
The difference in versions explains why the court a quo was of the
view that the appellants’ representative had admitted
reading a
crucial word in paragraph (d) of the Policy.
[10]
However, as Mr Matebese, who appeared for the appellants, pointed
out, the employer’s version marked “Rev No. 02”
itself states that it is effective as from 10 November 2012. This
means that this policy was not in force at the time the charges
against the first appellant were drawn on 5 April 2012. There may
have been a previous version in force but there is no evidence
as to
its content. This leaves us with the extract marked “Rev No.
00” upon which the first appellant relies. On the
basis of this
version of the policy, the first appellant was not required to
involve a buyer in the procurement process. This means
that the court
a quo’s finding that the first appellant should have been found
guilty on charge 2(d) is based on a misapprehension
and falls to be
set aside.
[11]
Mr Boda SC, who appeared for the first respondent, submitted that the
first appellant could still be found guilty on charge
2(d), if
construed broadly, because the procurement process was not instituted
in an emergency as the work had been done 20 days
before the process
was instituted and one supplier had provided the three quotations
required. These points may have been fruitfully
raised had the first
respondent lodged a cross-appeal, but in its absence, they may not be
taken into account.
Sanction
[12]
In considering the issue of the appropriate sanction, the court a quo
remarked at paragraph 26 that:
‘
In
considering the appropriate sanction, the arbitrator noted that both
charges 2(b) and 2(c) categorised as Schedule A offences,
amounting
to a failure to observe company policies and procedures. In terms of
the company’s own disciplinary code and grievance
procedure, an
employee guilty of such an offence may be formerly counselled or
issued with a warning. In the circumstances, she
held that [dismissal
for] committing a “Schedule A offence is not necessarily
appropriate”. She further accepted that
Mhlangu held a position
of trust but there was no indication that continuing the employment
relationship would be intolerable and
accordingly dismissal was not
appropriate as a sanction. For the same reason, there was no bar to
reinstatement as a remedy.’
[13]
The court quo remarked, inter-alia, in paragraph 27:
‘
The
arbitrator only found him guilty of charges 2(b) and (c) which
arguably were not serious enough to warrant dismissal on their
own.’
[14]
However, by finding that the first appellant was also guilty on
charge 2(d) the court reconsidered the sanction and decided
that the
dismissal was an appropriate sanction. Now that the charge 2(d) has
fallen away, I am of the view that the Commissioner’s
sanction
as regards charges 2(b) and (c) was a reasonable one, and it should
stand.
Costs
[15]
It seems to me that costs should follow the result.
Order
[16]
In the premises, I make the following order:
1.
Condonation for the late filing of the
record is granted and the appeal is reinstated.
2.
The appeal is upheld.
3.
The order of the court
a
quo
is amended to read:
‘
1.
The application to review and set aside the award of the third
respondent is dismissed.
2.
There is no order as to costs.’
4.
The first respondent is to pay the appellants’ costs of
the
appeal.
________________
AA
Landman
Judge
of the Labour Appeal Court
Tlaletsi
DJP and F Kathree-Setiloane concur in the judgment of Landman JA
APPEARANCES:
FOR
THE APPELLANTS:
Adv ZZ Matebese
Instructed by Maenetja Attorneys
FOR
THE FIRST RESPONDENT:
Adv F A Boda SC
Instructed by Cliffe Dekker Hofmeyer
Inc