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[2017] ZALAC 37
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Matatiele Local Municipality v Shaik and Others (DA3/2016) [2017] ZALAC 37; (2017) 38 ILJ 2280 (LAC); [2017] 11 BLLR 1090 (LAC) (13 June 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA 3/2016
In the matter between:
MATATIELE LOCAL
MUNICIPALITY
Appellant
and
RASHIDA SHAIK
(CARRIM)
First
Respondent
SOUTH AFRICA LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
COMMISSIONER MXOLISI
ALEX NOSIGQWABA
Third
Respondent
Heard: 10 November
2016
Delivered: 13 June
2017
Summary: An arbitrator
of the SALGBC held that the dismissal of an employee was void because
the disciplinary hearing was held later
than required by clause 6.3
of the Code and ordered the reinstatement of the employee. Held on
appeal that the LRA does not contemplate
an arbitrator remedying a
void dismissal. The three-month period commences when the municipal
official authorised to institute
disciplinary hearing becomes aware
of the alleged misconduct and the identity of the alleged
perpetrator. A disciplinary inquiry
‘proceeds’ when the
offending employee is supplied with the charges. The dismissal
was valid. The matter was
remitted to the bargaining council to
determine whether the dismissal was fair.
Coram: Tlaletsi
DJP, Ndlovu JA, and Landman JA
Neutral citation:
Shaik
v Matatiele Local Municipality
(LAC DA 3/2016)
JUDGMENT
LANDMAN JA
[1] Regrettably, our
colleague Ndlovu JA passed away after judgment had been reserved.
[2] Matatiele Local
Municipality, the appellant, appeals against a judgment of the Labour
Court (Basson J) delivered on 1 December
2015 that dismissed the
appellant’s application to review and set aside a decision of
Commissioner M A Nosigqwaba, acting
under the auspices of the South
Africa Local Government Bargaining Council, that the dismissal of Ms
Shaik (hereafter ‘the
employee’), was void and of no
force or effect and reinstating her with back-pay.
Background
[3] The employee was
employed by the appellant. On 15 February 2014, she informed the
General Manager (Corporate Services) by Short
Messages Services that
she would not be attending a meeting scheduled for 15-19 February.
The General Manager acknowledged receipt
of her communication. On 1
April 2014, the employee was suspended from her employment.
[4] The appellant decided
to charge the employee with six charges. On 14 May 2014, she received
the charges and a notice to attend
a disciplinary hearing on 21-22
May. But on 19 May, she was given a notice rescheduling the hearing
for 20 to 21 May. The employee
complained that she was not given
sufficient time to prepare her defence. The hearing was rescheduled
for 27-28 May but only proceeded
on 3 June and led to the dismissal
of the employee.
[5] The employee referred
a dispute to the Bargaining Council. At the commencement of the
subsequent arbitration hearing, the employee
raised six points
in
limine
. The most important one is that she was unfairly subjected
to a disciplinary hearing and that her dismissal was void as it was
held outside the time limit prescribed in terms of clause 6.3 of the
SALGBC Disciplinary Code Collective Agreement. This clause
reads:
‘
The employer
shall proceed forthwith or as soon as reasonably possible with a
disciplinary hearing but in any event not later than
three (3) months
from the date upon which the employer became aware of the alleged
misconduct. Should the employer fail to proceed
within the period
stipulated above and still wish to pursue the matter, it shall apply
for consideration to the relevant division
of the SALGBC.’
[6] The commissioner
agreed with the employee’s principal submission and found that
the dismissal was void and of no legal
effect. Although the employee
sought compensation, the commissioner ordered the municipality to
reinstate her with back-pay.
The judgment of the
court
a quo
[7] The court
a quo
:
(a)
found that an employer
could agree to limit its right to take disciplinary action against
employees.
(b)
found the code was
peremptory and that the appellant was bound by the limitation set out
in clause 6.3 of the code.
(c)
found that the
appellant was precluded from proceeding with the disciplinary hearing
as regards the employee until it has applied
for and received
condonation from the bargaining council.
(d)
found that the
appellant had not applied for condonation and that the dismissal was
void and of no legal effect.
(e)
rejected
the proposition in
Tsengwa
v Knysa Municipality and Another
[1]
(that declined to follow
Jacob
v City of Cape Town and Others
[2]
)
that a commissioner is restricted to considering the fairness of a
dismissal and could not decide on the validity of a dismissal.
(f)
dismissed the
appellant’s review application leaving the award intact.
Evaluation
[8] A bargaining council
exists for several well-defined purposes. One such purpose is to
remedy, by means of arbitration in accordance
with the LRA, disputes
concerning alleged unfair labour practices. The jurisdictional
threshold for a dispute about an unfair dismissal
is that the
employee must prove that he or she has been dismissed from
employment. Should an employee inform and persuade an arbitrator
that
his or her dismissal is invalid and of no legal effect, it means that
the employee has not been dismissed. Whatever actions
the employer
may have taken on its view that it has dismissed the employee,
including a ban on the employee entering the workplace,
there is no
dismissal. The result is that the arbitrator has no jurisdiction to
address the consequences of such a situation whether
by ordering
reinstatement, reemployment or awarding compensation. The employee
must seek a remedy in another forum ie. in a court
of law.
[9] What must be decided
in this case is whether the employee had been invalidly dismissed.
This requires, in the first place, an
analysis of clause 6.3 of the
code in order to determine whether it found application in the
circumstances of the case and, if
it was breached, the consequences
of the breach. But before doing so, it is necessary to consider why
the parties to the collective
agreement inserted this clause and what
its purpose was.
[10] The purpose of the
clause was clearly designed to ensure that municipal employees were
not to work under a threat of disciplinary
action for long periods.
In other words, discipline in the local government sector was
required to take place expeditiously. To
achieve this, a time limit
was set that could be extended with the permission of the bargaining
council.
‘
became aware
of the alleged misconduct ‘
[11]
The period commences, according to clause 6.3, when the municipality
is aware of the alleged misconduct. In
Samwu
Obo Dlamini and Others v Mogale City Local Municipality and
Another,
[3]
the Labour Court held that:
‘…
being
that “aware” must mean the point where the employer is in
the position to formulate and present a charge to the
employee. As a
matter of common sense and logic, this has to mean the existence of a
written document containing substantive allegations
capable of
sustaining a charge, if proven.’
[12] A municipal employer
may become aware of the alleged misconduct on the day that it is
committed but it may also become aware
of the misconduct sometime
later when it is discovered. But, tying this into the context of
proceeding with a disciplinary hearing,
it inevitably means that
awareness relates to the time that the municipal official or organ
authorised to institute disciplinary
hearing becomes aware of the
alleged misconduct (including where the official is made aware of the
allegations) and, importantly,
of the identity of the alleged
perpetrator. This will be a factual inquiry.
[13] The arbitrator
decided that the municipality became aware of the misconduct on 15
February 2014. This was when her supervisor,
a general manager, knew
of her failure to attend the meeting. But the commissioner records
that it was only in April that the details
of the employee’s
infractions were provided to the municipal manager who is responsible
for instituting disciplinary enquiries.
[14] However, even if 15
February 2014 is the date on which the three-month period began to
run, it is not necessarily decisive.
The sixth charge related to
gross misconduct in that the employee allegedly misled the Speaker of
the Municipal Council on 28 March
2014 about the lawfulness of the
municipal manager’s employment. Therefore, even if charges
relating to misconduct committed
on 15 February were to fall away,
the sixth charge, only commenced running from 28 March at the
earliest.
‘
proceed
forthwith’
[15] The employer was
obligated by clause 6.3 to “proceed forthwith or as soon as
reasonably possible with a disciplinary
hearing”. The Labour
Court has considered the meaning of “proceed” in several
judgments.
[16]
In
Independent
Municipal and Allied Trade Union Obo Dandala v Ekurhuleni
Metropolitan Municipality and Others
[4]
the Labour Court opined that:
‘
Proceeding
with a disciplinary hearing starts when the Municipal Manager
appoints a presiding officer. There can be no doubt in
my mind that
once a presiding officer is appointed an employer will be proceeding
with a disciplinary hearing. In my judgment,
the processes that
follow after the appointment of the presiding officer is all part of
proceeding with the disciplinary hearing
up to and including the
actual commencement of the sittings. Therefore, the relevant outer
date is the date on which the presiding
officer was appointed and not
the date on which the hearing sits as contemplated in clause 6.10.’
[17] I would respectfully
disagree with the proposition that “proceeding with a
disciplinary hearing starts when the Municipal
Manager appoints a
presiding officer.” The employee may not necessarily know when
this occurs. In my view, in keeping with
the context that an employee
is affected by a disciplinary hearing, a hearing proceeds only when
there is an external manifestation
of the municipality’s
intention to proceed with a hearing and this occurs when the charges
are formally furnished to the
alleged offending employee.
[18] On the facts of this
case, the charges were furnished to the employee on 14 May 2014.
[19] Even taking 15
February 2015 as the date that the municipality became aware of the
misconduct, the last day to proceed with
the disciplinary inquiry was
16 May 2014. The respondent was furnished with the charges and notice
to attend a disciplinary hearing
on 14 May 2014. Consequently, the
municipality complied with clause 6.3 of the code.
[20] The result is that
the respondent was validly dismissed. The award of the arbitrator
falls to be set aside. Whether she was
fairly dismissed is a matter
for an arbitrator to determine.
Costs
[21] Taking into account
the injunction to award costs according to law and fairness, I would
make no order for costs in this Court
and the court below.
Order
[22] I make the following
order:
1.
The appeal is upheld.
2.
The order of the Labour
Court is set aside and replaced with an order reading:
‘
(1) The
application to review and set aside the award of the third respondent
issued on 21 April 2015 under case number ECD051408
is granted and
the award is set aside.
(2) The matter is remitted to the
second respondent for arbitration, before another arbitrator, on the
issue whether the dismissal
of the first respondent was procedurally
and substantively fair.
(3) There is no order as to costs.’
3.
There is no order as to
the costs of the appeal.
______________________
A A Landman
Judge of the Labour
Appeal Court
APPEARANCES:
FOR
THE APPELLANT: Adv M Pillemer SC
Instructed
by Jafta Inc.
FOR
THE FIRST RESPONDENT: Adv De Wet SC (with him Adv Singh)
Instructed
by Cajee Setsubi Chetty Inc.
[1]
[2015] 8
BLLR 857 (LC).
[2]
[2014] 10
BLLR 1011 (LC).
[3]
Unreported
judgment delivered on 17 September 2014 under case number J
2245/2014 at para 46.
[4]
(JR
1026/15) [2016] ZALCJHB 247 (24 June 2016) at para 15.