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[2019] ZALAC 51
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Segona v Education Labour Relations Council and Others (JA163/17) [2019] ZALAC 51; [2019] 12 BLLR 1327 (LAC) (27 June 2019)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA163/17
In the matter between:
MAPITSI GLADYS
SEGONA
Appellant
and
THE EDUCATION LABOUR
RELATIONS
COUNCIL
First
Respondent
E
MAREE
Second
Respondent
MPUMALANGA DEPARTMENT
OF EDUCATION
Third Respondent
Heard:
9 May 2019
Delivered:
27 June 2019
CORAM: Waglay JA,
Coppin JA et Savage AJJA
JUDGMENT
COPPIN JA
[1]
This is an appeal against the judgment of the Labour Court
(Beckenstrater AJ), in
which an application brought by the appellant
to review and set aside an award of the second respondent (“the
arbitrator”),
acting under the auspices of the first respondent
(“the ELRC”), was dismissed. Leave to appeal to this
Court was granted
by the Labour Court, albeit on a very tenuous
ground. None of the respondents opposed the review application in the
Labour Court,
nor did they participate in the appeal.
[2]
The award relates to a dispute that the appellant had with her
employer, the third
respondent (“the Department”), after
it had demoted her as a sanction following a disciplinary hearing
where she had
been found guilty of multiple charges relating to the
storing of computers, the under-banking of school funds, and monetary
claims
she allegedly submitted. Although the arbitrator found that
certain of these charges were not proved by the Department, her
ultimate
finding was that the appellant had failed to prove that the
Department had committed an unfair labour practice by demoting her
following the disciplinary hearing.
[3]
Prior to her demotion, the appellant was employed by the Department
as principal of
the Langalibalele Primary School in Mpumalanga. She
was demoted to the position of deputy – principal at another
school.
[4]
During December 2008, the appellant was charged with 17 counts of
misconduct. In charge
1, it was alleged that the appellant had
contravened section 18(1)(f) of the Employment of Educators Act
[1]
(“the EEA”) in that she “unjustifiably prejudiced
the administration, discipline or efficiency of the Department
of
Education, office of the State or school” by taking computers
donated to her school and keeping them at her home for a
period of
more than two years. Charge 2 related to an alleged false statement
that the appellant made concerning a driving assistant’s
possession of a driver’s licence. Charges 3 to 5 (inclusive)
related to the alleged contravention of section 18(1)(cc) of
the EEA,
in particular, to various amounts allegedly under-banked by the
appellant and charges 7 to 17 related to amounts allegedly
dishonestly claimed by the appellant from the school or the school’s
governing body.
[5]
A disciplinary hearing in respect of those charges was held early in
2009 and the
chairperson of disciplinary hearing handed down his
findings on 4 May 2009. He found the appellant guilty of 15 of the 17
charges,
that is all the charges, bar charges 2 and 7. The employer
called three witnesses and relied,
inter alia
, on an
investigation report compiled in respect of those charges, with
supporting documents. The appellant, who was legally represented,
did
not give evidence and her representative was content with making
submissions. The appellant was informed by written notice
on 4 May
2009 of the chairperson’s sanction. The relevant part of the
notice reads: “after taking into consideration
all arguments
during the hearing and also mitigating and aggravating factors, I
pronounce my sanction as follows: – that
you are demoted from
the position of being the principal of Langalibalele Primary School.
– That you should be placed at
the level of deputy principal,
which is equivalent to salary level PL. 3 – That you be removed
from Langalibalele Primary
School and replaced in another school or
institution where you will be supervised thoroughly.” The
notice also informed the
appellant of her right to appeal to the MEC
of the Department.
[6]
The appellant duly exercised her right to appeal. She made written
representations to the
appeal authority, essentially, denying that
the charges had been proved at the disciplinary enquiry. In the
concluding paragraph
of her written representations, she states: “we
believe that the chairperson can only arrive at the finding after
evidence
is brought to him to examine. In this instance, no evidence
documentary or otherwise was brought before the chairperson. We will
dispute all the allegations of the employer because in the absence of
proof, they remain as such, allegations. We believe that
the
repetition of the allegations by the employer through its witness
does not amount to proof. The presiding officer, therefore,
lacks
proven facts from which to infer guilt. He erred by finding me guilty
on all the charges. We believe our right to a fair
trial [hearing]
has been highly compromised by the procedure that was used to conduct
the hearing. It is only through a fair procedure
that you can arrive
at a just conclusion. Since the procedure was not fair the result
cannot be fair. The desired outcome of the
appeal is that both the
findings and sanction of demotion be set aside.”
[7]
By letter dated 13 April 2010 the MEC of the Department informed the
appellant that
her appeal had been unsuccessful. The letter,
inter
alia,
states: “The evidence before me shows that you and
your representative did not challenge the testimony presented by the
employer
witnesses, especially the first witness, and the only
inference to be drawn from this action is that you were in agreement
with
his testimony.” The first witness at the disciplinary
hearing was Mr Kgomphiri., finance manager of the region who had been
appointed to investigate the financial records of the school. He gave
detailed evidence of the findings of the investigative team.
The two
other witnesses were Mr Masilela of Asset Management who had also
been delegated to investigate the circumstances around
the
acquisition and storing of the computers, and a Ms Fankomo,
chairperson of the school governing body (“SGB”) of
Langalibalele Primary School.
[8]
Having been unsuccessful in the internal appeal, the appellant
referred her dispute
with the Department to the ELRC in terms of the
Labour Relations Act
[2]
(“LRA”).
In the referral form, she indicated that the dispute was about
misconduct and she wanted the decision of the
MEC of the Department
to be reversed. The arbitrator ruled subsequently that the dispute
was about an unfair labour practice and
that the appellant bore the
onus
to prove that by demoting her, the employer had committed an unfair
labour practice.
[9]
At the ensuing arbitration before the arbitrator, the appellant gave
evidence in her
defence of the charges. She explained,
inter alia
,
how she came to store the computers at home, testifying, in essence,
that it was with the knowledge and consent of the SGB and
for their
safekeeping. She further denied under banking monies and that she was
the accounting officer, and denied being responsible
for receiving
and banking monies of the school. She also denied making the claims
that formed the bulk of the charges that she
had been found guilty of
(i.e. charges 7 to 17). The appellant then called a witness, a Ms
Maria Madibata, to corroborate her version
concerning the storing of
the computers. The employer, in turn, called Mr Kgomphiri. His
testimony was materially the same as at
the disciplinary hearing; and
he again produced the investigation report and some of the supporting
documentation that he had relied
on at the disciplinary hearing.
[10]
It appears from the arbitrator’s award, that having analysed
the evidence, she found that
the appellant was guilty of the charge
relating to the computers (i.e. charge 1) and the charges of
under-banking (i.e. charges
3 to 5), all of which involved an element
of dishonesty. The arbitrator considered that the sanction of
demotion had been fair
in the circumstances, since even a dismissal
would have been warranted. The arbitrator further concluded that the
appellant had
failed to prove, that in demoting the appellant after
she had been found guilty of the charges at the disciplinary hearing,
the
employer had committed an unfair labour practice. The arbitrator,
consequently, dismissed the appellant’s claim.
[11]
As a result, the appellant brought an application in the Labour Court
to review and set aside
part of the arbitrator’s award and
requested the Labour Court specifically to substitute the impugned
part of the award with
such a ruling as the Labour Court “deems
fit”. The application was not opposed. The appellant relied on
various grounds
under the general rubric that the arbitrator’s
award was not one that a reasonable decision-maker would make. She
supplemented
the grounds of her review by way of a supplementary
founding affidavit. The appellant averred that the arbitrator
misconstrued
the dispute as one of unfair labour practice, whereas it
was about misconduct. The appellant submitted that the arbitrator had
committed a gross irregularity by placing the onus of proof on the
appellant. She alleged that this “offended against both
the
principles which are settled in our law that a person is regarded as
innocent until proven guilty” and that “he
who alleges
must prove”. The appellant alleged that the true issue that had
to be determined by the arbitrator was whether
the employer (the
Department) had authority to charge her with misconduct and if so,
whether the findings of the Department concerning
those charges were
“substantially and procedurally fair”. In addition, the
appellant raised several other grounds relating
to the arbitrator’s
findings and concerning the evidence she gave at the arbitration
hearing, including alleged errors of
law and the fact, and of an
alleged failure to take into account relevant evidence given in the
arbitration concerning the charges
of under-banking.
[12]
The Labour Court rejected all of the grounds raised by the appellant
and dismissed the application.
The appellant then applied to the
Labour Court for leave to appeal to this Court. It appears from the
judgement of the Labour Court
on the application for leave to appeal
that the appellant relied on three grounds: the nub of the first was
that the employer led
no evidence in respect of charge 1 at the
arbitration and therefore the appellant’s version ought to have
been regarded as
uncontested and to have resulted in a finding that
she was not guilty of the misconduct alleged in that charge. The
second and
third grounds relied upon related to the under banking
charges. The main point raised by her being that it could not be
found that
she was the accounting officer of the school and therefore
responsible for the banking.
[13]
Although the Labour Court found no merit in any of those grounds, it
nevertheless granted the
appellant leave to appeal to this Court in
respect of a finding made, namely, whether the appellant could be
said to be dishonest
on the say-so of the forensic auditor, Mr
Kgomphiri. According to the Labour Court, it may be that another
court find that the
arbitrator did not properly consider Mr
Kgomphiri’s statement, namely, that he did not say that the
appellant was dishonest,
and that the appellant should reasonably
only have been found guilty of negligence, rather than dishonesty in
respect of charges
3 to 5. But it is difficult to perceive how
negligence could be found on the facts. It was never the case of the
employer or of
the appellant that she had been negligent in
under-banking school funds. The appellant, in fact, denied under-
banking the monies.
[14]
It is trite that leave to appeal is only granted in respect of court
orders, or judgements, and
not in respect of the underlying findings
of fact.
[3]
In the present
matter, it is not clear at all how this finding, in respect of which
the Labour Court had granted leave, would impact
on the overall
conclusive finding that the arbitrator’s award fell within the
bounds of reasonableness, and, ultimately,
the Labour Court’s
order dismissing the review application. The appeal is thus
before us on a tenuous, if not legally
unsustainable, basis.
[15]
In any event, whether or not the appellant was dishonest concerning
the computers or the under-banking
is a matter of inference. The
Labour Court did not err in concluding that the application for
review was to be dismissed.
There was no
justification for interfering with the arbitrator’s award,
which was to the effect that the appellant had failed
to discharge
the
onus of proving that the
conduct of employer in demoting her, subsequent to finding her guilty
of, at least, charges one, three
and five, amounted to an unfair
labour practice.
[16]
While the arbitrator does mention in the award that the evidence
given by Mr Kgomphiri at the
disciplinary hearing and the report of
the chairperson of that hearing was not disputed at the arbitration,
the arbitrator and
the Labour Court appear to have overlooked another
important fact, namely, that the appellant did not testify at all at
the disciplinary
hearing – that despite the fact that a case
was made out against her that called for an answer.
[17]
Mr Kgomphiri’s evidence at the disciplinary hearing, concerning
the storing of the computers
and the over- and under-banking of
amounts, implicated the appellant in misconduct, but was not
challenged at all. His evidence
at the arbitration was consistent
with that he gave at the disciplinary hearing. He testified,
inter
alia
, that the investigators, which included him, interviewed the
appellant, and that she,
inter alia
, informed them that she
collected and deposited the school’s monies. She also ascribed
the under-banking to the fact that
they would spend some of the
monies collected before the balance was banked. She could not explain
the fact that receipt books
for 2006 were missing and the
investigation established that most of the money received for that
year was not banked and was unaccounted
for. In respect of the 2007
year, the investigation showed that the appellant collected or
received school funds which she never
banked.
[18]
The second witness at the disciplinary hearing, Mr Masilela, was only
briefly cross-examined
by the appellant’s representative
concerning his knowledge of the policy that forbade the storing of
computers at home, or
concerning the removal thereof. The essence of
his evidence, though, was that there was such a policy and that there
was no proof
that the SGB had given the appellant permission to store
the computers at her home. His evidence called for an answer. The
third
witness at the disciplinary enquiry, Ms Fankomo, who was
chairperson of the SGB of the school since 2005, testified that the
SGB
was not aware that computers had been donated to the school until
one parent informed them of it; they then reported the matter
to the
regional director who was also not aware of the donation and that
resulted in the matter being investigated. She also testified
that
they received a report from the investigators that the computers had
been donated, but were being stored at the appellant’s
house.
In January 2007, the SGB was shown computers that were still covered
in plastic, and even though they never uncovered them,
they were told
that the computers were dysfunctional. Ms Fankomo, also testified
concerning the appellant’s involvement in
the finances.
According to her, the appellant had presented cheques to her for
signature and sometimes she would sign blank cheques
for the
appellant at the latter’s request. Her cross-examination
appears to have been very brief; she was accused of being
untruthful.
This evidence and the version of Mr Kgomphiri belie the version of
the appellant at the disciplinary hearing that she
did not receive or
under-bank the school’s money.
[19]
The evidence given at the disciplinary hearing, as summarised in the
chairperson’s report,
clearly called for an answer from the
appellant, but such answer was not forthcoming at the disciplinary
hearing. Instead, the
appellant’s representative contended that
the evidence adduced by the employer was hearsay and should be
ignored. That contention
was correctly rejected. Further, it is a
trite principle of law that an adverse inference may be drawn against
a party who failed
to testify, if there was a case to be answered.
[4]
The inference to be drawn is that the party did not give evidence
because he, or she, did not stand to benefit from doing so and
he, or
she, might have prejudiced himself (or herself) by being subjected to
cross-examination.
[5]
The fact
that the appellant did not testify at the disciplinary hearing also
seems to have weighed heavily, and justifiably, with
the appeal
authority, namely, the MEC for Education in Mpumalanga.
[20]
In order for the appellant to have made out the case for unfair
labour practice, she was required
to also show that the employer was
not entitled to draw an adverse inference from her failure to testify
and to subject herself
to cross-examination at the disciplinary
hearing. The fact that she chose to give evidence at the subsequent
arbitration hearing
does not assist her in that regard.
[21]
Notwithstanding, the arbitrator subjected the evidence adduced for
both employer and the employee
at the arbitration to a thorough
analysis and came to the conclusion that a reasonable arbitrator
could have arrived at in respect
of the evidence given at that
hearing. The arbitrator also reasonably doubted the veracity of Ms
Madibata, particularly because
of its internal contradictions, but
went as far as giving the appellant the benefit of the doubt in
respect of certain of the charges
of misconduct she had been found
guilty of.
[22]
There is also no merit in the point raised by the appellant regarding
the arbitrator’s
characterisation of the dispute. The
arbitrator did not err in that regard. Section 191 of the LRA
recognises only two kinds of
dispute that may be referred to a
council such as the ELRC, namely, disputes about the fairness of a
dismissal and disputes about
an unfair labour practice. The
appellant’s dispute with the employer was most definitely not
one about an unfair dismissal,
but clearly one relating to her
demotion. In terms of section 186(2) of the LRA an “unfair
labour practice” is defined
as including unfair conduct by the
employer relating to the demotion of an employee. As for the
onus
of proof, it was for the appellant to prove the unfair labour
practice.
[6]
[23]
The Labour Court also subjected the arbitrator’s reasoning to
yet closer scrutiny and rightly
held that the award was one which a
reasonable arbitrator could have made.
[24]
In the result, the following order is made:
The
appeal is dismissed.
___________________________
P
Coppin
Judge
of the Labour Appeal Court
Waglay
JP and Savage AJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT: Adv.
Johria van den
Berg
Instructed
by Errol Ntuli Attorneys
FOR
THE RESPONDENTS: No
Appearance for the respondents
[1]
Act
76 of 1998.
[2]
Act
66 of 1995.
[3]
Neotel
(Pty) Ltd v Telkom SA Soc Ltd and Others
(605/2016)
[2017] ZASCA 47
(31 March 2017).
[4]
Bargaining
Council for the Furniture Manufacturing Industry Kwazulu-Natal v UKD
Marketing and Others
[2013] 2 BLLR 119
(LAC) paras 15-17.
[5]
See
previous footnote.
[6]
See
Department
of Justice v Commission for Conciliation, Mediation and Abitration
and Others
(2004) 25 ILJ 948 (LAC) para 73;
NEHAWU
obo Manyana and Another v Masege N O and Others
[2014]
ZALC JHB 124 (8 April/2014) para 36 and the case authorities cited
there.