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[2005] ZALCJHB 1
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Public Servants Association of South Africa obo Venter v Laka NO and Others (JR1223/02) [2005] ZALCJHB 1 (9 January 2005)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
JOHANNESBURG
CASE NO JR 1223/02
DATE 2005-01-09
In
the matter between
THE
PUBLIC SERVANTS ASSOCIATION
OF Applicant
SOUTH
AFRICA (on behalf of JJ Venter)
And
AP
LAKA
N.O. 1st
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
2nd
Respondent
BARGAINING
COUNCIL
DEPARTMENT OF LAND
AFFAIRS 3rd
Respondent
JUDGMENT
REVELAS,
J
:
[1]
The applicant, a trade union, acting on behalf of Mr JJ Venter, one
of its members, seeks
to set aside an award made by the first
respondent (“the arbitrator”) in terms whereof the unfair
dismissal dispute
referred to the second respondent (“the
council”), was dismissed. In addition, the applicant seeks to
substitute the
award with a finding that Mr Venter’s dismissal
by the third respondent (“the Department”) was unfair and
that
he be reinstated or compensated. The application for review is
brought out of time and the applicant has brought an application
for
condonation.
[2]
When Mr Venter was dismissed by the Department on 28 February 2001,
he had been in the employ
of the latter since 1 December 1976 as an
officer of the Public Service and at the time of his dismissal he
held the post of Deputy
Director: Internal Audit.
[3]
A disciplinary enquiry was held on 21 and 24 November 2000 into
several allegations of misconduct
with which Mr Venter was charged.
He was found guilty of three counts of misconduct. They were the
following:
1.
Insubordination, in that he failed to return a cell phone to the
Department and
kept it in his possession, despite an instruction from
the Department’s Human Resources director to return it. The
sanction
imposed for this charge of misconduct was a written warning
with counselling.
2.
The second charge was one of using information obtained in the course
of his
official duties for personal gain. The facts relied on in this
charge were, that the applicant attempted to obtain a 10% commission
fee on an amount of approximately R280 000.00 (unpaid value added
tax) which he discovered was owing (and later paid) by a firm
called
F Systems Technology, to the South African Revenue Services, as a
result of his discovery and report, and as part of his
official
duties. Also in respect of this charge, a warning and counselling was
imposed.
3.
Thirdly, Mr Venter was charged with fraud (in that, on or about six
occasions
over a period of twenty months’ between 21 October
1998 to June 2000, Mr Venter fraudulently presented the Department
with
claims for accommodation expenditure which exceeded the amounts
actually spent in respect of such expenditure. In other words Mr
Venter misrepresented his expenses incurred and defrauded the
Department during the aforesaid period in an amount of R7 455.00.
In
respect of this charge of misconduct the chairperson of the
disciplinary hearing imposed suspension without pay for three months.
[4]
The Director General of the Department felt that particularly the
third sanction imposed,
was “shockingly inappropriate”.
Mr Venter was invited to submit representations as to why he should
not be dismissed
or discharged from the Public Service in terms of
section 17 of the Public Service Act 103 of 1994, as amended (“the
PSA”),
in view of the seriousness of his actions.
[5]
The applicant (or “Union”) responded on 18 December 2000,
stating (briefly)
that it would be unfair to expect Mr Venter to
provide further reasons as to why he should not be dismissed as that
would constitute
“double jeopardy” or a second enquiry
for the same charge of misconduct. In the same letter it was pointed
out that
the chairperson or presiding officer followed a fair
procedure and a sanction in terms of the applicable disciplinary code
was
imposed.
[6]
In turn, the Department responded on 6 January 2001, stating that it
was normal practise
for all serious cases of misconduct to be
submitted to the Director-General (as indeed happened in this case
through an internal
memorandum) for a final decision on an
appropriate sanction and attention was drawn to the Department’s
view that in terms
of its own provisions, the disciplinary code
(referred to above) was only a guideline and could be departed from
in appropriate
circumstances.
[7]
The Department made the point, or submitted, that the request for
reasons from Mr Venter
as to why he should not be dismissed, did not
amount to a second enquiry, but a revision of the sanction imposed by
the chairperson.
The request for reasons was repeated in this letter.
[7]
The Union reiterated its concerns about the legality and fairness of
the Director-General’s
intervention in further correspondence,
and the Department presented Mr Venter with a final, third
opportunity to furnish reasons
as to why he should not be dismissed.
The Union stood by its view that the furnishing of such reasons would
indeed constitute an
unfair, second enquiry for the same misconduct.
[8]
On 20 February 2001, recommendations to the Director-General of the
Department, to the effect
that Mr Venter should rather have been
dismissed than suspended, were accepted. A letter form the Department
was then forwarded
to the Union advising that Mr Venter was dismissed
with effect from 1 March 2001.
[9]
The Union then referred a dispute to the second respondent (the
Bargaining Council), based
upon the allegation that the employer (the
Department) changed the sanction of the chairperson of the
disciplinary hearing (a suspension
of three months’ without
pay) to one of dismissal. A dispute concerning the interpretation of
a collective agreement was
also included.
[10]
The matter was set down for an arbitration hearing to be heard on 25
January 2001, after conciliation
had failed: Prior to the arbitration
hearing, the parties reached an agreement in terms of which no oral
evidence was to be lead
(Mr Venter had pleaded not guilty at the
disciplinary hearing but did not appeal against the three findings of
guilty) or the sanctions
imposed in respect of them.
[11]
The arbitrator found that in terms of section 17 of the PSA, the
Director-General was empowered to
interfere and that such
interference was not tantamount to a rehearing of Mr Venter’s
case.
[12]
The arbitrator further found that section 17 of the PSA should take
precedence over the negotiated
code and procedures for the Public
Service, despite the conflict between the Resolution of the
Bargaining Council on the one hand,
and the PSA on the other.
[13]
In addition the arbitrator held that that even if the intervention of
the Director-General amounted
to a re-hearing (which he did not find
was the case) such a re-hearing was admissible in the circumstances
of the case, and in
any event, Mr Venter had deliberately declined
the opportunity to state his case, when requested to do so when the
question of
sanction was revisited.
[14]
Finally, the arbitrator upheld the view that the sanction imposed by
the chairperson of the hearing
was inappropriate, given the
seriousness of the misconduct and found that dismissal was the
appropriate sanction in the circumstances.
[15]
The applicant on behalf of Mr Venter submitted that the arbitrator’s
award ought to be reviewed
on the basis that there was a defect in
the arbitration proceedings, or alternatively that the arbitrator did
not apply his mind
to the evidence before him and that his
conclusions were irrational or unjustifiable given the facts before
him. It was further
submitted, in the alternative, that the
arbitrator’s conclusions were grossly unreasonable, in view of
his reasoning that
when there was a conflict the Code and Procedures
and the PSA, the Act should prevail.
[16]
The first question to be determined in this case is whether section
17 of the PSA indeed empowered
the Director-General to act as he did,
given the existence of the collective agreement. If answered in the
affirmative, the next
question is whether dismissal was the
appropriate sanction or whether the dismissal was fair.
[17]
According to the Department, the collective agreement had no legal
effect on section 17 of the PSA,
since the latter was an Act of
Parliament, whereas a collective agreement was not, and despite the
provisions of such an agreement,
the Director-General retained the
power to dismiss in terms of section 17 of the Act. Secondly, it was
argued that the interference
by the Director-General was not a
disciplinary rehearing, but the exercise of an administrative
statutory power, and thirdly, that
the dismissal was not unfair in
any event.
[20]
The above submissions were also what the arbitrator had, in essence,
found in his award.
[21]
The collective agreement does make provision for a disciplinary code
and procedure. Those procedures
were in fact followed in this case.
There is no specific provision in the collective agreement which
seeks to circumvent or oust
the powers conferred upon the
Director-General by section 17 of the Act.
[22]
In my view, the fact that a collective agreement is or could be
interpreted to be at variance with
the PSA, does not render the
provisions of the latter automatically as
pro non scripto
, as
the argument of the Union would suggest.
[23]
Clearly in some circumstances, parties (an employer and a trade
union) would conclude a collective
agreement wherein there are
provisions which do not coincide with the provisions of the
Labour
Relations Act 66 of 1995
, as amended (“the Act”) or, as
in this case the PSA. The reasoning behind such a divergence from an
Act would be that
in respect of certain matters, particularly of
mutual interest, between the parties, it may be more expedient for
their labour
relationship, to make their own rules rather than to
resort to or follow the provisions in a statute.
[24]
An example of the aforesaid would be where the parties agree on a
procedure to be followed prior to
the employees embarking on a
strike. Often such a collective agreement would make provision for a
“cooling off” period,
which is absent from the Act, but
some parties would enter into such an agreement because the
particular industry they operate
in, may require such a procedure, or
they could make rules for any reason which may facilitate disputes
between them.
[25]
Section 17(1)(a) of the PSA reads as follows:
Discharge of officers
(1) (a) Subject to the
provisions of paragraph (b), the power to discharge an officer or
employee shall vest in the relevant executing
authority, who may
delegate that power to an officer, and the said power shall be
exercised with due observance of the applicable
provisions of the
Labour Relations Act, 1995 (Act 66 of 1995).
[Para. (a) substituted
by s. 14 (a) of Act 47 of 1997.]
(b) Notwithstanding
paragraph (a), the power to discharge an officer, excluding a head of
department, in terms of subsection (2)
(e), shall be vested in the
head of department.
[26]
The necessity of such a provision in the public sector is abundantly
clear. It is in the interests
of sound public policy that the
disciplinary sanctions imposed by a government body, should be
second-guessed by someone other
than the decision maker or delegate
of the head of the Department (such as the chairperson of a
disciplinary enquiry). This is
so because the Government is
accountable to its citizens for what it does with its taxes.
[27]
Mr Venter was a public officer. The third charge related to instances
where Mr Venter, in the scope
and course of his duties was required
to make use of hotel or other accommodation as he had to attend to
duties away from
his own residence. The Department was liable to
reimburse him for the expenses he had incurred in this regard. He
managed to qualify
for special rates which were cheaper than the
usual rates offered where he stayed. Instead of claiming from the
Department, the
special rate, he claimed the higher rate and
appropriated the difference for himself, thus making a profit
for himself at
the expense of the Department and ultimately the
taxpayers of this country. That is fraud. It is quite trite that for
offences
of dishonesty, dismissal is the appropriate sanction, even
in cases where the misconduct is a first offence.
[28]
The Department, as most other Governmental bodies, had adopted a
“zero tolerance” policy
towards fraud. It has done so for
a reason. Millions of Rand are lost annually through the fraudulent
conduct of some governmental
officials. This scourge will never be
rooted out if there is no scrutiny of the sanctions imposed for fraud
committed by officials.
[29]
A collective agreement such as the one in question, does not prevent
the Director-General to intervene
and overturn an inappropriate
sanction. The Director-General’s intervention did not amount to
a re-hearing of the matter.
No new facts were relied on.
[30]
At the arbitration hearing there was evidence that some of Mr
Venter’s subordinates followed
the same practices when claiming
subsistence expenses from the Department, but had done so on the
advice of Mr Venter, their supervisor.
The Department viewed these
cases as less serious because the employees in question acted on Mr
Venter’s advice. There was
also evidence that in some seven
cases the Department had dismissed officers and employees for
misconduct amounting to dishonesty
and insubordination, which ruled
out the argument for inconsistency on the part of the Department in
applying discipline.
[31]
Part of Mr Venter’s responsibilities as Head of Internal Audit
was to prevent financial mismanagement
and by committing fraud for
personal gain he abused a position of trust and set a bad example to
his subordinates. Even though
his misconduct was regarded as a first
offence, it is of importance to note that the several fraudulent
claims he lodged, were
claimed over a twenty month period and were
detected only because of an anonymous letter which was sent to the
Department.
[32]
The arbitrator’s conclusion that a collective agreement is not
capable of overriding an Act of
Parliament or prevailing over it, is
neither illogical, irrational or incorrect. The terms of the
collective agreement itself declares
the collective agreement to be a
guideline only.
[33]
The Labour Appeal Court has cautioned against having a second
disciplinary enquiry in circumstances
where second enquiry is
ultra
vires
the employer’s disciplinary code and held that save
in exceptional circumstances a second enquiry would probably be
unfair.
[34]
See: BMW SA (Pty) Ltd Van der Walt (2000) 21 ILJ 113 (LAC) paragraph
12. In the same judgment it was
also held that the principles of
auterfois acquit
and re
juidictata
ought not be
imported into labour laws as fairness and fairness alone is the
yardstick.
[35]
As a matter of law therefore, it can not be said that proceedings
under a collective agreement raises
a bar to the exercise of a
statutory power contained in section 17 of the PSA. The question is
whether it was unfair to change
the sanction imposed to a harsher
one.
[36]
The arbitrator held that Mr Venter’s dismissal was not unfair.
Given the circumstances outlined
above, such a finding is not
irrational or disconnected to the evidence before him. Mr Venter was
guilty of three serious counts
of misconduct (insubordination, using
official information for personal gain and fraud). These were all
offences for which dismissal
was in each case, a justifiable
sanction.
[37]
Mr Venter elected not to make use of the opportunities given to him
to put any further mitigating circumstances
before the Director
General. He was subjected to one proper hearing only, and it was a
fair one.
[38]
In the circumstances, I find no reason to set aside the arbitrator’s
award.
Condonation:
[39]
The application for review was brought out of time. The degree of
lateness was in dispute and the explanation
for the delay was that Mr
Venter had sought legal advice. Given the poor explanation for the
delay and the lack of prospects of
success as shown above,
condonation for the delay is not granted.
[40]
The application for review is dismissed with costs.
__________________
E.REVELAS
REPORTABLE:
YES/NO
REPORATABLE
DATE
OF HEARING:
17 MARCH 2005
DATE
OF JUDGMENT:
5 OCTOBER 2005
ON BEHALF OF THE
APPLICANT: The
Public Servants Association of South Africa
ON
BEHALF OF THE RESPONDENT: State Attorney