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[2006] ZALCJHB 21
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Department of Transport: Limpopo Provincial Government v General Public Sectoral Bargaining Council and Others (JR718/04) [2006] ZALCJHB 21 (17 November 2006)
IN
THE LABOUR COURT OF SOTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR718/04
In
the matter between:
DEPARTMENT
OF TRANSPORT: LIMPOPO
PROVINCIAL
GOVERNMENT
Applicant
and
GENERAL
PUBLIC SECTORAL
BARGAINING
COUNCIL
First
respondent
LUFUNO
LAWRENCE
RAMABULANA
Second
respondent
DANNY
DUMISANI
NGOBENI
Third
respondent
JUDGMENT
LEEUW
AJ
INTRODUCTION
[1]
The applicant approached this court in terms of section 145 of the
Labour Relations Act 66 of 1995 (“the
LRA”) for an order
in the following terms:
“
1.
That, the First Respondent be called upon to show cause why the
Arbitration Award dated the 09
th
January 2004 under Case No. PSGA 6183 made by the Second Respondent
as Arbitrator, should not be reviewed and corrected, or set
aside;
2.
That, the First Respondent and/or Second Respondent be is hereby
called upon to dispatch within Ten [10] days after receipt of
the
Notice of Motion, to the Registrar of the above Honourable Court, the
record of the proceedings sought to be reviewed and corrected
or set
aside, together with such Reasons as are required by law or desirable
to provide, and to notify the Applicant that this
has been done;
3.
That condonation for late filing of this application be granted.
4.
Costs of this Application only if this is opposed”.
[2]
The third respondent referred the matter to the first respondent for
arbitration after conciliation
had failed. A certificate of outcome
was issued on 24 July 2003.
[3]
The third respondent was employed by the applicant as a traffic
officer. His duties were amongst others,
to conduct tests on the
candidates who wished to obtain or be issued with learners and/or
drivers licences.
[4]
It is alleged that during the course of his employment and whilst
executing his duties as a traffic
officer, he inappropriately
solicited sexual favours from three different women who had attended
the applicant’s offices
for the purpose of being tested for a
learners and /or drivers licence, in return for causing a licence to
be issued to them without
being tested therefor. The other two
charges were withdrawn and the applicant proceeded with those charges
wherein Ruth Maluleke
was the complainant.
[5]
Six charges were preferred against him in that regard, including one
of persuading Ruth Maluleke not
to divulge the information to the
officer investigating the charges against him.
[6]
A disciplinary hearing was held and the third respondent was
convicted of all six counts and was consequently
dismissed. He did
not succeed on appeal and subsequently referred the dispute to the
first respondent as stated in paragraph (2)
above.
[7]
After the arbitration hearing, the second respondent set aside the
disciplinary sanction imposed by
the employer and ordered the
reinstatement of the third respondent, as well as payment of his
outstanding salary.
SUBMISIONS
[8]
It is submitted by Counsel for the applicant, which issue appears in
the applicant’s founding
affidavit, that there was no agreement
between the parties that the arbitrator should confine himself to the
question whether or
not the third respondent was offered a demotion
or dismissal before the commencement of the disciplinary proceedings
or after.
He was rather required to establish whether the dismissal
was substantively and/or procedurally fair. It is for this reason
that
the applicant requests that the arbitration award be reviewed
and set aside.
[9]
The third respondent submits that his dismissal was substantively and
procedurally unfair in that the
chairperson was biased against him.
He further submits that the arbitrator did not commit any
irregularity and urged this court
not to interfere with his ruling.
ANALYSIS
OF ISSUES
[10]
The transcribed record of the arbitration proceedings is incomplete
in that the bulk of the witnesses’
evidence was not
transcribed. The chairperson of the internal disciplinary proceedings
testified on behalf of the applicant. He
summarised the evidence led
by Ruth Maluleke, the complainant, with regard to the charges
preferred against the third respondent.
Her evidence was not
transcribed and no reference was made to her testimony by the
arbitrator in the award.
[11]
Although the arbitration record is incomprehensible, it is still
possible to decide on the record available,
as well as what is
contained in the arbitration award itself. Counsel for the applicant
urged me to rely on the arbitration award
based on the fact that the
irregularity is patent from the award to the extent that the record
is not necessary in the circumstances.
Reliance is placed on the
Shoprite Checkers Ltd v Commission
for Conciliation and Arbitration & others
(2002) 23 ILJ 943 (LC). I agree with this submission.
[12]
The arbitrator, when the dispute was referred to him, was required to
determine whether or not the third
respondent’s dismissal was
substantively and/or procedurally unfair. This he failed to do. He
concentrated on the issue whether
or not the third respondent was
given the option to accept demotion or be dismissed and came to the
conclusion that the third respondent
was dismissed without him being
properly informed about the option to accept a demotion as an
alternative to dismissal, and which
according to the arbitrator was
unfair and improper.
[13]
He went further to state that “
(It)
is not because Ngobeni is entitled to an alternative but his
entitlement is established as a result of the chairperson’s
findings, which was communicated to the Department or the
respondent”
.
[14]
It is not clear from the arbitration award, whether the third
respondent was still disputing the fact that
his dismissal was
substantively and procedurally unfair. I have already alluded to the
fact that the arbitrator did not deal with
the merits of the case
against the respondent in order to establish whether or not his
dismissal was fair.
[15]
I am of the view that the arbitrator committed a gross irregularity
in conducting the proceedings. He also
exceeded his powers and failed
to apply his mind to the issues presented before him for the purpose
of determining the fairness
of the third respondent’s
dismissal.
[16]
I accordingly make the following order:
(i)
The arbitration award dated 9 January 2004 under case no. PSGA 6183
made by the second respondent
as arbitrator is hereby reviewed and
set aside;
(ii)
The dispute is referred back to the first respondent to be heard by a
commissioner other than
the second respondent;
(iii)
There is no order as to costs.
__________________
M
M LEEUW
Acting
Judge of the Labour Court
APPEARANCES
For
the applicant:
M G Phatudi
(instructed
by M G Phatudi Incorporated
For
the respondent: D D Ngobeni
(in
person)
Date
of hearing:
19 October 2006
Date
of judgment: 17
November 2006