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[2007] ZALCJHB 51
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South African Police Services v Lubbe and Others (JR161/06) [2007] ZALCJHB 51 (19 March 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO : JR 161/06
In
the matter between :
SOUTH
AFRICAN POLICE
SERVICES APPLICANT
and
SUPT
F H
LUBBE FIRST
RESPONDENT
THE
SAFETY AND SECURITY SECTORAL
BARGAINING
COUNCIL (SSBC)
SECOND
RESPONDENT
ARBITRATOR GG
SEBOTHA THIRD
RESPONDENT
J U D G E M E N T
LEEUW
AJ
:
Introduction:
[1]
The Applicant (SAPS) approached this Court on Review in terms of
section 158 (1) (g) of the Labour Relations Act No 66 of 1995
(The
Labour Relations Act) for
an order in the following terms:
“
1.
That the ruling handed down by the third respondent (annexure “A”)
under
case no PSS 585-04/05 on 02 November 2005 received by the
applicant on 12 December 2005 be and is hereby reviewed and set
aside.
2.
An order staying the enforcement of the award and/or ruling made in
favour of
the first respondent pending the outcome of the review
application.
3.
Costs of suite in the event of opposition.
4.
Further and/or alternative relief.”
[2]
The First Respondent (Lubbe) is a police officer occupying a rank of
superintendent in the employ of SAPS. He was charged
with 19
counts of misconduct, and convicted of seven (7) at a disciplinary
hearing and fined R700-00 cumulatively. He was
acquitted of the
rest of the other charges.
[3]
He lodged an internal appeal against the said convictions of
misconduct but not against the sanctions imposed. The
convictions
were confirmed on appeal but the appeals authority made a
finding that Lubbe was guilty of two further charges of misconduct.
Lubbe was acquitted by the Disciplinary Tribunal of those two charges
of misconduct. The Chairperson of the Appeal Tribunal
(The
Chairperson) set aside the sanction of a fine and substituted same
with an order of dismissal. Lubbe subsequently referred
the
dispute to the Second Respondent (Bargaining Council), the grounds
being that his dismissal was both substantively and procedurally
unfair.
Proceedings
at the Bargaining Council
[4]
The parties hereto had a Pre-Arbitration Agreement. The
arbitrator was required to establish whether or not, the conviction
on the nine (9) counts of misconduct inclusive of the two additional
convictions on appeal, as well as the procedure followed in
imposing
a sanction of dismissal, were both substantively and procedurally
unfair.
[5]
At the arbitration hearing, the Applicant raised five (5)
Points
in
Limine
as tabulated in the
“
Applicant’s Written Reply to the Respondent’s
submissions (Answer) re :
Points in Limine
”
“
2.1
POINT NR 1:
The chairperson on appeal is not
entitled to enlarge the ambit of the appeal so as to include an
appeal against the sanction
where the appeal was confined to an
appeal against the merits.
2.2
POINT NR 2:
The chairperson (on appeal) is not
entitled to impose a harsher or more severe sanction on appeal.
2.3
POINT NR 3:
The chairperson on appeal is not
entitled to find an employee guilty on charges on which he has been
found not guilty by
the chairperson of the disciplinary enquiry.
2.4
POINT NR 4:
As a result of the unreasonable delay
in bringing charges against the employee, the disciplinary
proceedings should be declared
substantive and/or procedurally
unfair.
2.5
POINT NR 5:
Because the Appeals Authority (which
found the Applicant guilty and imposed a sanction of dismissal),
comprised of
one member
only, the Appeals Authority acted
ultra vires” .
[6]
From the Heads of Argument prepared by T L Duba, (“Duba”)
on behalf of SAPS at the arbitration hearing, it is apparent
that
both parties hereto had agreed that written submissions would be
prepared and filed dealing with the abovementioned preliminary
points
raised, thereafter a ruling “
would be made by the arbitrator
after which an agreement will be reached on the number of days
required for the Con. Arb. Hearing
…..”
See
paragraph 2.3 of the “
Respondent’s Heads of Argument
with regard to Applicant’s Heads of Argument with regard to
Applicant’s
Points in Limine.”
[7]
The arbitrator repeated the Heads of Argument filed by Counsels of
both parties hereto and summarized same and made the following
ruling
on 2 November 2006.
“
I find that the
chairperson of the Appeal Authority had exceeded his authority/powers
by extending the grounds of appeal to include
an appeal on a sanction
after he, acknowledged the absence of a sanction as a ground for
appeal.
Regulation 13
is unambiguous and unequivocally provides
for procedures on appeal and the powers of the Appeals Authority.
The sanction
was not properly before the Appeals Authority because it
does not form part of the grounds. I am inclined to agree that
the
wording of
Regulation 13
(8) grants the chairperson the powers to
confirm, vary (whichever way), set aside the finding/sanction and
make an appropriate
order, but only when the said sanction is the
subject of/or ground of appeal. I order that the ruling by the
chairperson
of the Appeals Authority on the sanction be declared
invalid.
On the second point
raised that the chairperson on appeal is not entitled to impose a
harsher or more severe sanction I would refrain
from making a ruing
because the sanction should not have been the subject of appeal.
The sanction was not properly before
the chairperson on appeal.
The charges on which Applicant was found not guilty were also not
part of the grounds of appeal.
I find that the chairperson
exceeded his mandate as stipulated on the grounds by making a finding
on charges which there was no
appeal. On points of the delay
each case has to be decided on the merits. In this case the
chairperson of the appeal
authority has reasons that the offences
were not discovered until later hold merit.”
[8]
She later clarified her ruling per memorandum dated 21 December 2005
which reads as follows:
“
Applicant raised a
point in limine
that Respondent’s Appeals
Authority acted
ultra vires
by giving a ruling
on issues that did not form part of the grounds of appeal, such as
offences for which Applicant was found not
guilty, and the sanction.
The Appeals Authority had altered the sanction from financial penalty
to dismissal.
Respondent submitted that
the Appeals Authority had powers to alter the sanction if it feels
that the sanction was inappropriate.
The outcome was that the
Appeals Authority was found to have acted
ultra vires
,
and that Applicant was reinstated.”
This
ruling is still unclear but it would appear as if the Arbitrator’s
ruling was that Lubbe should be reinstated.
Submissions
on Reviews
[9]
In his Founding Affidavit, Duba on behalf of SAPS, states the
following as grounds for review:
9.1
That the Arbitrator committed a gross irregularity by holding the
view that “in order
for the chairperson of appeal to determine
the sanction and/or appropriate sanction imposed on the first
respondent, there must
first be an appeal against that sanction.”
That the arbitrator relied on criminal law principles which she
wrongly
applied to labour law relations in coming to her decision;
9.2
That when the Arbitrator dealt with the
points in limine
raised, she acted as if she was a Court of Review in that she ruled
that “the Chairperson of the Appeal Tribunal exceeded
his
powers and did not have authority to include an appeal on a sanction
in the absence of the grounds of appeal which attacked
the
sanction.” Furthermore, that these preliminary points
ought to have been referred to the Labour Court which has
jurisdiction to entertain same;
9.3
That the Arbitrator was supposed to have had a retrial on the merits
in order to determine
whether or not Lubbe’s dismissal was both
substantively and procedurally unfair;
9.4
That the Arbitrator ought to have joined the Chairperson of the
Appeal Tribunal as party
to the proceedings;
9.5
That the Arbitrator overlooked
Regulation 13
(8) of the general
regulations of the SAPS in finding that the sanction imposed was not
properly before the Chairperson of the
appeal tribunal. This
ground is in essence the same as the one in 9.2 above;
9.6
That the Arbitrator misdirected herself by stating that the
Chairperson of the Appeal Tribunal
ought to have afforded Lubbe an
opportunity to make submissions before imposing a sanction, in
compliance with the
audi alteram partem
rule.
I will deal with the
abovementioned grounds not necessarily in the order stated.
Did
the Arbitrator act as a Court of Review?
[10]
It would appear from the oral agreement arrived at between Counsels
for both parties at the arbitration hearing, the Arbitrator
was
required to establish whether or not it was appropriate for the
Chairperson to convict Lubbe of two additional charges
of misconduct
and to vary the sanction of a fine imposed to one of dismissal.
The facts were recorded as common cause in
the pre-arbitration
minutes.
[11]
Furthermore, the Arbitrator was directed by both parties to resolve
this issue first. No evidence was presented by both
parties on
the preliminary points raised, presumably because the Arbitrator was
not called upon to decide on the merits of the
dispute, but rather to
determine whether or not the process followed by the Chairperson fell
short of procedural fairness, which
procedure, if it were to be found
to be in order by the Arbitrator, would entail that the arbitration
hearing would be in respect
of all convictions of misconduct,
inclusive of the two further charges.
[12]
In her ruling, the Arbitrator stated that the Chairperson “exceeded
his authority/powers by extending the grounds of
appeal to include an
appeal on a sanction…” without herself considering the
merits of the case. The Arbitrator
made a finding that the
holding of the second enquiry rendered the dismissal of Lubbe unfair.
[13]
The duty of the Arbitrator on Review was to determine whether or not
the dismissal of Lubbe was substantively and procedurally
fair.
The Arbitrator further made a ruling on the procedure followed
without having recourse to the legal position as well
as the views of
the Labour Courts in that regard.
[14]
The issue of the second disciplinary enquiry has been considered by
the Courts and I deem it appropriate to discuss the principles
applied by the Courts at this stage.
The
Law
[15]
In the case of
BMW (SA) (Pty) Ltd v van der Walt
(2000) ILJ 113 (LAC) at par [12] the Court reiterated the fact that
“in labour law fairness and fairness alone is the yardstick”
when determining whether or not a second disciplinary enquiry should
be held against an employee based on the same facts in a charge
of
misconduct.
[16]
The Court further cautioned against the importation of the Criminal
Law principles of
autrefois acquit
and
autrefois
convict
in labour law. Conradie JA went further to make
the following remarks: “I should make two cautionary
remarks.
It may be that the second disciplinary enquiry is
ultra vires
employer’s disciplinary code
Strydom v Ukso Ltd
[1997] 3 BLLR 343
(CCMA) at 350
F-G). That might be a stumbling block. Secondly, it would
probably not be considered to be fair to hold
more than one
disciplinary enquiry save in rather exceptional circumstances.”
[17]
Zondo AJP (as he then was) gave a minority judgement and was strongly
not in favour of the institution of a second disciplinary
enquiry.
These remarks of Conradie JA were quoted with approval in the case of
Country Fair (Pty) Ltd v CCMA & Others
(2003) 24 ICJ 355
(LAC) at par
[23]
where the Court held that the
Appellant (the employer) conducted a second disciplinary enquiry
“
without recourse to the express provision of its
disciplinary code and on the basis of no precedence.”
[18]
In the case of
Brandford v Metrorail Services (Durban) &
Others
[2004] 3 BLLR 199
(LAC) at par [19] the Court held
that the Arbitrator’s Award demonstrated that he “
completely
misconceived the correct legal position as currently enunciated in
van der Walt and he arrived at the incorrect conclusion
that the
holding of the “second enquiry”
per se
rendered the dismissal unfair.” Per Jafta AJA (as he then
was) at par [21]
[19]
Furthermore,
section 188
(2) of the
Labour Relations Act provides
that: “Any person considering whether or not the reason
for dismissal is a fair reason or whether or not the dismissal
was
effected in accordance with a fair procedure must take into account
any relevant code of good practice issued in terms of this
Act.”
This is what was expected of the Arbitrator to do in the
circumstances.
[20]
I am of the view and reiterate the fact that in this instance, the
Arbitrator was not supposed to assume the role of a Court
of Review
but rather, and as guided by Counsels for both parties hereto, to
determine whether, taking into account the procedure
followed by the
Chairperson of the Appeal Tribunal, the dismissal of Lubbe was fair
and/or whether there were facts which substantively
justified the
dismissal of Lubbe.
[21]
As far as fairness is concerned, the Courts hold the view that a fair
labour practice referred to in section 23 (1) of the
Constitution
embraces the interests of both the employer and employee, who are to
be treated equally in that they enjoy the same
right. See
National Union of Metal Workers of SA v Vetsak
Co-operative Ltd and Others
[1996] ZASCA 69
;
1996 (4) SA 577
(A) at 593 G
– H and
National Education Health and Allied Workers
Union v UCT
2003 (3) SA 1
(CC) at paras [39]
to [40].
[22]
In determining whether or not the dismissal of Lubbe was
substantively and procedurally unfair, the Arbitrator had the
duty not only to determine the fairness or unfairness of Lubbe’s
dismissal but had the duty of also determining the fairness
to the
employer in relation to the “second disciplinary enquiry”
conducted by the Chairperson on appeal.
[23]
In case of
Brandford v Metrorail Services (Durban) &
Others
supra
referred to above,
Jafta AJA as he then was stated in paragraph [21] that:
“
As a result of the
arbitrator’s misconception of the law relating to the propriety
of holding a second disciplinary enquiry,
the employer in the present
matter was denied the opportunity of having the issue of the fairness
of the dismissal considered in
a fair public hearing and by means of
applying the relevant law.
The arbitrator failed to consider
whether or not in circumstances of the present matter the employer
was entitled to hold the enquiry
that led to the appellant’s
dismissal and, if so, whether the sanction of a dismissal was fair
.
In my opinion this constituted a gross irregularity on the part of
the arbitrator. The arbitrator’s reasoning
was so flawed
and the ultimate conclusion he arrived at so unsound to the extent of
constituting a gross irregularity as pronounced
in
Goldfields
Investment Ltd & another v City Council of
Johannesburg & another
1938 TPD 551.
”
(My emphasis).
[24]
Although the cases referred to above dealt with a situation where the
employer conducted a second disciplinary enquiry on the
same facts,
in the present case, the Chairperson on appeal purported to do the
same thing. I am of the view that the same
principles applied
by the Court can be appropriately imported here in order to establish
the fairness of Lubbe’s dismissal.
[25]
The Arbitrator’s conduct of the proceedings as well as her
reasoning in coming to the conclusion arrived at, was flawed
in that
she misconstrued, and in actual fact, was oblivious of the law
relating to establishing a fair labour practice as defined
by the
Courts. For this reason, the ruling by the Arbitrator stands to
be set aside.
[26]
I accordingly make the following order:
(a)
The Ruling handed down by the Third Respondent under Case No
PSSS585-04/05 on
22 November 2005 is hereby set aside;
(b)
The matter is referred back to the Second Respondent to be heard
de
novo
by an Arbitrator other than the Third Respondent.
(c)
There is no order as to costs.
______________________
M
M LEEUW
ACTING
JUDGE OF THE LABOUR COURT
APPEARANCES:
FOR
THE APPLICANT:
Advocate:
Attorneys:
THE STATE ATTORNEY
10
TH
Floor,
North State Building
95 Market Street, Private
bag X9
JOHANNESBURG
2000
TEL: 011 330 7617
FAX: 011 333 0348
REF: D LEBENYA
REF NO: 0051/06/P17/ r m
FOR
THE 1
ST
RESPONDENT:
Advocate:
Attorneys:
KOBUS BURGER ATTORNEYS
Boshoff Street, L A Hoff
KLERKSDORP
TEL: 018 – 468
2616 FAX: 468 2616
REF: Mr Kobus Burger
FOR
THE 2
ND
& 3
RD
RESPONDENTS:
Advocate:
Attorneys:
KHOMOTSO MOSOANE
Secretary : Safety
and
Security Sectoral
Bargaining Council
LYTTLETON
Tel: 012 – 644
8115 FAX: 012 – 664 8992
Date
of hearing :
20 October 2006
Date
of judgement :
19 March 2007