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[2009] ZALCJHB 12
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Department of Transport North West Province v Sebotha NO and Others (JR1511/05) [2009] ZALCJHB 12 (13 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR1511/05
In
the matter between:
THE
DEPARTMENT OF TRANSPORT
NORTH
WEST PROVINCE
APPLICANT
and
GG
SEBOTHA
N.O.
1
ST
RESPONDENT
THE
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL
2
ND
RESPONDENT
PUBLIC
SERVANTS ASSOCIATION
3
RD
RESPONDENT
H
K GWABENI
4
TH
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application in terms of which
the Applicant seeks an order reviewing and setting aside the
arbitration award issued by
the First Respondent (the arbitrator)
under case number PSGA 507-04/05 dated 10
th
May 2005. I terms of her award the arbitrator found the dismissal of
the Fourth Respondent (the employee) to have been unfair and
ordered
his reinstatement.
Background facts
[2]
The employee was charged with misconduct
related to absenteeism for a period of about 143 (hundred and forty
three) days. The only
witness which the Applicant called in support
of its case was Mr Moletsane.
[3]
The case of the Applicant is that on return
after the protracted period of absence from work the employee failed
to provide an explanation
for his absence. During the period of
absence the Applicant attempted contacting the employee to find out
about his whereabouts.
The attempt at contacting the employee
included visiting his mother and leaving messages presumably that he
report for work.
[4]
The case of the Applicant is further that
the employee had been placed on an Employee Assistance Programme
(EAP) but absented himself
from it also. He did not furnish an
explanation for his failure to attend the programme the Applicant
submitted.
[5]
It would appear that the case of the
employee at the arbitration hearing was that the dismissal was too
harsh. It seems also common
cause that the employee led no evidence
during the arbitration hearing.
The grounds for review
[6]
The Applicant complains that the award is
full of errors which indicate that arbitrator failed to apply her
mind to the issues placed
before her. In this respect the Applicant
gave two examples of the errors. The one relates to the statement by
the arbitrator on
page 1 of her award that the “
Applicant
testified”
whereas at page 4 she
states that “
Applicant did not
testify and closed his case”
[7]
The Applicant further contended that the
arbitrator committed a misconduct, gross irregularity and exceeded
her powers in the following
respect:
(a) She
failed to apply her mind to the relevant law applicable to the
dispute between the parties.
(b)
There is no rational connection between the award she made and the
evidence presented to her.
Evaluation of the
application
[8]
In the heads of argument the Applicant
relies on the provisions of section 17(5) of the Public Service Act
of 1994 (the PSA), in
its challenge to the arbitrator’s
decision. It is contended in this regard that the arbitrator failed
to apply her mind to
the provision of this section because had she
done so she ought to have concluded that the employee was deemed to
be dismissed
by the “
operation of
law.”
Section 17(5) of the PSA
reads as follows:
“
(a)
…
(i)
An officer, other than a member of the services or an educator or a
member of the Agency or the
Service, who absents himself or herself
from his or her official duties without permission of his or her head
of department, office
or institution for a period exceeding one
calendar month, shall be deemed to have been discharged from the
public service on account
of misconduct with effect from the date
immediately succeeding his or her last day of attendance at his or
her place of duty.
(ii)
If such an officer assumes other employment, he
or she shall be deemed to have been discharged as aforesaid
irrespective of whether
the said period has expired or not.
(b)
If an officer who is deemed to have been so discharged, reports for
duty at any time after the expiry of the period
referred to in
paragraph (a), the relevant executing authority may, on good cause
shown and notwithstanding anything to the contrary
contained in any
law, approve the reinstatement of that officer in the public service
in his or her former or any other post or
position, and in such a
case the period of his or her absence from official duty shall be
deemed to be absence on vacation leave
without pay or leave on such
other conditions as the said authority may determine.”
[9]
In support of its case the Applicant relies
in the decision in
Hospersa &
Another v MEC for Health
(2003) 12 BLLR 1242(LC)
,
where in dealing with the interpretation of section 17(5) of the PSA
the Court held at para [36]-[37] that:
“
[36]
Because the employees are discharged, they are deprived of all the
rights and protections afforded by the unfair dismissal
laws. As a
discharge is deemed to be on account of misconduct, the employees are
condemned before they have been given a hearing.
There may be reasons
other than misconduct for their absence. After the employees have
been deemed to be so discharged, and provided
they, firstly, report
for duty and, secondly, they show good cause, their reinstatement
into their former or other positions may
be approved subject to
conditions (s 17(5) (b)) When exercising their right to a hearing in
terms of s 17(5) (b) the employees
bear the onus of showing good
cause. Section 17(5) (a) not merely restricts, but excludes the
employees' right to a fair hearing
before being found guilty and
dismissed. It deprives the employees of challenging the termination
of their services through conciliation
and arbitration. It
automatically deprives employees of their employment.
[37]
All in all, s 17(5) is a Draconian procedure. It must be used
sparingly and only when the code cannot be invoked
when the employer
has no other alternative. That would be so, for example, when the
respondents are unaware of the whereabouts
of the employees and
cannot contact them. Or, if the employees make it quite clear that
they have no intention of returning to
work. The code is a less
restrictive means of achieving the same objective of enquiring into
and remedying an employee's absence
from work. It enables employees
to invoke the rights to fair labour practice and administrative
justice. All the jurisdictional
prerequisites for proceeding in terms
of s 17(5) (a) (i) must be present before it is invoked.”
[10]
The Applicant further relied on the case of
Phetheni v Minister of Education and
Others
(2006) 9 BLLR 821(SCA)
,
where the
Supreme Court of Appeal dealt with a similar section under the
Employment Educator’s Act 76 of 1998.
[11]
In the
Horspesa’s
case
the Court held that the requisites
for invoking the provisions of section 17(5) of the PSA were:
i.
The person concerned must be an officer or an employee
ii.
The employee must have absented himself or herself from the
employee’s official duties
iii.
The absence must have been without authority
iv.
The absence must be for more than a calendar month; and
v.
The circumstances must be such that the disciplinary code and
procedure of the Public Service do not
have application.
[12]
The
Horspesa
case
was subsequently followed in the
case of
Seema v GPSSBC & others
(2005) 26 ILJ 2035 (LC),
and the same
conclusion reached in the
Free State
Provincial Government v Makae & others (2006) 27 ILJ 1845 (LC).
It needs to be emphasized that the
reading of these cases indicate very clearly that when faced with a
case involving absence from
work by an employee in excess of thirty
days, the employer has an election of either evoking the provisions
of section 17(5)(1)(a)
or directing otherwise. The employer may
instead of evoking the provisions of section 17(5) (1) (a) of the PSA
evoke the provisions
of the Labour Relations Act 66 of 1995 (the
LRA). Where on employer evokes the provisions of section 17(5), the
employment relationship
is terminated by the operation of law and can
therefore not be said to be termination in terms of section 186 of
the LRA. Thus
in this instance the bargaining council or the CCMA’s
jurisdiction will be ousted by the deeming provisions in section
17(5)(1)(a)
of PSA. If the employer elects to institute disciplinary
proceedings and ultimately dismisses an employee who absented himself
or herself without authority for a period in excess of thirty days
then in that instance the provisions of section 186 of the LRA
would
apply and the CCMA or the bargaining council would accordingly have
jurisdiction. In this respect Pillay J in
Horspesa
had this to say:
“
[34]
There are two mechanisms available to the respondent (employer) if
the employee absent themselves from work without permission.
The
first is charge them
for
misconduct for having breached the code. Schedule A of the code
includes as an offence: Absence or repeatedly absenting him/herself
from work without reason or permission.
The
employees remain employed whilst the charges are investigated and
tried
(my underlining). If the disciplinary enquiry determines that they
should be dismissed, respondents would bear the onus of proving
the
fairness of the dismissal. Absence from duty without permission is
also not usually regarded as a serious offence warranting
dismissal.
To invoke this procedure, the whereabouts of the employees must be
known to the employer in order to serve a charge-sheet
and secure
their attendance at the disciplinary enquiry.
[35]
The second mechanism is in terms of s 17(5) (a). Employees who absent
themselves without permission for more than
one calendar month shall
be deemed to have been discharged on account of misconduct. The words
“shall be deemed” implies
that the provisions are
automatically invoked by operation of law.”
[13]
In
Phetheni’s
case
the
Court held that the operation of the provisions of
section 14
(1) (a)
of the
Employment of Educators Act 76 of 1998
, may only be lifted or
revoked by the employer directing otherwise.
[14]
It is clear that in the present instance
the Applicant did not evoke the provisions of
section 17(5)(1)(a)
of
the PSA but rather directed that the employee be disciplined for
misconduct in terms of clause 6 and 7 of the Disciplinary Code
and
Procedure as contained in the Public Service Coordinating Bargaining
Council (the PSCBC), resolution number 2 of 1999 as amended
by
resolution 1 of 2003. It therefore means that the termination of the
employment falls within the provisions of section 186 of
the LRA and
accordingly the bargaining council had jurisdiction to entertain the
dispute concerning the alleged unfair dismissal
of the employee. It
also appears that the issue of section 17(5)(1)(a) was never raised
by the Applicant during the arbitration
hearing which means the
arbitrator cannot be criticized for having not considered whether or
not the provisions of that section
was applicable. In addition the
facts of the case before the arbitrator did not call on her to raise
the deeming provision
mero muto.
[15]
In my opinion the termination of the
employee’s employment was not due to the deeming provisions of
the PSA but rather termination
as envisaged by the provisions of the
LRA and therefore the determination of whether the arbitration award
in this matter is reviewable
falls to be determined in terms of the
LRA.
[16]
I now turn to deal with the issue of
whether or not the award of the arbitrator is reviewable. In
considering whether or not to
review and set aside the arbitration
award of the arbitrator the question that arises is whether or not
the conclusion reached
by the arbitrator falls outside the range of
reasonableness so as to attract interference with the award by the
Court. The test
to determine whether or not a conclusion reached by
an arbitrator is reasonable or otherwise is that of a reasonable
decision-maker.
The question to be answered in considering the
reasonableness or otherwise of an award is whether the conclusion of
the arbitrator
is one which a reasonable-decision maker could not
reach. See
Sidumo v Rustenburg Platinum
Mines Limited (2007) 28 ILJ 2405 (CC).
[17]
In order to apply the above test the Court
needs to have before it the record of the arbitration proceedings. As
a general rule
the complete record of everything that transpired
during the arbitration proceedings needs to be placed before the
Court. There
is however instances where the Court may be able to
determine whether or not the award is reviewable based on specific
and relevant
portions of the record only or for that matter on the
arbitration award alone. This would be so in particular if the
irregularity
complained of is patent from the reading of the award.
See
Shoprite Checkers Ltd v CCMA
(2002)
7 BLLR 677
at par 11.
[18]
The responsibility to ensure that a proper
and complete record is placed before the Court rests with the
Applicant. Failure to place
before the Court a complete record by the
Applicant could result in the dismissal of the review application on
that ground alone.
[19]
In
Boale v
National Prosecuting & Others
[2003] 10 BLLR 988
(LC) para 5:
“
It
is trite that there is duty on an Applicant to provide a review Court
with a full transcript of the proceedings he wishes to
have reviewed.
The Applicant has failed to provide this Court with the full
transcript of the proceedings that he wished to have
reviewed. Where
an Applicant fails to provide a full transcript of the proceedings
the review application must be dismissed. The
only exception would be
where the tape cassettes are missing or where the parties are unable
to reconstruct the record.”
[20]
The same approach was adopted in
Fidelity
Cash Management Services (Pty) Ltd v Muvhango SA
(2005) JOL 14293
(LC),
where it was held that:
“
The
court should be placed in a position to assess the different versions
as they were placed before a commissioner through a full
transcription of the record or a satisfactory reconstruction
thereof.”
[21]
The approach to be adopted when dealing
with an incomplete record was set out in the case of
Life
Care Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v
CCMA & Others
[2003] 5 BLLR 416
(LAC) 1116,
where the Labour Appeal Court held:
“
[14]
This is not to say that much purpose was served by placing the un
transcribed notes before the Court a quo
.
It is properly to be expected that
Court, as in this Court that hand written documents will be
accompanied by typed written transcription
or copies. The
commissioner’s hand writing affords ample reason for the
settled practise.”
The
court held further that:
“
[17]
The reconstruction of the record (or part thereof) is usually
undertaken in the following way, the tribunal (in this case the
commissioner) and the representatives in this case is ready for the
employee and Mr Mvelengwa for the employer to come together,
bring in
their extent notes and such other documentation as may be relevant.
He then endeavoured to the best of their ability and
recollection to
reconstruct as full and accurate a record of the proceedings as the
circumstances allow. This is then placed before
the relevant court
with such reservations as the participants may wish to note. Whether
the product of their endeavours is adequate
for the purposes of
appeal or review is for the court hearing same to decide, after
listening to argument in the event of a dispute
as to the accuracy or
completeness.”
[22]
At the beginning of this application the
Court invited Mr Vally for the Applicant, to show cause why in the
light of the absence
of the transcription of the record of the
arbitration proceedings the matter should not be postponed to afford
the Applicant the
opportunity to produce or reconstruct the record.
He indicated that he did not see the reason for the postponement
because the
matter has been fully ventilated. He contended that the
Court could determine the matter based on the arbitrator’s hand
written
notes which are also not transcribed. He further contended
that the hand written notes were legible enough to make sense to the
Court.
[23]
These notes are however incomplete and
provides a partial recording of the testimony of the only witness of
the Applicant, Mr Moletsane.
The testimony of Mr Moletsane is crucial
in the determination of whether or not to review the award of the
arbitrator. The evidence
of Mr Moletsane is key to the reasoning of
the arbitrator in particular because this evidence was rejected and
Mr Moletsane was
found to be an unreliable witness. The Applicant
based its attack of the award on the criticism of the evidence of the
testimony
of Mr Moletsane by the arbitrator. In the absence of a
proper record this Court is unable to determine whether or not there
is
a basis for this criticism. In other words in the absence of the
transcript of what was said during the arbitration hearing this
Court
is unable to determine whether or not “
Mr
Moletsane’s evidence is full of contradictions and proved to be
an unreliable witness”
as was
determined by the arbitrator.
Conclusion
[24]
In my view the Applicant’s review
application stand to be dismissed for failure to provide the Court
with a complete record.
I see no reason why the costs should not
follow the results both in terms of law and fairness.
[25]
In the premises the review application is
dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
20
th
November 2008
Date
of Judgment :
13
th
May 2009
Appearances
For
the Applicant :
Adv B Valley
Instructed
by :
State Attorney (Mmabatho)
For
the Respondent: Adv F J Van
Der Merwe
Instructed
by :
Bouwers (Roodepoort)
Incorporated