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[2009] ZALCJHB 49
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Westonaria Local Municipality v South African Local Bargaining Council and Others (JR531/08) [2009] ZALCJHB 49 (18 November 2009)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
REPORTABLE
CASE
NO: JR 531/08
In the matter
between:
WESTONARIA
LOCAL
MUNICIPALITY
APPLICANT
and
SOUTH AFRICAN LOCAL
BARGAINING
COUNCIL
1
ST
RESPONDENT
LEGODI,
M M
N.O.
2
ND
RESPONDENT
BALATEDI
MOIRA
MOGATUSI
3
RD
RESPONDENT
JUDGMENT
Molahlehi J
Introduction
[1] This is an
application in terms of which the applicant seeks to review and set
the arbitration award issued by the second respondent
(the
arbitrator) under the case number GPD010712 and dated 26
th
January 2008. In terms of the award the arbitrator found the
dismissal of the third respondent to be unfair and ordered that she
be reinstated.
[2] The key issue which
the arbitrator had to determine was whether the sanction of dismissal
was an appropriate sanction under
the circumstances having regard to
the consistency or parity principle.
Background facts
[3] The facts in this
matter are fairly common cause. The third respondent who I shall in
this judgment refer to as “the employee”
was prior to her
dismissal employed by the applicant, the Westonaria Local
Municipality, as the personal assistant to the executive
mayor. The
employee was appointed to that position further to undergoing an
interview. The position as was advertised in the media
required a
candidate in possession of standard 10 qualification with 6 (six)
years experience, computer literacy, good typing skills
and
experience in certain computer programmes.
[4] During the interview
the employee represented to the panel that she was in possession of
standard 10 certificate. It turned
out 3 (three) years later that she
did not have such qualification. She was as a result of this charged
for misrepresenting her
qualification. At the disciplinary hearing
she pleaded guilty to the charge of misrepresentation and was as
result dismissed on
14
th
December 2006.
[5] The employee being
unhappy with the outcome of the disciplinary hearing referred a
dispute concerning unfair dismissal to the
bargaining council which
arbitrated the dispute on 19
th
November 2007. As stated
earlier the arbitrator who conducted the arbitration proceedings
found the dismissal to be unfair and
ordered reinstatement of the
employee.
[6] The employee relied,
during the arbitration proceedings, on inconsistency of the
application of discipline by the applicant.
She in this respect
relied on the case of another employee of the applicant, Ms
Molelekeng who was not dismissed for having falsified
her
certificate. Ms Molelekeng who was initially employed as clerical
assistant applied for the position of clerical assistant
in the
Department of Public Safety. She later applied for the post of
traffic officer in the same department. The applicant discovered
after unsuccessful application for that post of traffic officer that
she did not have a valid standard 10 certificate.
[7] According to the
applicant Ms Molelekeng pleaded guilty to the act of dishonesty and
was found guilty as charged. She was however,
not dismissed because
she entered into a plea bargaining agreement with the applicant in
terms of which she undertook to assist,
as a witness or otherwise, in
the prosecution of her senior, Mr Mfolo who was apparently charged
with corruption. The other reason
for not dismissing Ms Molelekeng
was according to the applicant because the position she had applied
for did not require standard
10 qualification.
Grounds for review
[8] The applicant
challenges the award on the grounds that the arbitrator committed
misconduct and/or irregularity by arriving at
a conclusion which is
unjustifiable and did so without applying his mind to the evidence
presented. The arbitration award is also
challenged on the ground
that it is a decision which a reasonable decision maker could not
have made.
[9] In support of the
above grounds of review the applicant contended that the arbitrator
failed to appreciate that an act of dishonesty,
particularly
misrepresentation to your employer damages the trust relationship
upon which the employment contract is based on.
It was argued on
behalf of the applicant that the case of break down in the trust
relationship was more compelling in the present
case because the
employee was a personal assistant to the executive mayor and that the
fact that the employee had rendered satisfactory
performance was
irrelevant.
[10] In relation to the
application of parity, the applicant argued that the consequence of
the arbitrator’s finding was that
in future if an employee was
found guilty of dishonesty, particularly of misrepresentation, that
employee should not be dismissed.
This approach was according to the
applicant undesirable and not conducive to effective employment
relationship between the employee
and the employer.
[11] The applicant
contended that the arbitrator was not mindful about the distinction
between the cases of the employee and that
of Ms Molelekeng. The
applicant contended that the distinction which the arbitrator missed
between the two cases was that in the
case of the employee she
misrepresented her qualification whereas Ms Molelekeng on the other
hand had an agreement through which
she undertook to testify against
another person who was accused of being involved in corrupt
activities.
The arbitrator’s
award
[12] It is apparent that
in arriving at the conclusion that the sanction of dismissal was
unfair the arbitrator reasoned that the
applicant had inconsistently
applied its approach to discipline in cases of dishonesty. In this
respect the arbitrator says that
it could not be disputed that Ms
Molelekeng had submitted a falsified certificate to the applicant
which purported that she was
a holder of a valid matric certificate.
The employee on the other hand had furnished a document that
indicated that she sat for
and failed the Senior Certificate in 1994.
[13] The arbitrator
further found that the conduct of the employee of presenting to the
panel that she had matric qualification
was indeed an embarrassment
to the executive mayor. However, the arbitrator found that the
embarrassment did not amount to irreparable
breakdown of trust
between the applicant and the employee. In this regard the arbitrator
had the following to say:
“
There is no
evidence before me that there was a breakdown of trust between the
parties, which could not be repaired by other means.”
[14] As concerning
comparison between the conduct of the employee and that of Ms
Molelekeng the arbitrator found that the falsification
of the
certificate was more serious than that of misleading the panel.
Evaluation
[15] The test in
evaluating whether or not to review an arbitration award issued in
terms of the
Labour Relations Act 66 of 1995
, is that enunciated in
Sidumo & another v Rustenburg Platinum Mines Ltd & other
[2007] 12 BLLR 1097(CC).
In terms of that judgment and those that
followed thereafter the question to answer in assessing whether to
interfere with the arbitration
award is whether the decision of the
arbitrator is one which a reasonable decision maker could not reach.
[16] It is trite that in
unfair dismissal disputes the first task of the arbitrator is to
determine whether the employee was guilty
of the offence he or she is
alleged to have committed. If it is found that indeed the employee
was guilty as charged the next task
of the arbitrator is to enquire
into the fairness of the sanction imposed by the employer. The onus
to show that the employee was
guilty of the offence and that the
dismissal was fair rests with the employer. The employer also bears
the duty to show that the
trust relationship between it and the
employee has broken down because of the offence committed by the
employee.
[17] In the present
instance the arbitrator having found the conduct of the employee
unacceptable the issue for determination concerns
the conclusion by
the arbitrator that the sanction of dismissal was too harsh in the
context where the applicant was inconsistent
in the application of
discipline.
[18] In terms of Schedule
8 of the Code of Good Practice: Dismissal, a
dismissal
is unfair if it is not effected for a fair reason and in accordance
with a fair procedure, even if it complies with any
notice period in
a contract of employment or in legislation governing employment. The
Schedule further provides that the determination
of whether or not a
dismissal is for a fair reason is determined by the facts of the
case, and the appropriateness of dismissal
as a penalty. The key
question which an arbitrator has to ask himself or herself is simply,
as was put in
Engen Petroleum Ltd v CCMA & others
(2007) 8 BLLR 707
(LAC),
“
Is this dismissal fair?”
The person to answer this question is the arbitrator and no one
else. In dealing with this issue in that case the LAC had this to
say:
“
The ordinary
and natural meaning of the word “fair” suggests that
commissioners must answer that question on the basis
of their own
sense of fairness. The question cannot possibly be answered on the
basis of somebody else’s notion of fairness.
This was the
position adopted by the courts under the 1956 LRA. There is no basis
for assuming that the position has changed under
the current LRA.”
[19]
It
has been consistently held by the
Courts that the
responsibility for determining the
appropriateness
of dismissal as a penalty is a matter to be left to the discretion of
the arbitrator. In this respect the Constitutional
Court in
Sidumo
said the following:
“
[75] It is a
practical reality that, in the first place, it is the employer who
hires and fires. The act of dismissal forms the
jurisdictional basis
for a commissioner, in the event of an unresolved dismissal dispute,
to conduct an arbitration in terms of
the LRA. The commissioner
determines whether the dismissal is fair. There are, therefore, no
competing “discretions”.
Employer and commissioner each
play a different part. The CCMA correctly submitted that the decision
to dismiss belongs to the
employer but the determination of its
fairness does not. Ultimately, the commissioner’s sense of
fairness is what must prevail
and not the employer’s view. An
impartial third party determination on whether or not a dismissal was
fair is likely to promote
labour peace.”
[20] The Constitutional
Court went further at paragraph [78] to say:
“
[78] In
approaching the dismissal dispute impartially, a commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list”
[21]
In the present instance the arbitrator in concluding that the
dismissal was unfair because of the harshness of the sanction located
the basis of this conclusion in what he found to have been the
inconsistent application of discipline by the applicant. In
Gcwensha
v CCMA & Others
(2006) 3 BLLR 234
(LAC),
the Labour
Appeal Court, in confirming its decision in
Irvin & Johnson
(1999) 20 ILJ 2303(LAC)
held, that
:
“
Disciplinary
consistency is the hallmark of progressive labour relations that
every employee must be measured by the same standards.”
[22]
The
Court went further so say:
“…
when
comparing employees care should be taken to ensure that the gravity
of the misconduct is evaluated …
”
[23] Another important
aspect in the assessment of the reasonableness of the arbitrator’s
award concerns the conclusion that
there was no evidence showing that
the trust relationship between the parties has broken down. The
applicant contended in its answering
papers that an act of
misrepresentation by an employee to his or her employer damages the
trust relationship. This argument accords
with the view expressed in
De Beers Consolidated Mines Ltd v Commission for Conciliation,
Mediation & Arbitration & others (2000) 21 ILJ 1051 (LAC),
at
paragraph 17, where Conradie JA in dealing with what ordinarily could
happen when it is found that the employee had committed
a serious
misconduct. In this respect the Learned Judge had this to say:
“
[17] The
commissioner characterized the misconduct as serious. Despite that,
she concluded that the relationship of trust between
the appellant
and the employees had not broken down. Where an employee has
committed a serious fraud one might reasonably conclude
that the
relationship of trust between him or her and the employer has been
destroyed. When the employer then asserts that this
has in fact
happened, it would be startling to hear a commissioner proclaim that,
despite what one might expect and despite what
the employer says in
fact occurred, the relationship of trust had not been broken down.”
[24] What is important
however is what is said in the last part of the above paragraph where
the Learned Judge proceeded to say:
“
Of course, a
commissioner is not bound to agree with an employer’s
assessment of the damage done to the relationship of trust
between it
and a delinquent employee, but in the case of a fraud, and
particularly a serious fraud, only unusual circumstances
would
warrant a conclusion that it could be mended.
[25] The approach similar
to the above observation made by Conradie JA in
De Beers
Consolidated
matter was followed in the case of
Standard Bank
of SA v CCMA & others (1998) 19 ILJ 903 (LC),
where the court
held that dishonesty in general renders the employment relationship
intolerable and incapable of restitution. See
also
Central News
Agency v CCAWUSA & another (1991) 12 ILJ 340 (LAC)
and
Toyota
SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340
(LAC).
There is also authority that holds the view that it is not
every act of dishonesty that will lead to automatic dismissal. In
Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21
ILJ 340 (LAC),
the Court found that it is not an invariable rule
that offences involving dishonesty necessarily attract the sanction
of dismissal.
[26] It is clear from the
above that the duty to show that the trust relationship between an
employer and employee has broken down
due an act of serious
misconduct rests with the employer. Mlambo JA in the recent
unpublished case of
EDCON Ltd v Pillemer NO and Others case number
191/08
held that:
“
[22] Pillemer
was entitled and in fact expected, in the scheme of things, to
explore if there was evidence by Edcon and/or on record
before her
showing that dismissal was the appropriate sanction under the
circumstances. This was because Edcon’s decision
was
underpinned by its view that the trust relationship had been
destroyed. She could find no evidence suggestive of the alleged
breakdown and specifically mentioned this as one of her reasons for
concluding that Reddy’s dismissal was inappropriate.
A reading
of the award further reveals that in addition to this finding
Pillemer also found that in the context of that matter
Reddy’s
long and unblemished track record was also an important consideration
in determining the appropriateness of her dismissal.
[23] . . .
in my view, Pillemer’s finding that Edcon had led no
evidence showing the alleged breakdown in
the trust relationship is
beyond reproach. In the absence of evidence showing the damage Edcon
asserts in its trust relationship
with Reddy, the decision to dismiss
her was correctly found to be unfair. She cannot be faulted on any
basis and her conclusion
is clearly rationally connected to the
reasons she gave, based on the material available to her. She did not
stray from what was
expected of her in the execution of her duties as
a CCMA arbitrator.”
[27] Turning to the facts
of this case the arbitrator cannot be faulted for arriving at the
conclusion that the dismissal was unfair
because of the severity of
the sanction. The employer has the responsibility of setting the
standard of conduct he or she requires
employees to comply with and
to apply such standard consistently. Failure to apply the standard
consistently could lead to the
conclusion that non compliance with
the standard by the employee cannot be regard as serious enough to
warrant a dismissal.
[28] Whilst the facts of
the case of the employee and those of Ms Molelekeng are not exactly
the same, it is apparent that the arbitrator
considered the issue of
consistency in the context of the broader standard set by the
applicant. It would seem the applicant is
an employer who does not
apply the so-called zero tolerance to acts of dishonesty. In the case
of Ms Molelekeng the applicant was
prepared to treat forgery of a
certificate as not being so serious to warrant a dismissal. In this
respect the applicant was prepared
to enter into negotiations with a
fraudulent person and concluded the so-called plea bargaining
agreement with her. The same standard
was not used in measuring the
sanction to be imposed on the employee by the applicant and thus the
arbitrator was correct in exercising
his discretion by concluding
that dismissal of the employee was unfair. It is this factor that
influenced the commissioner’s
sense of fairness.
[29] It seems to me that
the person who could testify about the impact that the conduct of the
employee had on the trust relationship
was the executive mayor. There
is nothing in the record that indicates that such evidence was
presented by the executive mayor.
The facts of this case are
different to those of the employees in the
De Beer’s
case
where the employee denied wrongdoing and showed no remorse. The same
distinction applies to the facts in the
Hulett Aluminium (Pty) Ltd
v Bargaining Council for Metal Industry & Others (2008) 29 ILJ
1180 (LC)
where this Court held that:
“
[45] It would
in my view be unfair for this court to expect the applicant to take
back the employee when she has persisted with
her denials and has not
shown any remorse. An acknowledgment of wrongdoing on the part of the
employee would have gone a long way
in indicating the potential and
possibility of rehabilitation including an assurance that similar
misconduct would not be repeated
in the future.
See in this
regard
De Beers Consolidated Mines Ltd v CCMA & others (2000)
21 ILJ 1051 (LAC).”
[30] In the present case
it is common cause that the employee performed her duties with
excellence and integrity. She was competent
and efficient in what she
was employed to do. Unlike in
De Beers and Hulett Aluminium
cases
the employee owned up to her wrong doing as soon as she was
confronted with the allegations relating thereto.
[31] In my view, there is
no basis for interfering with the decision of the arbitrator and
furthermore I see no reason in law and
fairness in the circumstances
of this case why costs should not follow the results.
[32] In the premises the
application to review and set the arbitration award issued under the
case number GPD010712 and dated 26
th
January 2008 is
dismissed with costs.
_______________
Molahlehi J
Date of Hearing
: 22
nd
October
2009
Date of Judgment
: 18
th
November 2009
Appearances
For the Applicant
: Adv G Raath
Instructed by
: Motlatsi Seleka
Attorneys
For the
Respondent: Adv H Barnes
Instructed by
: Cheadle Thompson
&
Haysom Attorneys