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[2009] ZALCCT 14
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Pietersen v Majila NO and Others (C296/2005) [2009] ZALCCT 14 (10 March 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO. C296/2005
In
the matter between:
WESSEL
JOHANNES HENRICK
JURIE
PIETERSEN
..................................................................................................................
Applicant
And
ABEL
VUMILE MAJILA
NO
.........................................................................................
1
ST
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
.............................................................................
2
ND
Respondent
ESKOM
:
NORTH WEST
REGION:
KIMBERLY
...................................................................................................
3
RD
Respondent
J
U D G M E N T
CELE,
J
Introduction
[1]
The applicant seeks to have the arbitration award dated 24 February
2005 issued by the first respondent as a commissioner of
the second
respondent, reviewed and set aside, only to the extent of its
relief. The first respondent ordered the third respondent
to
re-employ the applicant, who now seeks an order of reinstatement.
The applicant unsuccessfully applied for the rescission
of the relief
component of the award. He also seeks to have the rescission
ruling reviewed and set aside. The application
has not been
opposed by the third respondent in its capacity as the erstwhile
employer of the applicant.
The
background facts
[2]
The applicant was employed by the third respondent for a period of
about 29 years up to the date of his dismissal. He
was employed
as a project co-ordinator of the third respondent (“Eskom”).
He was based at Kimberley. He
was actually a project
co-ordinator of the stencilling project that entailed the marking of
the support poles of 22 000 kilometres
of overhead electrical
cables. At the time of his dismissal, he was earning an amount
of about R14 835, 00 per month.
[3]
The stencilling was done by consultants, who employed their own field
staff. The consultants had to verify the work and
they were
employed to oversee the process. They would then submit
invoices to the applicant for payment. There was
an issue about
whether or not the applicant was office bound or could go out and
inspect the actual work that was done in the field.
On 3
December, the applicant was served with a notice of a disciplinary
hearing and Eskom had preferred three charges against him,
these were
charges of misconduct. They were described as:
“
Misconduct
30
‘Makes a false statement or
representation, which relates to or ensues from his duties’
In
that-
You
certified invoices for payment to the contractor for work done,
despite the fact that the re-stencilling of the feeders was
not
completed. (invoices-BNB-Pole-003-Rooipad-Feeder and BNB Pole
004-Sonvlei and Augrabies Feeder).
(Charge
1)
Misconduct
29
‘
Commits an act which is
detriment to Eskom’
In
that-
You
authorised the following invoices with incorrect quantities (invoices
BNB-Pole-001 and 002 and 003)
You
authorised invoices for incomplete work (BNB-Pole-001 to 004)
(Charge
2)
Misconduct
28
‘
Negligent in performing his
duties’
In
that you neglected to inform Eskom of the following:
a)
Your son was doing work for the contractor
and received payment for work done as well as the fact that the work
done by your son
relates to Eskom business. You certified
invoices of the contractor relating to work done by your son.
(Charge
3)”sic
[4]
He was subjected to a disciplinary hearing. He pleaded not
guilty. However, his plea notwithstanding, he was found
guilty
and he was discharged. Perhaps I should be more specific about
the charges. In terms of the first misconduct,
he was
dismissed. In terms of the third misconduct relating to his
son, it was one day suspension. It would appear
that for the
first and the second charges it was dismissal, but for the third one
involving his son, it was a suspension for one
day. His appeal
was not successful. The matter was then referred to
conciliation and thereafter to arbitration by the
second respondent
and the first respondent was appointed to arbitrate it. Various
witnesses were called at the arbitration
hearing and at the end of
it, the first respondent had the following to say:
“
I
believe the contention of the Employee that he was acting as a
conduit, is unconvincing in this regard. In fact, the testimony
of witnesses indicated quite clearly that the person whom they spoke
to for the project was the Employee. If the Employee
was a go
between, why did he not disclose it to the witnesses? I am
therefore convinced on a balance of probabilities that
the Employee
acted in his own right when he employed the witnesses. The
Employee I believe had the power to appoint Sub-Contractors.
Whether the Employee was advancing self-interest in my opinion is not
quite clear from the evidence. In other words not sufficient
evidence was placed before me to enable me to draw that inference.
I therefore will prefer not to make a finding on this
aspect. I
believe that the rest of the questions I have posed hereinbefore,
have already been answered and as such I do not
see the need to
repeat myself.
FINDING
I
am of the opinion that the Employer could not conclusively prove that
the Employee was dishonest. I believe the Employee
was
negligent instead of being dishonest. In the circumstances I
believe that the ‘dismissal’ as a sanction
in casu
is inappropriate. The Employee should rather have received a
final written warning, if one has regard to his seniority with
the
Employer. I therefore find that the Employee’s dismissal
was unfair.
COSTS
I
make no order as to costs.
AWARD
In
the circumstances I find that:
(a)
The dismissal of the Employee is unfair.
(b)
The Employee must be re-employed on or before the close of business
on 28 February, 2005.”
[5]
The applicant has initiated the present proceedings limited basically
to the review of the relief component of the award as
I have
indicated. The basis of that being that the applicant was
basically entitled to a reinstatement as opposed to re-employment,
in
that the first respondent reached a decision which a reasonable
decision maker could not have reached in the circumstances.
Grounds
for review
[6]
In relation to the review grounds, among others, the following
submissions are made by the applicant:
that
the first respondent failed to apply his mind properly, or at all,
to the evidence, documentary and otherwise, placed before
him.
that
he interpreted the evidence before him in a manner which is so
manifestly unjustifiable that it warrants intervention of
this
Court.
that
he misconstrued fundamental and well known legal principals to the
extent that it can be said that the applicant did not
have the
benefit of a fair hearing.
that
he committed misconduct and gross irregularities in relation to his
duties as a commissioner of the second respondent as
envisaged by
section 145 of the Labour Relations Act. There are further
submissions that were made.
[7]
In respect of the rescission ruling, the applicant makes out a case
that the order that ought to have been issued was one of
reinstatement as opposed to re-employment. The submission I
have heard today also, coming from Mr Botha for the applicant,
is
that in terms of section 193, and when one looks at the evidential
material led before the first respondent, there really was
no basis
for re-employment as opposed to reinstatement.
[8]
In respect of the rescission ruling, perhaps I need briefly to refer
to what the first respondent said. Once there was
an
application for condonation, he addressed that, but that is not an
issue before me. He looked at section 144 of the Labour
Relations Act 66 of 1995 (“the Act”) and thereafter he
says the following:
“
One
must bear in mind that the employee seems to believe that I
mistakenly ignored his request for reinstatement. This belief
is a mystery to me, as I clearly am not bound by the request of the
employees, but is rather guided by what is appropriate, under
the
circumstances, after a thorough consideration of the conspectus of
facts placed in front of me. In fact
in
casu
I did not at all erroneously,
award re-employment, as the employee believes, but based on the facts
decided that dismissal, was
an inappropriate sanction, but the
employee should have been given a lesser sanction than dismissal.
In addition I am of
the view that the employee’s misconduct
could not be left unpunished, and as such I believe though the
employee does not
deserve dismissal, but that reinstatement is not an
appropriate award, instead that re-employment is the best in the
circumstances,
especially in the light of the nature of the
misconduct the employee has committed.”
Evaluation
[9]
He therefore declined to change the award. I may point out that
in terms of the papers before me, the applicant was re-employed,
but
he has since resigned from that employment and has found work
elsewhere.
[10]
Mr Botha has referred me to a number of decisions that are relevant
when it comes to the consideration of whether or not an
employee
ought to be reinstated as opposed to re-employment. One such is
Boxer Superstores (Pty) Ltd v Zuma & Others
2008 ZALAC 7
(9
May 2008)
reported on the www.saflii.org.za work page. It
is a judgment by Davis, JA, where he says the following:
“
Mr
Smithers correctly referred to the architecture of the Labour
Relations Act 66 of 1995 (“the Act”) and particularly
to
section 193(2) thereof. In a case as in the present dispute,
where it is found that an employer has not discharged the
onus of
proving that a dismissal was fair, the competent remedy is that of
reinstatement. Reinstatement is in fact the default
position.
Section 193(2) sets out alternative remedies that the Labour Court,
or an arbitrator, may utilise other than reinstatement.
These
include re-employment or compensation.”
[11]
He has referred me to further cases such as
Sentraal-Wes
Koöperatief Beperk v Food & Allied Workers Union &
Others (1990) 11 ILJ 977 (LAC)
at 994E, where the following
appears:
“…
.
prima
facie
if an unfair labour dismissal
occurs, the inference is that fairness demands reinstatement and it
is for the employer to raise the
factors which displays such
inference.”
[12]
In the decision of
Fedlife Assurance Ltd v Wolfaardt2002 (1) SA 49
(SCA) at [12], Froneman
, AJ said the following:
“
Generally
speaking, however, employees have gained much that they did not
previously have. Their primary remedy now is reinstatement
which must be ordered, unless specified conditions exist.”
[13]
I have already referred to the award. It is clear, when one
reads it, that the first respondent did not give reasons
why he opted
for re-employment as opposed to reinstatement. Such reasons can
only be determined when one looks subsequently
to what the first
respondent says when he is confronted with an applicantion to rescind
the order he made in terms of the relief.
Indeed section
193 is clear, the default relief is that of reinstatement.
Re-employment has a disadvantage to an employee,
because such an
employee as is the applicant, would stand to lose years of service
and a lot of further benefits that accrue with
it, because it means a
person who has a long service such as the applicant with 29 years of
contributing to the pension fund, would
lose the same, but the first
respondent was always conscious of the fact that the applicant had
these 29 years of service.
This is clear, because he did
include this in his award, he was alert to the fact that the
applicant had 29 years of service.
[14]
It is so that section 138 of the Act, permits a commissioner to give
brief reasons, but what is important is that a commissioner
must sort
of give some reasons instead of issuing an order that is not very
clear. In this instance, he issued an award,
but did not
clarify the reasons why he did not reinstate. I would not
consider that what the first respondent said in the
rescission ruling
is necessarily an afterthought, it is difficult to make out what was
in the mind of the first respondent at the
time of the issuing of the
award, but one can safely say that he, when issuing the rescission
ruling, was saying out those thoughts
that were in his mind when he
issued the award itself. I have already indicated that he was
alive to the fact that the applicant
had 29 years of experience.
In my view he would have reflected on this and he though
re-employment was the appropriate thing
to order.
[15]
As already indicated, this is a case where actually the applicant was
proved to have committed the acts of misconduct with
which he had
been charged. In my view, and I have expressed this view to Mr
Botha, there are irrelevant considerations that
the first respondent
allowed himself to be influenced by when he issued the award.
If he had not done that, he would easily
have pronounced that the
applicant is guilty as charged in respect, particularly, of the first
and second charges and not to look
at these other considerations such
as dishonesty or personal gain, because that was not the charge he
was facing.
[16]
If those considerations were used in order to address the questions
of mitigating circumstances, then one would have seen him
counting
more, such as for instance specifically the experience, that he had a
clean record and all of those things. There
are a lot of things
that he could have said to add on, and against them he could have
also pronounced on the nature of the misconduct
that the applicant
had been found guilty of. So it comes alone and one cannot just
say that these considerations were there
only to address the
sanction. I think he took them as part and parcel of the
considerations that reflect on the substantive
inquiry whether or not
the dismissal was for a fair reason.
[17]
In my view, the applicant was indeed guilty of the three charges,
particularly the first and the second, as they were framed
by the
employer. In my view, therefore, I conclude that the decision
reached by the first respondent cannot be described
as one that a
reasonable decision maker could not have reached. A reasonable
decision maker, looking at the totality of the
evidence, could have
concluded that the employee had committed misconducts, he needed to
be punished for them, but that notwithstanding
that, he was entitled
to re-employment and that being the case, therefore, the application
for the review of this award fails.
[18]
I therefore make the following order:
1.
The application to review the ruling, issued by the first respondent,
is dismissed.
2.
No costs order is made.
___________
CELE
J
DATE
OF HEARING : 10 March 2009
DATE
OF JUDGMENT : 10 March 2009
APPEARANCES
FOR
APPLICANT : Adv CH BOTHA
Instructed
by : A VAN TONDER ATTORNEYS