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[2010] ZALCJHB 49
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Public Servants Association obo Mamabolo v Kirstein and Others (JR746/09) [2010] ZALCJHB 49 (2 July 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NUMBER JR 746/09
In
the matter between:
PUBLIC
SERVANTS ASSOCIATION
obo
S M D
MAMABOLO
Applicant
and
P
KIRSTEIN
First
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Second
Respondent
THE
MINISTER OF HOME
AFFAIRS
Third
Respondent
THE
DEPARTMENT OF HOME
AFFAIRS
Fourth
Respondent
JUDGMENT
BHOOLA
J
Introduction
[1]
This is an application in terms of section 145 (2) of the Labour
Relations Act, 66
of 1995 (“the LRA”), in which the
applicant seeks a partial review and set aside or correction of the
arbitration award
issued by the first respondent (“the
arbitrator”) under the auspices of the second respondent. The
third and fourth
respondents (“the respondents”) oppose
the review and have filed an application for counter review and seek
condonation
for the late filing of the counter review.
The
facts
[2]
The applicant was employed by the fourth respondent as Director:
Identity Documents
from 1 December 1997. In this position he was
inter alia:
(a)
in charge of a National Key Point (the
offices of the fourth respondent where the National Population
Register is housed);
(b)
in charge of the National Population
Register and able to amend, insert or remove entries in the Register;
(c)
responsible for issuing South African
identity documents;
(d)
provided with access to classified
information.
[3]
In terms of the applicant’s position, public service
regulations
[1]
and his contract
of employment, he was required to obtain security clearance from the
National Intelligence Agency (“NIA”).
Clearance at the
appropriate security level would appear to have been issued when he
commenced employment
[2]
.
[4]
The security clearance procedure applicable at the fourth respondent
required the
applicant to complete a vetting form, which he did in
2003 and following which he was subjected to screening by the NIA
under the
National Strategic Intelligence Act, 39 of 1994 (“the
NSIA”)
[3]
, which included
polygraph testing as well as accessing personal records and relevant
information.
[5]
Following the appointment of Mavuso Msimang (“Msimang”)
as Director General
of the fourth respondent in 2007, he took steps
to deal with the prevailing corruption at the fourth respondent. One
of the tasks
he undertook was to ensure that that all senior
personnel had the necessary security clearance. As a result of this
process, it
transpired that the applicant’s security clearance
had been declined. The decision of the NIA to decline the applicant
security
clearance at the level of top secret (“the NIA
decision”) was communicated in writing to Msimang on 8 May
2008. Thereafter
Msimang obtained verbal assurance from the
Director-General of the NIA confirming the decision.
[6]
On 28 May 2008 Msimang advised the applicant in writing that he had
formed the
prima facie
view, based on the NIA decision, that the applicant could not be
trusted and that his services should be terminated. He invited
the
applicant to a meeting to discuss the matter. Following
correspondence from the applicant’s attorneys he was again
invited
to meet with Msimang, and his attorneys also requested
information on which the
prima facie
decision (as they understood it) to dismiss had been taken. This was
provided to the applicant and he was again urged to make
representations to Msimang. The parties met on 2 June 2008 following
which the applicant was again urged to respond to the concerns
that
he was a security risk and concerns about the trust relationship. He
denied that he was a security risk and objected to the
security
clearance vetting process, which he had previously formally objected
to. Further correspondence between the parties ensued
and on 17 June
2008 the applicant was dismissed.
[7]
The applicant’s dismissal was effected by way of a termination
letter in which
Msimang informed him,
inter alia,
as follows:
"The
Department requires all its senior employees to be in possession of
security clearances. Without it you cannot perform
duties as a
director. In addition, you are a very senior employee and as a
director, would always require some form of security
clearance.
Without it, I cannot trust you. If I cannot trust you in your current
position, I cannot trust you in other positions.”
[8]
At the time of his dismissal disciplinary proceedings against the
applicant on charges
involving misconduct were pending, but were
terminated as a result of his dismissal
[4]
.
[9]
Thereafter the applicant lodged an unsuccessful appeal against the
NIA decision in
terms of section 2A (8) of NSIA. This was followed by
an unfair dismissal dispute and in the award issued on 30 January
2009 the
arbitrator held the dismissal of the applicant to be
substantively and procedurally unfair, but declined to reinstate him.
Instead,
the employer was ordered to pay him compensation equivalent
to 7 months’ remuneration.
The
grounds of review
[10]
The arbitrator failed to apply his mind properly and reached a
conclusion which a reasonable
decision maker could not have reached
in that:
(a)
he attached weight to the applicant’s failure not to review the
NIA decision;
(b)
he found that reinstatement was not appropriate in the circumstances
because of the NIA decision;
(c)
he found that the dismissal on the grounds of lack of a security
clearance was substantively unfair;
(d)
he failed to properly consider that the applicant had been performing
his work satisfactorily for many years and could have
been
accommodated in an alternative position.
[11]
The arbitrator considered irrelevant considerations, or conjured up
considerations in deciding
not to reinstate the applicant in that:
(a)
no evidence was led demonstrating that the hearsay allegations
underpinning the refusal of top secret security clearance in
respect
of the applicant were true;
(b)
no consideration was given to the applicant’s reinstatement and
possible placement in an alternative position in the public
service;
(c)
he failed to attach proper weight to the fact that no evidence was
advanced in respect of the breakdown of the trust relationship
between employer and employee, and that on the contrary there was
uncontested evidence that the applicant’s relationship
with
Msimang had not “soured”.
[12]
The arbitrator did not properly apply his mind, alternatively came to
a conclusion which a reasonable
arbitrator could not have reached,
when he concluded that reinstatement would not be practical in the
light of the following uncontested
evidence:
(a)
the security clearance issue was merely a recommendation from the
NIA;
(b)
the recommendation was based on rumours and untested allegations
concerning workplace conduct
rather than matters of national
security;
(c)
Msimang’s decision to dismiss the applicant was based purely on
this recommendation;
(d)
none of the rumours, suspicions or allegations on which the
recommendation was based had
been properly tested;
(e)
there was no factual basis upon which it could be said that
reinstatement would be impractical.
[13]
The arbitrator acted unlawfully or unreasonably in failing to order
reinstatement so that a disciplinary
proceedings into the alleged
misconduct of the applicant could be conducted, or a proper process
based on dismissal for operational
requirements could be undertaken,
which may have resulted in his alternative placement in the public
service.
[14]
The arbitrator failed to take into account that in terms of section
210 of the LRA the applicant’s
right not to have been unfairly
dismissed trumped any right of the employer to dismiss based on the
security clearance issue.
[15]
The arbitrator exceeded his powers in not properly understanding and
applying section 193(2)
of the LRA (which required him to reinstate
unless the factors specified in the sub section existed), and in so
doing he committed
misconduct in his duties and this rendered the
proceedings defective.
[16]
The arbitrator committed misconduct or committed a gross irregularity
in the conduct of the arbitration
by not properly applying his mind
to the evidence and arguments before him and by considering
irrelevant matter or conjuring up
unproven considerations.
[17]
In the alternative, the award is reviewable because the arbitrator
came to a conclusion which
a reasonable arbitrator could not have
reached in terms of the
Sidumo
test
[5]
.
The
third and fourth respondents’ opposing submissions
[18]
The respondents made the following submissions in opposing the
review:
(a)
The arbitrator correctly placed weight on
the fact that the applicant chose not to seek judicial review of the
NIA decision, as
a result of which he had no jurisdiction in respect
of the reasons for the decision. Moreover the NIA was not a party to
the arbitration,
and the only means by which the applicant could have
challenged the decision was by way of judicial review, which he had
elected
not to do.
(b)
The arbitrator was correct in finding that
reinstatement was not an option. The applicant admitted that security
clearance was a
requirement for the continued performance of his
employment responsibilities. His length of employment was not
relevant in that
his position required him to access classified
information for which a security clearance was required and such
clearance had been
declined. Once this occurred he could no longer
have continued to perform the job for which he had been employed.
(c)
The arbitrator was correct in finding that
redeployment was not a possibility in that the applicant admitted
there were no alternative
positions available to him in the event he
failed to obtain security clearance.
(d)
The denial of security clearance was self
evident proof that the trust relationship between the employer and
employee had broken
down in that the employer could not be expected
to trust a senior employee with sensitive and confidential
information in these
circumstances. In any event, once the applicant
had failed to obtain a security clearance his continued employment
with the fourth
respondent was no longer possible.
(e)
The submission that the arbitrator should
have ordered reinstatement to enable a full hearing into alleged
misconduct is untenable
and the only avenue available to the
applicant to challenge this was by way of review, which he had not
pursued. The fourth respondent
had no authority to investigate the
reasons for the NIA's decision and was empowered only to act on it.
The
third and fourth respondents’ counter review
[19]
The counter review is based on the following grounds:
(a)
the arbitrator erroneously concluded that
the applicant's dismissal was based on misconduct and not his
failure to obtain
the required security clearance;
(b)
the arbitrator erred in finding that the
dismissal was unfair as a result of the delay on behalf of the NIA in
completing the security
clearance vetting process;
(c)
the arbitrator erroneously concluded that
the NIA decision constituted a recommendation and not a final and
binding decision, and
that Msimang was not obliged to accept the
decision unconditionally;
(d)
the arbitrator erroneously concluded that
there was no prescribed security level for the applicant's position
when in fact top secret
security clearance was required;
(e)
in all the circumstances the arbitrator
erroneously concluded that the dismissal was unfair;
(f)
the arbitrator erred in finding that the
fourth respondent had no substantiation for the allegations that led
to the failure to
grant the security clearance, and that the fourth
respondent was required to obtain such substantiation;
(g)
the arbitrator erred in finding that the
fourth respondent had refused the applicant an opportunity to respond
to the NIA decision;
and
(h)
the arbitrator erred in assuming that a
duty rested on the fourth respondent to review the NIA's decision.
Condonation
[20]
Before dealing with the merits of the counter review it is necessary
to deal with the application
for condonation of late filing of the
counter review. The applicant opposes the granting of condonation.
In my view good
cause exists for granting of condonation in
that the explanation for the delay, given that the public purse is
involved, constitutes
a satisfactory explanation and the period of
the delay is moreover not excessive. Furthermore there would appear
to be some prospect
of success (see
Universal
Product Network (Pty) Ltd v Mabaso
[2006] 3 BLLR 274
(LAC) at [48]) and the interests of justice would
support condonation. Lastly, the applicant could not legitimately
claim to be
prejudiced by a decision to dispose of the counter review
and the review simultaneously.
The
review standard
[21]
It is by now trite that the test on review is as articulated in
Sidumo
(supra) and is whether the decision is one that a
reasonable decision maker could not reach. Navsa AJ articulated this
as follows:
“
[110]
To summarize, Carephone held that s 145 of the LRA was suffused by
the then constitutional standard that the outcome of an
administrative decision should be justifiable in relation to the
reasons given for it. The better approach is that s 145 is now
suffused by the constitutional standard of reasonableness. That
standard is the one explained in Bato Star: Is the decision reached
by the commissioner one that a reasonable decision maker could not
reach? Applying it will give effect not only to the constitutional
right to fair labour practices, but also to the right to
administrative action which is lawful, reasonable and procedurally
fair.”
[22]
In relation to the test to be applied by an arbitrator in these
circumstances, Ngcobo J
[6]
affirmed the following:
“
There
can be no question that the ultimate test that a commissioner must
apply is one of fairness. This test is foreshadowed
both in
section 23 of the Constitution
[7]
and section 188 of the LRA.
[8]
All the parties accepted this. And this is the effect of the
judgment of the Supreme Court of Appeal and the decisions
of the
Labour Appeal Court which have had the occasion to consider the test
to be applied by commissioners”.
And
further:
“
It
is manifest from the very conception of fairness that the
commissioner must hold the balance evenly between the worker and the
employer. And fairness to both workers and their employers
means the absence of bias in favour of either. The LRA makes
it
quite clear that the ultimate test that the commissioner must apply
is one of fairness. This is apparent from section
188 of the
LRA. The question however is whether there are any constraints
on the exercise of the power to determine fairness”.
[23]
In considering the reasonable decision maker test as articulated
above, Sangoni AJA
stated
as follows
in
Edcon
Ltd v Pillemer NO
&
Others
(2008)
29 ILJ 614 (LAC)
[9]
:
“
If
the commissioner made a decision that a reasonable decision maker
could not reach, he/she would have acted unreasonably which
could
then result in interference with the award. This, in my view, boils
down to saying the decision of the commissioner is to
be reasonable.
To my understanding the dictum in Sidumo is not about shifting from
the ‘reasonable employer test’ in
favour of the so-called
reasonable employee test. Instead, meaningful strides are taken to
refocus attention on the supposed impartiality
of the commissioner as
the decision maker at the arbitration whose function it is to weigh
up all the relevant factors and circumstances
of each case in order
to come up with a reasonable decision. It is in fact the relevant
factors and the circumstances of each case,
objectively viewed, that
should inform the element of reasonableness or lack thereof”.
Merits
of the review
[24]
In considering the appropriate remedy the arbitrator acknowledged
that since the applicant sought
reinstatement he was mandated by
section 193 (2) of the LRA to order reinstatement unless
the provisions of section
193 (2) (a) to (d) were applicable. He
found that notwithstanding lack of proof that top secret security
clearance was a requirement
for the applicant’s position, he
was obliged to accept the validity of the NIA decision in the absence
of a challenge. Accordingly,
he determined that a reinstatement order
would not be practical until the NIA decision (also referred to as
the “negative
security clearance”) had been reviewed and
set aside. Given that the applicant failed to exercise his remedies
in this regard
he found that the maximum compensation in terms of
section 194 of the LRA was not appropriate, and that if the applicant
were to
succeed in a review he would in any event have a contractual
claim for reinstatement. He therefore found that but for the negative
security clearance, reinstatement would have been appropriate, and
awarded compensation equal to 7 months’ remuneration as
being
just and equitable in the circumstances (being the period from the
date of dismissal (17 June 2008) until finalisation of
the
arbitration (14 January 2009)).
[25]
In my view this is an eminently sensible and reasonable approach when
regard is had to the evidence
and in particular to the nature of the
applicant’s position and the circumstances surrounding the NIA
decision.
[26]
It is trite that commissioners have a wide discretion in regard to
remedy, and the courts are
reluctant to interfere with this unless
the decision is manifestly unreasonable and irrational: see
Boxer
Superstores (Pty) Ltd v Zuma
&
Others
(2008) 29
ILJ 2680 (LAC).
In my view the
arbitrator provided sufficient reasons for his decision to order
compensation instead of the default remedy and his
reasoning (even in
the absence of specific reference to the requirements of section 193
(2) (c)) cannot be faulted as being a reviewable
irregularity.
Merits
of the counter-review
[27]
The respondents’ counter review is based essentially on two
main grounds. Firstly, the
arbitrator made a finding which no
reasonable decision maker could have reached and this justifies
setting aside the award; and
secondly, in enquiring into the
correctness of the NIA decision the arbitrator exceeded his powers.
[28]
In regard to the first main ground of review the respondents contend
that the arbitrator correctly
found that he could not interfere with
the validity of the security clearance. Once he made this finding,
they submit, he could
not properly have found that the dismissal was
substantively unfair or that failure to investigate the reasons
behind the NIA decision
constituted procedural unfairness.
Nevertheless he proceeded to make these contradictory findings and
furthermore sought to investigate
the correctness of the NIA
decision. This resulted in a material misdirection and accordingly he
reached a finding that no reasonable
decision maker could have
reached on the evidence before him.
[29]
No reasonable decision maker could have concluded that the decision
of the NIA was anything other
than a binding decision; and no
reasonable decision maker could have concluded that the fourth
respondent was not bound by that
decision in circumstances where the
exception provided for in Chapter 5, paragraph 10(2) of the MISS
[10]
had not been satisfied. On this basis the respondents submitted that
the applicant failed to satisfy the
Sidumo
test for review. As the NIA's decision was binding and the fourth
respondent was obliged to act in accordance with it, the decision
not
to reinstate the applicant was clearly reasonable in instances in
which he could no longer perform his functions.
[30]
In relation to the ground of review based on section 145 (2) (a)
(iii) that the arbitrator exceeded
his powers, the respondents
submitted that this ground had been satisfied in that the arbitrator
sought to determine whether or
not the NIA decision was correct. He
had no jurisdiction to do so. The only basis on which the NIA
decision could have been challenged
was by way of administrative
review which the applicant elected not to seek. The arbitrator’s
approach in essence amounted
to a review of the NIA’s decision
and in so doing he exceeded his powers.
[31]
The respondents, relying on
Council for Scientific and Industrial
Research v Fijen
1996 (2) SA 1
(A), submitted that the reason for
the applicant’s dismissal arose from his breach of a material
term of his employment,
and was lawful. Alternatively, the failure to
obtain the necessary security clearance rendered the applicant
incapable of performing
his functions. The respondents were at pains
to submit that the dismissal was for a fair reason and there was
accordingly no need
for the respondent to classify it as either an
incapacity or operational requirements dismissal – in the
circumstances all
that the arbitrator was required to do was to
assess whether the dismissal was for a fair reason, as was held in
SABC v CCMA
[2006] 6 BLLR (LC). The arbitrator’s
conclusion therefore that the dismissal should have been categorised
as an operational
requirements dismissal was incorrect. In this
regard it was contended (contrary in my view to the submission made
above that the
arbitrator erroneously found that he had been
dismissed for misconduct ) that he had been dismissed for incapacity
in that the
failure to obtain security clearance rendered the
applicant unfit to perform the functions required of his position.
Moreover,
without the security clearance he could not have been
alternatively deployed.
[32]
In regard to procedural fairness the respondents submitted that the
applicant had been given
an opportunity to make verbal
representations, as well as two opportunities to make written
representations, rendering his dismissal
procedurally fair. In
finding that the applicant had not been given an opportunity to
respond to the allegations underlying the
NIA decision the arbitrator
“
erred grossly for the fourth respondent was neither able
nor obliged to investigate the reasons behind the security clearance
refusal;
it was merely required to act on the basis of that
decision
”. The arbitrator’s finding that the NIA
merely made a recommendation and it was for the fourth respondent to
make a
decision based on the recommendation, was incorrect.
[33]
The arbitrator’s reliance on Msimang’s failure to
investigate the reasons that underpinned
the NIA decision resulted in
his unsupported conclusion that its “
unconditional
acceptance
” of the decision created the “
perception
that the respondent attempted to find a shortcut to terminate the
applicant’s services”.
The approach of the
arbitrator was flawed - he could not have expected the fourth
respondent to investigate the work done
by the NIA and any suggestion
to this extent is ludicrous. In so finding he committed a gross error
that rendered his award so
unreasonable that no reasonable decision
maker could have made that decision, alternatively committed a gross
irregularity, or
alternatively exceeded his powers. However, he went
further and also purported to make a finding as to the correctness of
the NIA
decision in that he recorded his agreement with the
applicant’s submission that the NIA’s reasons appear to
relate
to workplace misconduct rather than national security. By so
finding and relying on this finding to suggest that the NIA decision
was not based on sufficient grounds to justify the termination of the
applicant’s employment, which finding included the
assumption
that the decision of the NIA may have been flawed, he exceeded his
powers, and this renders his award reviewable.
[34]
In addition to the above the respondents’ heads of argument
raised a number of irrelevant
issues which I am not required to deal
with.
The
arbitration award
[35]
In analysing the evidence led the arbitrator stated that the fact
that a negative security clearance
was issued was not in dispute and
had to be accepted as valid until overturned on review. He therefore
accepted that he had no
jurisdiction in respect of the validity of
the NIA decision, and proceeded to identify the issue to be
determined as being whether
the dismissal for the lack of a security
clearance was fair.
[36]
He then had regard to the various statutes and policies applicable to
security clearances, including
the Minimum Information Security
Standards (“MISS”) approved by Cabinet in December 1996,
paragraph 9 of which provides
for the screening authority (the
NIA in this instance) to investigate and advise on the security
competence of a person on the
basis of prescribed guidelines.
Thereafter the screening authority “
will
merely make a recommendation regarding the security competence of the
person concerned to the head of the requesting institution,
and this
should in no way be seen as a final testimonial as far as the
utilisation of the person is concerned
”
[11]
.
The
policy provides further as follows:
“
10.1
The head of an institution or his delegate must make a decision and
issue a clearance after receiving the recommendation
made by the
screening institution, and in accordance with
circumstances/information at his/her disposal.
10.2
Notwithstanding a negative recommendation from the screening
authority, for whatever reason, the head of
the institution may
still, after careful consideration and with full responsibility, use
the person concerned in a post where he/she
has access to classified
matters if he/she is of the opinion that the use of the person is
essential in the interest of the RSA
or his/her institution, on the
understanding that a person satisfying the clearance requirements is
not available”.
[37]
The arbitrator then referred to section 17 of the Public Service
Act
[12]
, which expressly
requires dismissals to be conducted in accordance with the LRA. On
behalf of the fourth respondent it was submitted
that if the
applicant’s conduct was required to be categorised as a
dismissal it should be categorised as a dismissal due
to incapacity.
However, the arbitrator concluded that since section 17 (2) of the
Public Service Act describes incapacity as arising
only from health
or injury and/or poor work performance, none of which are
applicable to the applicant, his dismissal should
be more
appropriately categorised as an operational requirements dismissal.
Accordingly, the peremptory requirement to comply with
the LRA
required the fourth respondent to take into consideration all
relevant factors prior to making the decision to terminate
the
applicant’s services.
[38]
The arbitrator found that no evidence was presented why the applicant
in his position required
a security clearance at the level of
top-secret. The Internal Security Policy of the fourth respondent
referred simply to three
levels of clearance and Msimang had made
reference only to "
some form of
security clearance"
being
required. Furthermore, there was no indication that an objective
analysis had been undertaken to determine the level of security
clearance required for the applicant's position.
Conclusion
[39]
In my view the arbitrator’s conclusion, particularly in regard
to the hastiness in which
the summary termination of the applicant
occurred and its implications for procedural and substantive
fairness, cannot be faulted
on the
Sidumo
test. His conclusion
appears to emanate from a careful consideration of the material
presented to him at the arbitration. In this
regard the arbitrator
took into account the following relevant facts : the applicant had
been employed in the same capacity dealing
with classified
information for 11 years; he had received praise from Msimang; he had
been granted an initial security clearance
on commencement of
his employment; the second vetting process embarked upon in 2003
appears to have been conducted over an
extended period at least until
2006; if indeed top-secret clearance was required it raised the
question why the NIA failed to inform
the fourth respondent as soon
as possible of the negative security clearance (it was only after an
enquiry was made in this regard
in 2008 that the response was
forthcoming two days after the request). In these circumstances his
finding that Msimang was entitled
to and should have treated the
negative security clearance as a mere recommendation and that his
unconditional acceptance was unjustified,
cannot be said to be
unreasonable. This is particularly so in the light of the facts that
the NIA decision appears to have surfaced
at a time that was
coincidentally convenient to the respondents at the stage at which
they had led evidence at the disciplinary
proceedings and had to make
a decision as to the future course. The arbitrator also took into
account the fact that although the
disciplinary proceedings arose
from charges of misconduct, the NIA decision appeared to be based
mainly on issues involving misconduct
rather than national security
(which would more properly be its domain). The arbitrator
accordingly, in my view, was justified
in finding that the
unconditional acceptance of the NIA decision created the perception
that the fourth respondent attempted to
find a shortcut to terminate
the applicant’s services. It is for this reason that the
arbitrator determined that the dismissal
of the applicant was
substantively unfair, and his reasoning and conclusion in this regard
cannot be faulted.
[40]
In regard to procedural unfairness, the arbitrator found that the
applicant had been afforded
the opportunity to make representations
regarding his negative security clearance. The applicant's response
was that the allegations
stated as reasons for the decision were
unfounded. On Msimang’s own version, he had not seen any
substantiation of the alleged
reasons given for the negative security
clearance, and there was no justifiable basis for him to reject the
applicant’s request
to have the opportunity to respond to the
allegations. The allegations moreover lacked factual substance and
the applicant could
accordingly not have responded to them as such.
In these circumstances the conclusion that the dismissal of the
applicant was procedurally
unfair cannot be said to be unreasonable.
[41]
A number of the submissions made by the applicant in the counter
review are more apposite to
an appeal, although scrutiny of the
merits on the
Sidumo
standard
blurs the distinction, as was envisaged by the Constitutional Court
in the following terms
[13]
:
“
Review
for reasonableness, as explained by Professor Hoexter, does threaten
the distinction between review and appeal. The
Labour Court in
reviewing the awards of commissioners inevitably deals with the
merits of the matter. This does tend to blur
the distinction
between appeal and review. She points out that it does so in
the limited sense that it necessarily entails
scrutiny of the merits
of administrative decisions. She states that the danger lies,
not in careful scrutiny, but in “judicial
overzealousness in
setting aside administrative decisions that do not coincide with the
judge’s own opinions.”
This Court in Bato Star
recognised that danger. A judge’s task is to ensure that
the decisions taken by administrative
agencies fall within the bounds
of reasonableness as required by the Constitution.
[42]
In my view the first main ground of the counter review, that the
arbitrator’s findings
were erroneous and therefore
unreasonable, cannot be sustained. Even if it is correct that he made
incorrect findings on the facts
before him, the respondent would have
to establish that these errors are so gross as to constitute
misconduct (in the form of a
failure to apply his mind or another
material misdirection) or gross irregularity (in respect of either
the process or the outcome),
and this submission, in my view, cannot
be sustained on the evidence led in the arbitration.
[43]
The review on the second main ground is in my view similarly
unfounded. At no point does it emerge
that the arbitrator effectively
reviewed or investigated the NIA decision. He simply reinforced the
principle that an employer
cannot act arbitrarily and unfairly in
accepting a decision based on misconduct allegations without
affording the employee his
statutory rights to procedural and
substantive fairness. This is a fundamental precept of our labour
law. In accepting the validity
of the NIA decision, but requiring the
employer to comply with these basic precepts he did not review the
correctness of the decision,
but simply reiterated the need for
compliance with the requirements of a fair dismissal. This reinforced
the requirement that the
employer should have applied its mind not to
the validity of the NIA decision but to whether it on its own
constituted a valid
reason for dismissal, and in addition whether the
applicant should have been afforded a meaningful opportunity to state
his case.
It cannot therefore be said that there was a manifest
failure by the arbitrator to apply his mind to the evidence or that
he otherwise
misdirected himself. Nor can be said that that his
conclusion or the process were tainted by gross irregularity or
excess of power.
Therefore,
in the light of
the reasoning of the arbitrator based on the material before him, it
cannot be said that his conclusion was one
that a reasonable
decision-maker could not reach.
Order
[44]
In the premises I make the following order:
(1)
The application for partial review is
dismissed, with costs.
(2)
Condonation is granted for the late filing
of the counter review.
(3)
The counter-review application is
dismissed, with costs.
__________________________
Bhoola
J
Judge
of the Labour Court of South Africa
Date
of hearing: 2 June 2010
Date
of judgment: 2 July 2010
Appearance:
For
the Applicant: Advocate F van der Merwe instructed by Bouwers
(Roodepoort) Inc
For
the Third and Fourth Respondents: Ms K Savage, Bowman Gilfillan
[1]
Part
VII: Procedure for Appointment, Promotions and Termination of
Service, Government Gazette volume 427 number 21951, 5 January
2001.
[2]
This
was the applicant’s evidence at the arbitration although he
stated that it had been retained by the NIA.
[3]
Section
2A(6) of the NSIA empowers the head of the NIA to “after
evaluating the information gathered during the security
screening
investigation, issue, degrade, withdraw or refuse a security
clearance”.
[4]
The
report of the chairperson of the disciplinary hearing is instructive
in setting out the circumstances applicable to the termination
of
the disciplinary proceedings, which the arbitrator undoubtedly had
regard to.
[5]
See
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007)
28 ILJ 2405 (CC ).
[6]
Sidumo
supra at para [168] and [172].
[7]
Section
23(1) of the Constitution provides:
“
Everyone
has the right to fair labour practices.”
[8]
Section
188 of the LRA provides:
“
(1)
A dismissal that is not automatically unfair, is unfair if the
employer
fails to prove—
(a)
that the reason for dismissal is a fair reason—
(i)
related to the employee’ s conduct or capacity; or
(ii)
based on the employer’ s operational requirements; and
(b)
that the dismissal was effected in accordance with a fair procedure.
(2)
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.”
[9]
A
t
para 21.
[10]
This
is discussed below in the section on the arbitration award.
[11]
Paragraph
9.2.
[12]
1994,
as amended by the Public Service Amendment Act, 30 of 1997.
[13]
Sidumo
supra a
t
para 109.