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[2010] ZALCJHB 23
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Department of Correctional Services v Sibeko NO and Others (JR1335/09, JR1756/09) [2010] ZALCJHB 23 (21 October 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR1335/09
and JR1756/09
In
the matter between:
DEPARTMENT
OF CORRECTIONAL
SERVICES
A
pplicant
and
SIBEKO
Z S
N.O
1
st
R
espondent
GPSSBC
2
nd
R
espondent
POPCRU
obo
NGWENYA M S
S
3
rd
R
espondent
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review and set
aside the arbitration award of the first respondent (the
commissioner) issued under case
number PSGA344-08/09, dated 30
th
April 2009. In terms of the arbitration award the commissioner found
the dismissal of the third respondent (the employee) to have
been
unfair and ordered that he be reinstated. The leave to appeal
in this matter is decided on the written submissions made
by the
parties.
[2]
The employee has filed an application in
terms of s 158 (1) (c) of the Labour Relation Act 66 of 1995 (the
LRA), in terms of which
he seeks an order making the arbitration
award an order of court.
Background facts
[3]
The background facts in this matter are
generally common cause. The employee who was prior to his dismissal
employed as a correctional
officer was dismissed for leaving a prison
gate opened resulting in the escape of one of the prisoners. At the
disciplinary hearing
the employee pleaded guilty and was for that
reason dismissed.
[4]
The employee being unhappy with the outcome
of the disciplinary enquiry referred an unfair dismissal dispute to
the second respondent
for conciliation and subsequent to that to
arbitration.
[5]
At the arbitration hearing, pursuant to the
agreement between the parties, witnesses were not called to support
their respective
cases. The parties agreed that the commissioner
should make his determination on the basis of the submissions made by
the respective
representatives of each party. The minutes of the
disciplinary hearing was never placed before the commissioner neither
was he
required to have regard to what transpired at the disciplinary
hearing.
The grounds for review
and arbitration award
[6]
The grounds for review are set out in the
founding affidavit of the applicant as follows:
“
10.1
The applicant’s representative in
the disciplinary hearing
did not make any submissions that the relationship of trust had not
broken down this is not
borne out by the minute of a disciplinary
hearing.
10.2
The applicant’s representative
in the disciplinary hearing did
not propose or ask for a sanction of a final warning. She requested
for more serious sanction of
a demotion as apparent from the minute
of the disciplinary hearing.
10.3
The first respondent did not give any regard
to the seriousness of
the misconduct, not withstanding that it is apparent from the minute
of the disciplinary hearing that the
applicant regards the misconduct
as a serious matter.
10.4
The first respondent gave undue weight
to the fact that the
applicant’s representative in the disciplinary hearing did not
seek dismissal of the employee as if
the presiding officer is obliged
to accede to the sanction proposed by the employer.”
The applicant further
contends that the commissioner’s award is reviewable on the
grounds that it is unreasonable.
[7]
In considering whether the dismissal was a
fair sanction the commissioner firstly, in his analysis of the
submissions which had
been made by the parties correctly observed
that the onus was on the applicant to show that the dismissal was
fair. The commissioner
further accepted the submission of the
employee that the applicant represented by the chairperson of the
disciplinary hearing failed
to take into account the mitigating
factors in arriving at his decision to dismiss the employee.
The commissioner further
reasoned that the dismissal was unfair
because there was no proof that the trust relationship between the
parties had broken down.
It seems one of the factors which influenced
the commissioner in arriving at the conclusion that the trust
relationship had not
broken down is the finding that the applicant
had suggested that the employee be issued with a final written
warning which the
applicant disputes.
Evaluation
[8]
In assessing whether or not to interfere
with the commissioner’s arbitration award the following need to
be noted:
·
No evidence was led by any of the parties
at the arbitration hearing;
·
The transcript of the disciplinary hearing
was not placed before the commissioner at the arbitration hearing;
·
The commissioner was required to assess the
fairness of the sanction imposed on the basis of the submissions made
by parties during
the arbitration proceedings;
·
The transcript of what was said by the
parties in their submissions during the arbitration hearing is not
before this court. It
therefore means the court is confined in its
assessment as to whether or not it should intervene by what is stated
in the arbitration
award.
[9]
The counsel for applicant argued that the
commissioner’s award was unreasonable because notwithstanding
the seriousness of
the offence committed by the employee and that the
employer had previously dismissed other employees who committed
similar offences
the commissioner found the dismissal to have been
unfair and ordered the reinstatement of the employee. The submission
is, in my
view, unsustainable regard being had to what is stated
above that no evidence was led regarding the merits of the dispute
neither
was the transcript of the disciplinary hearing placed before
the commissioner.
[10]
In support of her submission that the
arbitration award was unreasonable counsel for the applicant relied
on the decisions of
Toyota South
Africa Motors (Pty) Ltd v Radebe and Others
2000 (3) BLLR 234(LAC)
,
Standard Bank v CCMA
1998 6 BLLR 622
AT (LC)
at paragraph 21, and
Mondi
Kruft (Pty) Ltd v PPAWAWU & Others
1999 10 BLLR 1057
(LC)
at paragraph 17. It is now well established that the test to apply in
review is that of reasonable decision maker as enunciated
in
Sidumo
v Rustenburg Platinum Mines
2007
12 BLLR 1097
(CC)
. It is clear from
the papers that the task of the commissioner was limited to having to
assess the fairness of the sanction imposed
by the applicant.
[11]
In my view this matter has to be
considered within the confinement of the terms of the agreement which
spelt out the task of the
commissioner and in context where no
evidence was led, particularly by the employer who had the duty to
show that the dismissal
was for a fair reason or that the sanction
was fair.
[12]
The burden to show that a dismissal
was for a fair reason rest with the employer. Similarly, the duty to
show that the dismissal
was a fair sanction in the circumstances
rests with the employer. The employer discharges its burden of proof
by adducing evidence
to support its version that the dismissal was
for a fair reason and by also showing that in the circumstances of
the case a fair
sanction is dismissal.
[13]
In the present instance as indicated
earlier, no evidence was placed before the commissioner regarding the
fairness of the dismissal
or the sanction for that matter. The only
common cause facts placed before the commissioner in terms of what is
stated in the arbitration
award and upon which the fairness of the
sanction was to be determined can be summarized as follows:
·
The employee pleaded guilty to the charge
of leaving a gate unlocked resulting in the escape of one of the
prisoners;
·
The prisoner who had escaped a result of
the conduct of the employee was rearrested on the same day;
·
The employee was suspended and called back
to work after the completion of the investigation.
[14]
The applicant’s first ground of
review is unsustainable because the minutes of the disciplinary
hearing was never placed before
the commissioner. And more
importantly in as far as this ground is concerned the applicant never
led evidence regarding the break
down in the trust relationship. In
other words the applicant has failed to discharge its burden of
showing that the trust relationship
has broken down as a result of
the conduct of the employee.
[15]
The second ground is also unsustainable
because it is based on what happened at the disciplinary hearing, the
evidence of which
as indicated above was never placed before the
commissioner. In any case the observation of the commissioner in this
respect is
irrelevant because there is no evidence suggesting that
the employee was demoted.
[16]
I am also of the view that there is no
merit on the fourth ground of review. Similarly, there is no merit to
the fifth ground of
review. There is no evidence that in their
submission or in the agreement between the parties it was agreed that
should the commissioner
find the dismissal sanction to be unfair then
he should consider imposing another sanction.
[17]
In the light of the above discussion the
applicant’s application stands to fail. And as concerning costs
I see no reason in
law and fairness why they should not follow the
results.
[18]
As concerning the application to make the
arbitration award an order of court, I am satisfied that the third
respondent have made
out a case to have the award made an order of
the court.
[19]
In the premises I make the following order:
1.
The application to review and set aside the
arbitration award issued under case number PSGA 344-08/09 is
dismissed with cots.
2.
The arbitration award under case number
PSGA 344-08/09 is made an order of this court in terms of
s 158
(1)
(c) of the
Labour Relations Act 66 of 1995
.
_______________
Molahlehi
J
Date
of Hearing :
21
st
September 2o1o
Date
of Judgment :
21
st
October 2010
Appearances
For
the Applicant :
Adv JJ Bason-instructed
by :Grosskope Attorneys
For
the Respondent: MMS Baloyi- instructed by the State Attorney