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[2010] ZALCJHB 31
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Moolman v Education Labour Relations Council and Others (JR1358/2010) [2010] ZALCJHB 31 (5 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JR 1358/2010
In
the matter between
NORMAN
MOOLMAN 1st
Applicant
and
EDUCATION
LABOUR RELATIONS
COUNCIL 1st
Respondent
COEN
HAVENGA
N.O. 2nd
Respondent
GAUTENG
DEPARTMENT OF
EDUCATION 3rd
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
1.The
applicant seeks to set aside an arbitration award by the second
respondent issued on 26 February 2010 under case number PSES
413-08/09.
2.
Before the application could be considered two condonation
applications had to be determined. The first was for the late filing
of the applicant’s review application and the second for the
applicant’s non-compliance with the time limits in the
directions of the court to finalise the filing of the necessary
documents in the review application Both these applications
were granted. Reasons for granting these applications will be filed
in due course.
3.
When the matter came before this court on the previous occasion on an
urgent basis, both parties were present. At that hearing
the matter
was postponed to be heard on the ordinary opposed roll, subject to
directions for the parties to file the necessary
pleadings to make it
possible to finalise the review application. The applicant did what
was required of it, though late and the
third respondent could still
have filed any opposing affidavit within the ordinary time limits
before the hearing on 4 November
2010. No opposing affidavit
was filed and the third respondent did not attend the hearing.
Merits
of the review
4.
The applicant has been a teacher at a number of schools since 1980.
In May 2002 he was charged and found guilty of misconduct
at one
school. Despite appealing against the sanction a penalty of R 2000-00
was imposed, which the applicant accepted under protest.
In 2004 he
successfully applied for the post of a Deputy Principal. In the
course of applying for the position he had to reply
to two written
questions on forms he filled in relating the application, which read:
“
Convicted of
misconduct/criminal offence ? Yes/No”
“
Have you been
charged with professional misconduct in the public service?”
5.
Both questions the applicant answered in the negative notwithstanding
the disciplinary action taken against him in 2002. He was
subjected
to a disciplinary enquiry and dismissed for gross dishonesty in
September 2005 on account of his answers to these questions.
At the
enquiry he claims he had been advised to plead guilty to the charge
by his union representative because it would result
in more lenient
treatment. He then appealed to the Gauteng MEC.
6.
The MEC upheld the appeal on 10
th
July 2006 on the basis
that he had pleaded guilty. She then replaced sanction of the
chairperson of the enquiry with a final written
warning and demotion
from a post level 3 educator to post level 2. The demotion resulted
in a reduction in his salary in line with
his lower post level. The
applicant then lodged a grievance against the new sanction, claiming
now that he did not understand the
questions posed in the application
form. The MEC dismissed the grievance finding his new defence at odds
with his previous guilty
plea.
7.
Next, the applicant inititated an unfair labour practice claim
against the sanction imposed by the MEC in terms of section 186(2)(b)
of the Labour Relations Act 66 of 1995 (‘the LRA’), which
deals with disputes over the fairness of disciplinary action
short of
dismissal. The matter was heard by the second respondent who produced
a detailed and carefully argued award of some 22
pages. The
parties did not give oral evidence but each submitted written stated
cases and arguments. For the most part
the facts were common
cause.
8.
For the purposes of this review only a few salient features of the
award need to be mentioned. The arbitrator believed he had
to
consider if the sanction of dismissal imposed by the chairperson of
the internal inquiry was fair. He then analysed the sanction
imposed
on appeal by the MEC, which replaced the original sanction.
After considering the test for a fair dismissal in terms
of the
criteria set out for substantive fairness in dismissals for
misconduct in Schedule 8 of the LRA, the Code of Good Practice
for
Dismissals, he found that the chairperson’s decision to dismiss
the applicant was fair. However, he found that demotion
as part of
the sanction imposed by the MEC was in breach of the requirement to
obtain an employee’s consent before a demotion
could be imposed
as an alternative penalty to dismissal and that the imposition of
this sanction amounted to an unfair labour practice
9.
Under item 9(5) of the Employment of Educators Act (‘the EEA’),
the powers of the MEC or Minister on appeal are to
uphold the appeal,
amend the sanction or dismiss the appeal. The power to impose a
sanction of demotion in terms of the clause
8(2) of Schedule 2 of the
EEA is subject to the requirement that it can only be imposed as an
alternative sanction to dismissal
and the educator must consent to
it. Therefore, if the employee does not consent to the
alternative sanction of demotion,
the normal consequence will be that
the sanction of dismissal will then apply.
10.
Given that he found that the sanction of demotion to have been
procedurally unfair, the arbitrator found that it would
be the
appropriate and logical course of action to revert back to the stage
before such action occurred by reinstating the sanction
which applied
prior to the MEC’s decision, namely the sanction of dismissal,
which he had considered and found to be fair.
Consequently, he found
the sanction of demotion imposed on the Applicant to constitute an
unfair labour practice, which was unenforceable
and therefore the
sanction of dismissal remained valid and enforceable.
Grounds
of Review
11.
I only address two of the grounds of review raised by the applicant,
as the first provides sufficient ground for setting
aside the award,
and the second is relevant to the appropriate relief.
12.
Firstly, the applicant takes issue with the arbitrator making a
finding on the fairness of the original dismissal
on the basis that
he had no jurisdiction to pronounce on the fairness of a dismissal
decision when deciding an unfair labour practice
dispute under
section 186(2)(b) of the LRA which is confined to challenging
disciplinary action short of dismissal only. This jurisdictional
attack, though sound, is somewhat disingenuous given that the
applicant himself specifically singled out this sanction as one of
the objects of his complaint before the arbitrator.
Nevertheless, it is clear that an arbitrator acting under s186(2)(b)
cannot pronounce upon the fairness of dismissal as a sanction, and it
was not open to the arbitrator to determine that, even if
he believed
that it was a consequence of overturning the MEC’s decision
that the decision of the disciplinary enquiry chairperson
still
stood. His jurisdiction was confined to considering the fairness of
the MEC’s alternative sanction and having decided
it could not
stand, should have considered how to best to remedy the fact that a
decision on appeal had not been properly taken,
resulting in
unfairness to the applicant. On this jurisdictional basis alone, the
arbitrator’s award stands to be set aside
under section
145(2)(a)(iii) of the LRA.
13.
The applicant also criticizes the arbitrator for failing to consider
the final written warning which was part of the sanction
imposed by
the MEC together with the demotion. It would seem that having
decided that one component of the MEC’s sanction
was defective,
the arbitrator did not consider it necessary to consider the
remaining part. The arbitrator cannot really be criticized
for not
embarking on a further enquiry which could not alter the fact that
the MEC’s sanction could not stand. The
applicant appears
to be of the view that the arbitrator ought then to have considered
whether the remainder of the MEC’s
sanction, being the final
warning, could stand. With respect, this would have been an
exercise which was not only futile
but also artificial. The MEC was
considering whether a sanction less severe than dismissal should
apply and decided on a two pronged
sanction comprising a demotion and
a final warning: it makes no sense to assess the fairness of
the balance of the sanction
in isolation when the final warning was
part and parcel of one sanction package.
Appropriate
remedy
14.
Section 193(4) of the LRA sets out the remedial powers of an
arbitrator when determining an unfair labour practice dispute,
as
follows:
“
An arbitrator
appointed in terms of this Act may determine any unfair labour
practice dispute referred to the arbitrator,
on terms that
the arbitrator deems reasonable
,
which may
include
ordering reinstatement, re-employment or
compensation.
” (emphasis added).
15.
In
Booysen v SAPS & another
[2008]
[2008] ZALC 87
;
10 BLLR
928
(LC)
at 933,
[21]
, Cheadle AJ noted that unlike the list of
remedies for an unfair dismissal which is closed the list of remedies
for unfair labour
practices is not. It seems reasonable to
infer that one reason for the divergent approach to the remedies for
dismissals
and unfair labour practices is that the legislature
recognized that the variety of conduct which might constitute unfair
labour
practices in the context of parties who are still in an
employment relationship might sometimes require remedies other than
the
three specifically mentioned.
16.
In this instance, it is possible for the court to consider what
sanction the MEC might reasonably have imposed when considering
the
applicant’s appeal against the sanction of dismissal. However,
given that the original decision was flawed mainly because
of a
misunderstanding of the pre-requisites that must be met before
demotion could be imposed as part of an alternative sanction,
it
seems reasonable that the office bearer who is entrusted with
determining appeals, and who ought to be better acquainted
with the
standards which are normally applied by the third respondent in cases
involving this type of misconduct, should reconsider
the question of
an alternative sanction. Moreover, as the material facts of the
matter or not very complicated and are largely
common cause it ought
to be relatively easy to decide the appeal without much delay.
17.
Accordingly, in this instance, in substituting the decision of the
arbitrator, the court believes the appropriate remedy
in this
instance is to remit the determination of the appeal to the MEC.
Costs
18.
As it might happen that an employment relationship between the
parties could be resumed, it would not be suitable to make
an order
as to costs in this instance.
Order
19.
In the light of the findings above, an order is made in these terms:
19.1. The arbitration
award of the second respondent is reviewed and set aside, save for
his finding that the imposition by the
third respondent of a sanction
entailing demotion on the applicant as part of an alternative
sanction to dismissal, without obtaining
his consent to such
demotion, constituted an unfair labour practice.
19.2. Within 30 calendar
days of service of this judgment on the third respondent, the Member
of the Executive Committee for the
third respondent must reconsider
and decide the applicant’s appeal against the sanction of
dismissal imposed by the chairperson
of the disciplinary enquiry.
19.3. No order is made as
to costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 4 November 2010
Date
of judgment: 5 November 2010
Appearances:
For
the applicant: Ms A Groenewald
No
appearance for the third respondent.