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[2010] ZALCJHB 15
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Department of Education - North West v Van Eck and Others (JR1524/09) [2010] ZALCJHB 15 (17 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
JOHANNESBURG
CASE
NO: JR1524/09
In
the matter between:
DEPARTMENT
OF EDUCATION - NORTH
WEST Applicant
and
BERNARD VAN ECK
First
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL Second
Respondent
AM
KARODIA
Third Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an opposed application to review and set aside an arbitration
award issued
by the first respondent (the arbitrator) under case
number PSGA 394/07/08 after the arbitrator had found that the
most likely
cause of the termination of the third respondent’s
employment was for reasons related to the operational requirements of
the applicant and ordered that he be paid severance pay.
The background
facts
2.
The third respondent was employed by the applicant, the Northwest
Department
of Education as its head of department and was a member of
the Senior Management Services (SMS). On or about 22 August
2005,
he was suspended from duty as a precautionary measure in terms
of Chapter 7, paragraphs 2.7 of the SMS handbook. His
suspension
was a result of allegations of serious financial
misconduct and mismanagement of property that had been levelled
against him.
He was offered a number of opportunities to
present his case at a disciplinary hearing, but for various reasons,
including ill-health,
the hearing did not proceed.
3.
On or about 23 January 2007, the MEC of the Northwest Department of
Education
invited him to make representations against his possible
discharge in terms of section 17(2)(c) of the Public Service Act
(PSA).
The MEC recorded in the letter that the third respondent
had been called to a disciplinary hearing to answer allegations of
serious
misconduct including charges relating to:
3.1
improper delegation of authority to the former chief financial
officer;
3.2
financial mismanagement as envisaged in the
Public Finance Management
Act, 1999
;
3.3
fruitless and wasteful expenditure; and
3.4
irregular appointments of service providers and a failure to protect
the finance of the
applicant and to act in its best interests.
4.
The letter also recorded the history of the matter, including his
apparent unwillingness
to submit himself to medical examination by
the applicant’s doctors and the unavailability of his
representatives on the
dates the hearing was set down. The
letter stated that his conduct had significantly impaired the
relationship of trust between
the MEC and him. The allegations he
faced were serious and he had been unreasonable in the manner in
which he responded to the
request to attend a disciplinary hearing.
His conduct had demonstrated that he held the office of the MEC in
contempt.
The public interest was hampered by the lack of
finality in relation to the position of head of the applicant.
He was invited
to make representations about whether the charges
against him were correct; whether it was in the interest of the
public service
for him to be discharged in terms of
section 17(2)(c)
of the PSA; and any other matter that the MEC should take into
account in making his decision on his continued employment with
the
applicant.
5.
He made representations on 25 January and 1 February 2007. He also
made oral
representations to the MEC on 8 February 2007. In the
letter of 25 January 2007, he denied that he had refused to attend a
medical examination. He proposed that he be allowed early
retirement due to health reasons. His application for early
retirement was not approved.
6.
The MEC discharged him on or about 16 March 2007 in terms of
section
17(2)(c)
of the PSA. The MEC gave the following reasons:
6.1
that, as a consequence of the investigator’s findings, the MEC
convened a disciplinary
hearing to afford him an opportunity to
explain his conduct; which hearing he failed to attend for spurious
reasons;
6.2
he failed to attend an appointment with the applicant’s
doctors;
6.3
he was uncooperative during the relevant period;
6.4
his conduct was harmful to the interest of the public service as well
as those of the public
in general; and
6.5
there had been an irretrievable breakdown of trust between the
applicant and him.
7.
On or about 19 March 2007, the MEC advised him in writing, that his
discharge
was based on
section 17(2)(c)
of the PSA.
8.
On or about 2 May 2007, the third respondent referred a dispute to
the bargaining
council, for conciliation and thereafter to
arbitration claiming that his discharge was for reasons based
on the applicant’s
operational requirements, and that, as a
result he should be paid severance pay by reason of the provisions of
section 41(2)
of the Basic Conditions Act (BCEA). He did not
challenge the fairness of his dismissal.
The arbitration
proceedings
9.
The arbitration hearing took place on 10 December 2008. The
issue in dispute
at the arbitration hearing was whether the third
respondent had been discharged as a result of the applicant’s
operational
requirements and was, as a result entitled to severance
pay.
10.
The applicant’s submitted that the MEC had requested the third
respondent on 23 January
2007 to make representations against his
possible discharge in terms of
section 17(2)(c)
of the PSA. The
MEC referred to some of the allegations of misconduct brought against
him, and that he had by then not made
himself available for a second
medical opinion and his representative’s unavailability at the
dates upon the hearing was
set to continue. He was then invited
to make representations whether the allegations raised against him
were correct; whether
it was in the interest of the public service
for his service to be terminated in terms of
section 17(2)(c)
of the
PSA; and any other matter that he wished the MEC to take into
consideration about his continued employment. He had
denied in
his representations that he had refused to attend a medical
examination. He also then proposed that he be allowed
to go on
early retirement due to reasons related to ill-health. This
application for early retirement was not approved and after
having
considered his representations, his services were terminated on 16
March 2007. His services were not terminated for
reasons
related to the applicant’s operational reasons, but for the
specific reasons mentioned in the letter dated 16 March
2007.
The question whether these reasons were fair or not was irrelevant,
but that the only question to be asked was whether
those reasons are
for reasons related to the employer’s operational requirements
as defined in
section 41
of the BCEA. The reasons advanced
could not be regarded as requirements based on economic,
technological, structural or similar
needs of the applicant in the
sense contemplated in
section 41
of the BCEA. The letter makes
it abundantly clear that the actual and true reason for the
termination was the irretrievable
breakdown of the relationship of
trust between the employer and the employee and that this had
justified the termination of his
services in the interest of the
public service. The third respondent was not dismissed for
reasons related to the third respondent’s
operational
requirements and that, for this reason he was not entitled to the
payment of severance pay in terms of
section 41
of the BCEA.
11.
The third respondent’s submitted that the crux of the reason
why the MEC had requested
him to make representations about why his
services should not be terminated in terms of
section 17(2)(c)
of the
PSA, was that the disciplinary process took too long to finalise;
that it was allegedly not in the public interest or the
public
service, that there should be lack of finality about his employment
status; and that he was on fully paid suspension for
a period in
excess of twelve months. Despite the various representations
made as well as the application for early retirement
due to his
ill-health, he was summarily dismissed on 16 March 2007. The
reasons for this decision were that he had cited
spurious grounds for
failing to attend the disciplinary enquiry over a prolonged period of
time; that he had failed to make himself
available for a second
medical opinion regarding his ailment; that he had been uncooperative
in the process; that his conduct was
harmful to the interests of the
public service and that of the general public; and that, as a result,
there has been an irretrievable
breakdown in the trust relationship.
His application for early retirement for ill-health was never
considered and that dismissals
for reason based on operational
requirements had indeed been performed in terms of
section 17(2)(c)
of the PSA. The most likely cause for his termination was due
to the applicant’s operational requirements and that
he should,
as such, be entitled to the payment of severance pay.
The arbitration
award
12.
The arbitrator has set out the parties submissions in his award.
It is not necessary
to repeat this. He then proceeded to
deal with the issue raised by the third respondent. He said
that both parties
were
ad idem
that an inquiry should first be
made into the true or actual reason for the third respondent’s
termination and that this
should not be determined by the label
attached there and he was going to deal with the applicable
legislation.
13.
He said that section 213 of the Labour Relations Act 66 of 1995 (the
LRA) defines ‘operational
requirements” to mean the
requirements based on the economic, technological, structural or
similar needs of an employer.
Section 17(2) of the PSA before
its amendment, read as follows:
“
Every
officer, other than a member of the services or an educator or a
member of the Agency or the Service, may be discharged from
the
public service -
(a)
on account of continued ill health;
(b)
owing to the abolition of his or her post or any reduction in or
reorganization or
readjustment of departments or offices;
(c)
if, for reasons other than his or her own unfitness or incapacity,
his or her discharge
will promote efficiency or economy in the
department or office in which he or she is employed, or will
otherwise be in the interest
of the public service;
(d)
on account of unfitness for his or her duties or incapacity to carry
them out efficiently;
(e)
on account of misconduct;
(f)
to (i).................”
14.
The arbitrator then dealt with the MEC’s invitation to the
third respondent to submit
representations why his services should
not be terminated in terms of section 17(2)(c) of the PSA.
After setting out the
history of the matter and referring to the
third respondent’s alleged frustration of the disciplinary
process and to undergo
a second medical examination, the MEC
proceeded in paragraph 8 of his letter to state that it was neither
in the public interest
nor the interest of the public service that
there should be lack of finality about his employment status.
The applicant stated
in paragraph 9 of the letter that:
“
your
conduct which led to the institution of charges of misconduct against
you and subsequent to the charges being laid against
you has
significantly impaired the relationship of trust between you and
myself. I have in considering this matter taken
into account
the following factors:
9.1
The allegations which you currently face are serious and involve
allegations of dishonest
conduct. It is, however, imperative
that you are afforded a fair chance to make representations in your
defense;
9.2
You have been unreasonable in the manner in which you have responded
to the request to attend
a disciplinary enquiry;
9.3
Your conduct subsequent to the institution of the charges also
demonstrates that you
hild the office of the MEC in contempt.
You have for instance informed the Acting Head of Department that you
did not believe
that his acting appointment would last; and
9.4
The public interest is harmed by lack of finality in relation to the
position of the Head
of Department.”
15.
The third respondent was in the same letter requested to make
representation about whether
or not the charges served on him in
October 2005 were correct; whether or not it was in the interests of
the public service that
he should be discharged from his position in
terms of section 17(2)(c) of the PSA; any other matter that the MEC
should take into
account in making his final decision about his
continued employment by the applicant and whether or not there was
any manner in
which the current dispute should be put to finality.
16.
The arbitrator said that it was obvious from a reading of the letter
that the MEC was wholly
upset about the fact that the said
disciplinary hearing had taken so long to be finalised and also the
third respondent’s
perceived conduct during the proceedings.
It was also clear that the so-called harm to the trust relationship
that the MEC
had referred to, was solely as a result of the third
respondent’s alleged acts of misconduct and his perceived
conduct during
the applicant’s attempts at bringing the matter
to conclusion. The MEC believed that the public interest was being
harmed
by the lack of finality in the matter, clearly indicating that
the issue pertained solely to the disciplinary hearing and the
frustrations
the third respondent had met in attempting to finalise
the matter. The MEC had requested him to make representations
on the
correctness of the charges and the public interest clearly
indicated that this matter solely pertained to the institution of
disciplinary
charges against him. It was further also clear
that the only reason why the applicant had sought for him to undergo
a second
medical examination, was solely to determine whether the
delay in finalising the disciplinary hearing was justified.
17.
The arbitrator said that in determining the true or actual reason for
the termination of
the third respondent’s services, the third
respondent was correct in his assessment that the only question that
should be
asked, is whether the provisions of section 17(2)(c) of the
PSA would have been invoked, had the disciplinary hearing proceed
been
finalised prior to 23 January 2007 when the said letter was
served on him. If the answer to this question was yes then the
third respondent could not claim to have been dismissed for reasons
related to the applicant’s operational requirements.
Conversely, if the answer was no, then it must follow that his
services were terminated as a result of the applicant’s
operational
requirements. The arbitrator said that this was so,
as he had been on paid suspension for a period of approximately 17
months
and someone else had been paid an acting allowance to replace
him at work.
18.
The applicant, in referring to the dictum contained in
Shoprite
Checkers (Pty) Ltd v CCMA &
Others
[2008] BLLR 635
(LAC) submitted that ultimately any decision to
dismiss an employee involved the employer’s ‘operational
requirements’
in the broadest sense. The commissioner
said that although he agreed with the passage, the applicant had
missed the point
altogether. The third respondent was not
claiming to have been retrenched in the ‘broad sense’
merely because
his services were terminated, but he was basing his
claim on a specific section in our law. As such, the
applicant’s
argument in this respect was wholly unconvincing.
19.
Furthermore, and in referring to the third respondent’s letter
of termination, the
applicant submitted that the actual reasons for
the termination was contained in paragraph 3 thereof which reads as
follows;
“
The
reasons for my decision are contained in my letter dated 23 January
2007. In summary, the reasons are the following.
3.1
As a consequence of the findings of the investigators, I convened a
disciplinary enquiry
against you to afford you the opportunity to
explain your conduct, which leads to the finding made by the
investigators.
You failed to attend such an enquiry citing
spurious grounds. I have already set out the history of this
matter in my letter
of 23 January 2007. I do not intend
repeating same herein.
3.2
Having stated the above, I, however, wish to remind you of the fact
that upon you informing
me of your ailment, I requested you to avail
yourself to doctors appointed by the Department for a normal,
in such circumstances,
second opinion. I received from you, as
a response, various explanations, objections and conditions
culminating in you not
availing yourself to the said doctors, to
date.
3.3
Your interaction with me during the period under review bars me from
the use of the word
cooperative.
3.4
Your conduct is harmful to the interests of the public service and
indeed those of the public
in general. The fact that you have
been on paid suspension for a substantial period of time and are
failing to attend the
enquiry is also harmful to the interests of the
service and those of the public in general.
3.5
For the reasons cited above and in my letter of 23 January 2007, I
have lost trust in you.
I do not believe that it is in the
interests of the public service to continue employing you when the
relationship of trust has
broken down irretrievably.”
20.
The arbitrator said that with all the reasons cited, including those
of the public interest
and the interest of the public service, as
well as the reasons for the breakdown in the trust relationship, only
related to the
institution of the disciplinary action against the
third respondent and his alleged conduct throughout the process.
The applicant
could not as such now claim that the actual true reason
for the termination of the third respondent’s services was due
to
a breakdown in the trust relationship between the third respondent
and the applicant. The so-called loss of trust was based
upon
the institution of disciplinary charges against the third respondent
and the applicant’s view that he was uncooperative
in the
finalisation of the matter. The commissioner said that it was
important to note further that the MEC had not terminated
his
services as a result of the alleged misconduct or his alleged medical
incapacity. The public interest, yet again, was
weighted
directly against his alleged acts of misconduct and his conduct
throughout the process.
21.
The commissioner said that all in all, and taking into account all
the relevant factors,
he found that the termination of the third
respondent’s services were directly as a result of the fact
that disciplinary
charges had been instituted against him and that
such disciplinary hearing did not come to a speedy finality.
Had the disciplinary
process been concluded before 23 January 2007,
the applicant would have had no need to institute the process of
requesting the
third respondent to make representations about his
possible dismissal in terms of section 17(2)(c) of the PSA. It
was noteworthy
that the MEC in his letter informing the third
respondent of the termination of his service, made specific reference
to the fact
that he was on paid suspension for a considerable period
of time as well as the financial repercussions thereof, must then
surely
had played on the MEC’s mind.
22.
The arbitrator said that on a purposeful reading of section 17(2)(c)
of the PSA, it was
clear that the MEC must have had in the forefront
of his mind the promotion of ‘efficiency or economy of the
department’,
as he had been on paid suspension and his
disciplinary hearing had still not been finalised nearly some 19
months later.
Similarly, the MEC, who holds public office, was
expected to act in the best interest of the public service and the
general public
at large. As such, he would have been criticised
for the quite costly delay in the finalisation of the disciplinary
hearing
and therefore it would, quite naturally, have been in the
public interest, as well as in the interest of the public service, to
bring this matter to finality by one way or the other. He found
that the most likely cause of the termination of his employnent
was
for reasons related to the operational requirements of the
applicant. He found that the third respondent was entitled
to
the payment of severance pay in terms of section 41(2) of the BCEA in
the amount of R486 144.87.
The grounds of
review
23.
The applicant brought the review application on the grounds that the
award be set aside
because the decision was not one that a reasonable
decision-maker could have reached on the evidence before the
arbitrator. He
exceeded his powers in the sense contemplated in
section 145(2)(a) of the LRA. The award suffers from numerous
material misdirection
and defects in relation to the assessment of
the evidence and interpretation and application of the law. The
various factual
conclusions reached are irrational and unreasonable
on the basis of the evidence before the arbitrator or the reasons
given for
them. He acted unreasonably, committed a gross
irregularity and exceeded his powers.
Analysis of the
evidence and arguments raised.
24.
The parties concluded a pre-arbitration minute and reached an
agreement on the agreed facts.
It was common cause that the
third respondent had 27 years continuous service in the public
service at the date of termination
of his employment, i.e. on 16
March 2007. He was employed as the superintendent general (head
of department) at the date
of the termination of his service.
His services were terminated by the MEC in terms of section 17(2)(c)
of the PSA.
His remuneration as contemplated in section 35 of
the BCEA was R936 279.00 per annum. He was suspended from duty
with effect
from 22 August 2005 in terms of clause 18 of chapter 8 of
the SMS handbook. His disciplinary hearing was scheduled for 2
November 2005, but did not proceed after he successfully applied for
the recusal of the chairperson of the hearing. A new
chairperson was appointed for the disciplinary proceedings which had
subsequently been convened to take place on 28 November 2005
but was
postponed due to the unavailability of documents requested by the
third respondent. During February 2006 he was diagnosed
with
cancer of the lymphatic system (grade 2 non-Hodgkin’s lymphoma)
and started undergoing chemotherapy. The disciplinary
that was
scheduled for 3 April 2006 was postponed
sine
die
. The applicant did not
proceed with the disciplinary hearing, either in the absence of the
third respondent or otherwise.
25.
On or about 23 January 2007, an undated request was delivered to the
third respondent in
which he was invited to make representations
about why his services ought not to be terminated in terms of section
17(2)(c) of
the PSA. A written response to the above stated
notification was submitted on 25 January 2007 and 1 February 2007
respectively
and on 8 February 2007 orally by the third respondent
acting personally. He submitted on 15 February 2007 an
application
for early retirement due to ill health with effect from
30 June 2007 with the applicant’s department based on the above
stated
illness contracted by him. The applicant through the
acting head of department on 20 February 2007 acknowledged receipt of
the application and indicated that a response would be given to his
lawyers in due course. On 16 March 2007 the MEC in writing
notified him that he was terminating his services with immediate
effect in terms of section 17(2)(c) of the PSA. Mr H M Mwelu,
at the time a chief director, was appointed as acting head of
department with effect from 22 August 2005 by the MEC and received
an
acting allowance as acting head of department. Mr A B
Seakamela, the deputy director general in the department, was not
appointed as acting head of department during the suspension of the
third respondent. Mweli was subsequently appointed permanently
as superintendent general (head of department of the applicant).
26.
Section 17(2) of the PSA recognises the termination of an employee’s
services for
various reasons. These would include misconduct,
continued ill health, abolition of his post or readjustment,
incapacity
or unfitness for his duties or his discharge would promote
efficiency or economy in the department. It is apparent that
the
old section 17(2) of the PSA unlike the amended section made no
reference to the operational requirements of the employer.
27.
The third respondent’s services were terminated in terms of
section 17(2)(c) of the
PSA. This is where his discharge would
promote efficiency or economy in the department or office in which he
is employed
or will otherwise be in the interest of the public
service. Section 213 of the LRA contains a similar definition
of ‘operational
requirements’ as that contained in
section 41(1) of the BCEA which means the requirements based on the
economic, technological,
structural or similar needs of an employer.
The Public Service Regulation G.41 in Part (vii) of Chapter 1 of the
Public Service
Regulations, 2001 provide as follows:
“
G.4
Operational Requirements
G.4.1 An
executing authority may discharge employees for operational reasons
of the discharge complies with -
(a)
Sections 17(2)(b)and (cc) of the Act and sections 189 and 190 of the
Labour Relations
act; and
(b)
Any applicable collective agreement that determines benefits for
employees to be so
discharged.”
A
department is not permitted to have an employee act in another post
for an uninterrupted period exceeding 12 months.
28.
The arbitrator was required to identify the dominant reason for the
dismissal. The
arbitrator followed the approach prescribed in
SACWU and Others v Afrox Lt
(1999)
10 BLLR 1005
LAC where it was held that the enquiry into the reason
for the dismissal is an objective one, where the employer’s
motive
for the dismissal would merely be one of a number of factors
to be considered. The arbitrator had regard to the common cause
facts and documents presented to him in arriving at his finding.
29.
It is apparent that the third the respondent was employed as the head
of department when
he was suspended on full pay pending the outcome
of the disciplinary hearing. This went on for about 17 months.
An
acting head of department was appointed and he was paid an acting
allowance. The applicant could not proceed with the
disciplinary
hearing and it was not in the public interest for this
to continue. It is clear that the third respondent’s
services
were not terminated for ill health or incapacity but to
promote efficiency or economy and it was in the public interest to do
so.
30.
In order to decide whether an award was reviewable the question to be
asked is whether the
decision reached by the arbitrator is one that a
reasonable decision-maker could not reach.
The
applicant has failed to establish that the decision of the arbitrator
falls outside the bounds of reasonableness as contemplated
by the
Constitution. None of the grounds for review as contained in
section 145 of the LRA have been proven by the applicant.
Given
the common cause facts and documents placed before the arbitrator and
his application of the relevant decision of the Labour
Appeal Court
and statutory enactments to the common cause facts, it is clear that
the award is one that a reasonable decision-maker
could have reached
in the circumstance. The award is well reasoned and it is clear
that the arbitrator in finding that the
most likely cause of the
determination of the third respondent’s employment was for
reasons related to the operational requirements
of the respondent as
contemplated in section 41 of the BCEA. He considered the
reasons stated by the MEC for the third respondent’s
dismissal
and duly interpreted the provisions of the BCEA, the PSA and the LRA
and case law to which the parties had referred him
to. He
adopted the test and methodology as set out in
SACWU
& Others
in order to determine both
factual and legal causation. He had asked whether or not the
non-finalisation of the disciplinary
proceedings constituted a sine
qua non for the dismissal and thereafter determined the dominant or
proximate or most likely cause
of the dismissal.
31.
It was a reasonable conclusion drawn by the arbitrator based on the
applicant’s disavowance
of any reliance on misconduct or
incapacity as a reason for the dismissal and perceived operational
need to finalise the employment
status of the third respondent
urgently that it finally had resorted to a no fault dismissal as
contemplated by section 17(2)(c)
of the PSA read with section 41 of
the PSA.
32.
The application stands to be dismissed.
33.
There is no reason why costs should not follow the result.
34.
In the circumstances I make the following order:
34.1
The application is dismissed with costs.
___________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: L
KUTUMELA OF BOWMAN GILFILLAN
FOR THIRD
RESPONDENT
:
M HITGE
INSTRUCTED BY NIENABER & WISSING
DATE
OF HEARING
: 14
SEPTEMBER 2010
DATE OF
JUDGMENT
: 17
DECEMBER 2010