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[2010] ZALCD 7
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Uthukela Water (Pty) Ltd v South African Local Government Bargaining Council and Others (D890/08) [2010] ZALCD 7 (26 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: D890/08
In
the matter between
UTHUKELA
WATER (PTY)
LTD Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL 1st
Respondent
NONHLHANHLA
DUBAZANE 2nd
Respondent
WILBERFORCE
M.
GWALA 3rd
Respondent
JUDGMENT
LAGRANGE,
J
1.
This is a review application. The employee, the third respondent, was
charged with four counts of misconduct. Only three of the
charges are
relevant for present purposes .
2.
The relevant charges read as follows:
“
1.It is alleged
that you have been absent from work from the 18th of June 2007 till
the 22nd of June 2007 being five days without
good reason and without
complying with company policy to apply for leave a weekend in advance
, should this be the case.
You also fail to explain your
absence to the manager on your return to work or attempt to fill out
in the form. A week later,
you also displayed an attitude of
arrogance towards the foreman [ns]. When you realize that you
were marked absence on the
timesheet . This is a violation of
rules, 1.2.6 and 1.2.5 in respect of you not filling out a leave form
of the code of conduct
as agreed at the bargaining Council.
2. It is further alleged
that should dissipate rule for instruction by refusing to remove your
car which was parked in the manager's
parking which contributed to
the manager of being belittled in front of all the staff present at
the time. The manager had
to find an alternate parking bay.
After 20 minutes or so you mutual vehicle after the manager
threatened to call the SAPS
to remove your vehicle. Your
actions constitutes a violation of clause 1.2 .4 of the code of
conduct.
3. It is alleged
that on the 12th of July, at approximately 4:03 p.m.. You find
the manager, Mr. Chetty on his
cell phone from the office and
verbally threatened him, saying twice that he is in "big shit."
After you inquired
from him as to were the charges came from.
In doing so you'll actions is seen as a violation of rules 1.2.9 of
the code of
conduct.
All of these misconducts
constitute gross misconduct and gross insubordination.”
3.
It was common cause that the employee was in possession of a final
written warning for poor work performance on 19th and 20th
of June
2006. That warning related to him using the applicant's vehicle
for private purposes, thereby inconveniencing the
web team, which he
was tranporting. It is also common cause that he refused to
sign the notice to attend the disciplinary
inquiry, which was served
on him on 12 June 2007. There was no disagreement that he was
absent from work during the period
18 June 2007 to 26 in June 2007
and had not applied for leave in advance. He also did not
complete a leave form at any stage,
even after his return to work.
Arbitrator's
analysis.
Charge
one.
4.
The arbitrator was satisfied that the employee had not complied with
the policy as far as applying for leave in advance is concerned.
The employee allegedly needed to take leave to attend to his brother
who was mentally ill and claimed that his immediate supervisor
knew
about his condition. He claimed to have advised his foreman, Mr
Mncwango on the 17th June 2007 that he would not be at work
the
following day, because he had to attend to his brother, on account of
the seriousness of his condition at that time.
According to the
arbitrator's finding the immediate supervisor could not remember if
the applicant had told him about his brother,
but agrees that the
employee told him he would not come to work and would complete a
leave form. The arbitrator's view is
that the employer had
failed to discharge the onus of proof on this element of the first
charge, because it had failed to establish
that the employee had no
good reason for being absent. Consequently, employee had not
contravened clause 1.2 .7 of the Code.
The arbitrator was
clearly off the view that it was for the employer to prove that the
employee's brother was not as skilled as
he claimed and that it was
not for the employee to justify his absence.
5.
The arbitrator also dismissed the claim that the employee had showed
arrogance towards his foreman Sibiya when he realized that
he had
been marked absence on the timesheet. If he accepted the
employee's evidence that the supervisor had not told him
he had been
marked absence whereas he had already been at work for two weeks
after that absence and would have had an opportunity
to sort out the
issue if he'd been told about. The arbitrator accepted that
this evidence was not disputed by the employer
and his supervisor
could not tell whether or not he was happy about the entry on the
timesheet there was no indication that the
employee was displaying
arrogance, and therefore could not be found guilty in terms of terms
of clause 1.2.5 of the code.
Charge
two.
6.
On the second charge, the arbitrator found that there were two
conflicting versions, which made the probabilities of the matter
even
and accordingly was compelled to find in favor of the employee on
that charge as well. When analyzing the evidence the
arbitrator
appears to have focused principally on two issues: firstly, the
arbitrator accepted that the parking bay in question
was not
specifically designated for the manager until after the incident, and
secondly, there were other bays available for both
of them to park
in. She also took account of the employee's denial that he knew
that the bay was for the exclusive use of
Chetty. Consequently,
the arbitrator found that see employer had failed to prove that the
employee had contravened clause
1.2.4 the code.
Charge
three.
7.
The arbitrator concluded that the most probable inference she could
draw in all the circumstances was that the employee had not
threatened his manager on the phone on the 13th of July 2007.
In arriving at this conclusion, the arbitrator appears to have
been
influenced by the following factors:
7.1. The
charge sheet containing this charge was issued on 16 July 2007 which
is the day the applicant was suspended
and the reason given for the
suspension was to allow the municipality to conduct its investigation
into the alleged threats director
at to Chetty. The arbitrator
found at anomalous that the charge should proceed the investigation
and further observes that
no mention is made in the investigation
report to the fourth charge.
7.2. The
arbitrator also dismissed the value of circumstantial evidence
contained in a statement made by Sibiya, Gwala’s
supervisor,
and Van Schalkwyk, another foreman. They testify that the
employee had told them that he would show Chetty “who
he is",
and that they had brought that statement to Chetty’s attention
as they thought the statement was a threat.
When Sibiya
subsequently testified, he said he did not know what the employee
meant when he said those words. The arbitrator
observes that
this contradicts Sibiay’s own previous written statement.
It must be noted however, that the transcript
of the proceedings does
not record such a retraction by Sibiya, who confirmed that he and Van
Schalkwyk perceived Gwala’s
statement to be a threat.
7.3. The
arbitrator also discounted Chetty's evidence that the employee had
phoned him after receiving the charges and
asked him where the
charges were coming from, thereafter threatening him. It
appears the arbitrator was skeptical of this
evidence, mainly because
he understood the charges had been explained to the employee and
therefore there would be no reason for
the employee to phone Chetty.
7.4. The
arbitrator also found that Chetty's evidence that he received the
threat on 12 July 2000 was inconsistent with
the finding of the
chairperson of the disciplinary inquiry, who found that the threat
was made on the 13 July 2008.
Finding
on procedural fairness.
8.
The arbitrator appears to have found that the employee’s
dismissal was procedurally unfair, because of "irregularities"
in the way the disciplinary process was conducted, which led her to
conclude that the procedure was flawed. She explains
the reason
for his conclusion as follows: "…
to name few
irregularities, course 6.1 of the collective agreement: disciplinary
procedures would not instituted by the municipal
manager or its
authorized representative, it was Chetty, who constructed the charge
sheet. It was the HR manager, who had
authority to do that
according to Cele; courts 13.2 was also contravened in that the
applicant was not given notice of intention
to suspend him and does
not ordered an opportunity to make representation as to why he should
not be suspended; it is clear why
charge number 4 was never explained
to the applicant as Chetty was not present when the applicant was
given the second notice of
misconduct and there is no evidence
suggesting that anyone else explained the charge to him.
"
(
sic
)
Sanction
9.
The arbitrator took the following factors into account in deciding
whether or not dismissal was
an appropriate sanction:
9.1. The
applicant’s service of not less than three years.
9.2. The fact
that the applicant failed to request permission in advance for his
leave of absence.
9.3. The
status of a final written warning ostensibly issued to the applicant
on the 26th of January 2007. The
warning was supposedly issued
to Gwala for his alleged absence from work for three days without
permission or authority from his
superior. According to the warning
he failed to report his whereabouts and did not submit a medical
certificate to support his
absence. The arbitrator did not accept
that the warning was valid. This was because of the warning appeared
to have been issued
at 15h00 whereas the incident was described as
taking place at 16h00 on the same day. The arbitrator was
concerned that the
timing of the two events indicated it that
something was wrong and further that they should have been sufficient
time given to
the applicant to prepare for the case, and his rights
should have been explained to him. The arbitrator found there
was no
evidence suggesting this was done. Accordingly, the most
probable inference was that the warning was not validly issued.
9.4. The
arbitrator considered whether or not the trust relationship had
broken down. He found that the misconduct was
not of a serious nature
taking into account the fact that employees could and did to sign the
forms on their return to work in
the case of emergencies. When
they took leave without requesting permission in advance. The
arbitrator also took account
of his finding that the applicant had
advised his immediate supervisor and his manager about his absence
and that there was a good
reason to justify his absence without
permission. She also found that it was essentially the
employer's fault that the employee
did not obtain a leave form on his
return to work and that in this instance. The employer was not
unaware of his whereabouts.
9.5. It is
not entirely clear that the arbitrator also appears to have been
influenced in finding the dismissal was
too harsh a sanction because
the applicant had deductions made from his salary for the days he was
absent.
Remedy
10.
Consequently, the arbitrator found the applicants dismissal was
procedurally and substantively unfair and ordered his
reinstatement
with back pay limited to 12 months.
Grounds
of review
11.
The broad grounds of review on which the applicant relies are
that the award of the second respondent was not one
a reasonable
arbitrator would have made, and that the arbitrator committed gross
misconduct or a gross irregularity by failing
to consider relevant
evidence before her. The applicant then provided details to
support its claims some of which raised
other distinct grounds of
review. These will be examined under the headings of the various
findings of the arbitrator which are
attacked.
The
arbitrator's finding that the employer had failed to establish that
the employee had been absent without good reason.
12.
In reaching this finding, which the arbitrator considered in
determining an appropriate sanction, the applicant claims
the
arbitrator neglected evidence by his supervisor that he did not tell
him on the 17 June 2007 that his brother was sick.
The
supervisor testified that the employee had only told him he would not
be coming back to work on the following day, but could
come in and
fill in a leave application form. The applicant complains also
that the arbitrator ignored Chetty's evidence
that when he
phoned the employee on the first day of his absence to advise him
that he hadn't followed the proper procedures for
taking leave,
he was told by Gwala that he would be coming to work the following
day, which he did not. This is one of several
instances where
critical testimony of the employer’s witnesses was not tested
at all under cross-examination, still less
was Gwala’s version
of the phone call from Chetty on 18 July 2007 put to Chetty. This
important flaw in the evidentiary foundation
of Gwala’s case
appeared to have escaped the arbitrator’s notice entirely.
13.
Further, the applicant says that the arbitrator had acted grossly
unreasonably in expecting it to validate whether or
not the
employee's brother was genuinely ill and aware. The employee
had been, other than requiring the employee to validate
the reason
for his absence. The applicant points out that there was
undisputed evidence that the employee had been aware
of his brother’s
illness long before he actually to leave. Also, he had failed
to produce a medical certificate confirming
his current allegedly
serious condition. In finding that the employee's supervisors
should have given him a leave application
form after he returned to
work, the applicant claims that this completely ignores the evidence
of the supervisor that he asked
the employee if he brought a medical
certificate to justify his absence. Moreover, the arbitrator
ignored the fact that the
supervisor was never asked if the employee
had gone to him to ask for a leave application form.
14.
There was no evidence that Sibiya had asked Gwala for a medical
certificate, but he did testify that: “
I reported to the
manager that I booked Gwala absent because there was no proof of
absence. I did not tell him that he was booked
absent because it was
upon him to come to me and explain his absence.
” (
sic
).
It was never put to Sibiya that it was his responsibility to seek out
Gwala and ask him to produce a certificate, whereas he
made it clear
he expected the latter to bring him something like a medical
certificate to explain his absence when he returned
to work. Sibiya
also confirmed being present when Chetty had phoned Gwala on the
first day of his absence, just after he had reported
Gwala’s
absence to Chetty because foreman had been without transport because
of Gwala’s absence.
15.
I agree that the arbitrator appears to have simply accepted Gwala’s
evidence that he had advised both Mncwango
and Chetty of his
brother’s condition. She further appears to accept that it is
not for the employee to explain his unauthorized
absence or
apply for leave on his return but the responsibility of the employer
to investigate and determine if he had good
reason to stay away from
work or not. In this respect the arbitrator appears to believe
that once it is established that
leave was not authorized, it does
not even mean that the employee bears even an evidentiary burden of
leading evidence to justify
that absence and why the failure to
follow the procedure was excusable.
16.
Moreover, apart from just preferring Gwala’s evidence, she
fails to consider the evidence of Mncwango and Chetty,
particularly
in the light of the important fact that their evidence on the issue
was not challenged and when Gwala did not allow
his version to be
tested with the employer’s witnesses. Apart from chiefly
ignoring the employer’s evidence,
she failed to consider
how the failure to put Gwala’s version to the employers’
witnesses, seriously diminished
the value of his testimony.
17.
Such a basic failure to consider the effect of not putting a
version to the applicant’s witnesses means the
arbitrator
failed to fulfill one of the basic functions of her role as an
arbitrator which had the effect of denying the employer
a fair
hearing, apart from rendering her finding on this important issue
fatally flawed. Unfortunately this defect in the
evaluation of
evidence is repeated in most of the instances below.
18.
Had she considered the evidence of Mncwango and Chetty on their
communications with Gwala on 17 and 18 July 2007, in the
light of
Gwala’s failure to test his version against their’s she
would not have been able to find that he did advise
them that the
reason for his absence and failure to apply for leave in advance was
owing to his brother’s illness.
She would also have found
that Gwala’s sole attempt to deal with his absence had been
when he notified Mncwango on 17 July
2007 he would not be coming in
the next, but after that he made no attempt to explain his extended
absence or his failure to return
on 19 July 2007, as he had advised
Chetty, to any figure in authority. Further, she would have
been hard pressed to accept
his story that he attempted in vain to
obtain leave forms from Sibiya on his return, but did not pursue the
matter when Sibiya
failed to provide them after a number of requests.
19.
In turn the most reasonable conclusion to draw is that Gwala did not
advance a reason for his absence before or after
his return to work
and accordingly had not demonstrated that his absence was justified
or that there was a good reason for him
failing to obtain permission
before he was absent or to have his absence condoned after his
return. A finding that he was
was guilty of being absent
without leave for a week would have been fair in the circumstances.
The
arbitrator's finding to the versions of the parties regarding the
instruction to remove the employee's vehicle was evenly balanced.
20.
The applicant complains that in arriving at this conclusion the
arbitrator accepted the employee's evidence that he was
unaware the
parking bay had been reserved for Chetty, but ignored the fact that
at the time he was instructed to remove the vehicle
he never
mentioned that to Chetty but simply refuse to remove his vehicle.
Moreover, the evidence that he simply refused
to remove his vehicle
was not disputed. Likewise, the fact that the incident took
place in the full view of other employees
waiting for roll call who
laughed at Chetty, when Gwala denied that the car was his, was not
disputed. Also uncontested
was Chetty’s testimony
that he approached one Khubeka, whom he described as the “Chairman
of the union” to speak
to the Gwala and that it was only when
he conveyed to Khubeka that he would ask the police to come and
remove the vehicle because
nobody knew whose it was that was when the
vehicle was removed. The applicant questions how the arbitrator could
say the evidence
was evenly balanced in the light of these facts.
21.
In regard to Chetty’s evidence, it should be noted that he
conceded he did not actually see Gwala removing the vehicle
on that
occasion, but he had seem Gwala previously on several occasions
driving the vehicle in question to work. He
also testified that
there were other empty bays available at the time of the incident.
22.
What is remarkable, it that not one question was directed by Gwala’s
representative to Chetty to contradict any
of his testimony on this
incident. Given that only Chetty and Gwala testified, the
arbitrator seemed to believe that in the
absence of independent
corroborative testimony, she simply had two witnesses’ versions
of the incident, which were of equal
evidentiary value. Again, she
failed to appreciate that Gwala’s version was never tested with
Chetty and he was not challenged
in any respect by Gwala’s
representative, even on his own version of the events leading to the
second charge.
23.
An interesting feature of Gwala’s own testimony is that even
though he claims he did not know the parking bay was
reserved for
Chetty, he did not dispute that his car was parked in the disputed
bay, and when he claims Chetty was allegedly shouting
“Whose
car is this?” he did not respond that it was his. He also
claimed, apparently for the first time, to have
apologized to Chetty
because Chetty was saying he had embarrassed him. Gwala also claimed
that Khubeka was present when he
did so.
24.
On the evidence presented the only reasonable conclusion on the
probabilities, given Chetty’s uncontested
evidence, which was
reinforced to some extent by Gwala’s implicit admission that
embarrassing him in front of other workers’
in the way Chetty
claimed he had would have been wrong, the arbitrator ought to
have found that he was guilty of this misconduct
too.
The
arbitrator's findings relating to the alleged threat made to Chetty.
25.
Firstly, the applicant, points out that the evidence of Van Schalkwyk
and Mr. S. was not directly relevant to the charge,
which concerned a
phone call made by the employee to Chetty after the notice of the
first inquiry had been served on the employee
Chetty had testified
that the employee had said he was in “big shit", which
Chetty took to be a threat.
26.
The applicant also contends that it was unreasonable for the
arbitrator to say that he couldn't make sense of the employee's
alleged behavior of phoning the manager to ask whether charges were
coming from and then threatened him. When the manager
had given
the notice to him and explained the charges to him already. The
applicant contains that it was perfectly understandable
if the
employee was angry about the charges that he would have made.
The court to Chetty and said what he was alleged to
have said.
Essentially this complaint amounts to a complaint that the arbitrator
appears not to have weighed up alternative
explanations for the
alleged behavior.
27.
The applicant also argues that one of the considerations which the
arbitrator took into account in deciding that the surrounding
circumstances did not support the alleged threat made to Chetty was
that the arbitrator considered the the employee’s suspension
to
have been unfair. The applicant contends that this is simply an
irrelevant consideration.
28.
The arbitrator's finding that it was observed that Chetty, who was
the complainant would also be the person charging the
employee with
making the alleged threat is also attacked by the applicants on the
basis that it completely ignores the evidence
of the human resources
officer that the authority to charge employees had been delegated to
him and that he had assisted Chetty
with drafting the charges.
29.
The applicant also takes issue with the fact that the arbitrator
appear to have attached so much weight to the discrepancy
between the
date on which Chetty testified he had been threatened compared with
the date which appeared in the findings of the
chairperson of the
disciplinary inquiry.
30.
What is remarkable about the evaluation of this charge is that apart
from considering a number of irrelevant pieces of
evidence, the
arbitrator yet again attaches no significance to the fact that
Chetty’s account of the menacing phone call
from Gwala was not
disputed in any respect by Gwala when Chetty was cross-examined.
As in other cases where this glaring
failure to test the employer’s
evidence ought to have played an important role in evaluating the
respective versions, it
plays no roll at all in her evaluation.
31.
Quite apart from raising a number of red herrings in her evaluation
of this charge, on a balance of probabilities, taking
into account
Gwala’s contemptuous attitude towards Chetty illustrated in by
the parking bay incident, it is quite plausible
that Gwala would have
phoned Chetty and threatened him as alleged.
The arbitrator's
finding about the invalidity of the final written warning of 26
January 2007.
32.
The applicant points out that Chetty confirmed that he had issued the
warning to the employee had refused to sign for
it and that it was
never put to Chetty that he had made the warning up. Moreover,
none of the issues relied on by the arbitrator
to make an adverse
finding against the employer on the question of the warning were put
to Chetty when he testified. The
applicant argues that failing
to give Chetty an opportunity to address the arbitrator on such
issues amount to gross misdirection
on her part.
33.
I agree with the applicant that the arbitrator’s conclusion was
unjustified on the reasons given because she failed
to test her
theory about the problems with the warning with Chetty, so he had no
opportunity to address them and they were not
issues raised by
Gwala. On this basis she acted irregularly in postulating an
explanation for the invalidity of the warning
without putting it to
Chetty or without raising her theory with the applicant before she
decided the issue on this basis.
34.
Nonetheless, even though the arbitrator’s finding on the
validity of the warning must be set aside, on considering
the issue
afresh the outcome is not materially different but concerns whether
or not the warning was issued. It must be said the
applicant did not
lay a very good evidentiary basis for concluding the warning had in
fact been issued. No signatures appeared
on the document and it
was not entirely clear from Chetty’s testimony whether he was
claiming he issued it in person to Gwala,
or whether someone else
did. The weakness of Chetty’s direct knowledge of the issuing
of the warning ought to have been apparent
to the applicant and in
the circumstances, it should have realised more direct evidence might
be needed to support its case in
this regard.
35.
Accordingly, notwithstanding the fact that the arbitrator’s
finding that the warning was invalid stands to be set
aside on
review, I am satisfied that the applicant failed on a balance of
probabilities to establish that it was in fact issued
to Gwala.
The
arbitrator's finding that there was no breakdown in the employment
relationship.
36.
According to the applicant the arbitrator failed to take account of
the disruption caused by the employee's absence without
getting
permission in advance. As a result, steps were not taken to
obtain a replacement. So that work could be continued
without
interruption. This adversely affected maintenance work, and the
employee's team was left without transport.
37.
Moreover, the arbitrator's finding that the trust relationship had
not broken down because the employer was not unaware
of the
employee's whereabouts, was not the basis on which the employee had
been dismissed. The employer's case was that he
had not applied
for leave in advance, had not filled out a leave application form and
had not explained or substantiated a reason
for his absence even
after his return. Implicitly, the applicant is saying that the
arbitrator misconstrued the nature of
the misconduct which justified
the employee's dismissal.
38.
In fact there is no basis to be found in the oral testimony recorded
in the transcript that either Sibiya or Mncwango
were advised of the
reason for Gwala’s absence. Mncwango was simply asked “…
were
you not aware about a sicknesses at his [Gwala’s] home, he
never discussed anything (inaudible)?
”, to which he simply
replied “
No, I can’t remember that.
” This
line of questioning was not pursued, nor was it put to him that Gwala
would testify that he had apprised him of this
brother’s
illness. Moreover, when Mncwango was asked about whether Gwala
had given him any reason for his intended
absence on 18 June 2007, he
confirmed that he had said nothing about the reason, but merely that
he would not be coming on that
day and would fill in a leave form.
According to Mnx, Gx did not even ask him to report his absence.
Importantly, it was never
put directly to either his immediate
supervisor or his foreman that Gwala had previously told them about
his brother’s illness
or that he gave that as the reason for
his absence. Lastly, it was never suggested to Chetty in
cross-examination that when he
spoke to Gwala on 18 July 2007, Gwala
mentioned that the reason for his absence concerned his brother.
The consequence
of not doing so is that Gwala’s later evidence
was essentially never tested with the very witnesses who could have
contradicted
it, which means the arbitrator should have been wary of
attaching much weight to it at all.
39.
Moreover, in trying to explain why it would be intolerable to
continue to employ Gwala, Chetty specifically testified
that Gwala’s
conduct would lead to other staff believing they could do as they
liked and get away with it, if he continued
to work for the
applicant.
40.
In any event, whatever the merits of this finding are on review, is
premised that Gwala was found guilty only of
the offense of
unauthorized absenteeism. Once the arbitrator’s acquittal of
Gwala on the other two charges cannot stand,
this conclusion
obviously has to be revisited.
41.
As I have indicated above, on a balanced consideration of the
evidence, taking account of the obviously relevant evidence
the
arbitrator ignored and the failure of Gwala to challenge obviously
incriminating evidence of the employer, he was guilty of
threatening
Chetty over the phone after the initial charges were issued and he
was guilty of gross insubordination in his conduct
relating to the
parking bay incident, by flagrantly flouting Chetty’s authority
in front of other subordinates. Gwala’s
lack of a sense
of accountability towards management is also illustrated by the way
he dealt with his week long absence from work
without obtaining prior
authorization. Gwala attitude towards his employer’s
operational needs and procedures was one
of indifference and it is
difficult to believe given the serious challenges he had shown to the
authority of a senior manager that
his presence at the workplace
could e tolerated in future.
42.
The phrases ‘irretrievable breakdown’ or ‘complete
loss of trust’ are often invoked as if merely
saying such
mantras establishes that such a situation exists as a matter of fact.
However, in this case the invocation of those
terms would be
justified on the objective evidence and the conclusion that the
relationship could not be restored is a reasonable
conclusion.
The
arbitrator's finding of procedural unfairness.
43.
In essence, the applicant contends that the arbitrator applied the
incorrect test in determining whether or not the dismissal
was
procedurally unfair and in finding that the suspension of the
employee was unfair, the arbitrator had acted outside her power
44.
The applicant also rejects as absurd the arbitrator's finding that
the last charge was not explained to the employee,
because Chetty was
not present when the second notice of misconduct was issued to him.
It does so because it believes the finding
is grossly unreasonable,
given that the employee did not attend the inquiry to state whether
he understood the charge or not, and
even in the appeal hearing where
he was represented, at no stage did he claim that he could not
understand the charge, nor did
he do so at the arbitration hearing.
It does appear the arbitrator was desperately looking for something
other than the alleged
non-compliance with the rules relating to who
may initiate disciplinary proceedings.
45.
In any
event the arbitrator seemed to believe that such departures from the
procedure involving lack of authority for certain steps
or flaws in
the suspension process rendered the dismissal procedurally unfair. In
this regard the arbitrator misdirected her enquiry
by applying the
wrong test for procedural fairness. Non-compliance with a procedure
does not
per
se
amount to procedural unfairness. The question to be asked is whether
the employee had a fair opportunity to defend himself against
the
charges, and the arbitrator’s failure to do this amounted to a
gross irregularity.
[1]
46.
The only material issue raised by Gwala, which once again was not
directly put to the applicant’s witnesses, was
that he believed
that the arbitration was scheduled for 26 July 2007 and that he kept
making enquiries to confirm this was the
case as there was a
possibility it might change. Oddly the day he expected it to take
place he says he simply waited for transport
to collect him. He
claimed that he phoned in on 27 July and was told the enquiry had
taken place the previous day, whereas it was
only scheduled to start
that very day. In other words, he believes he was maliciously misled
about the date of the enquiry. Yet,
he does not explain convincingly
why he did not challenge Van Schalkwyk’s evidence how when he
went to fetch Gwala for the
enquiry on 27 July 2007, Gwala was
not at home.
47.
I am satisfied that no material issues of procedural unfairness were
raised by the third respondent in this matter and
accordingly his
dismissal was also procedurally fair.
Conclusion
48.
The arbitrator’s adopted fundamentally flawed approach to the
evaluation of evidence, which resulted in her completely
ignoring the
third respondent’s failure to challenge the applicant’s
witnesses on material aspects of the case, she
failed to evaluate the
evidence in a balanced way. Quite from this she failed to explain why
she simply preferred the employee’s
evidence on a number of
matters and seemed to simply ignore that of the employer without
justification. This amounted to
misconduct on her part in
relation to her duties as a commissioner in terms of section
145(2)(a)(i) of the LRA and her award stands
to be set aside on this
basis. Such an approach is also one no reasonable arbitrator
would adopt.
49.
In addition she materially misdirected herself in the way she
assessed the procedural fairness of the third respondent’s
dismissal which also constituted misconduct in relation to her duties
as an arbitrator.
50.
In the analysis above I have re-evaluated the respective charges and
found that, on a balance of probabilities, the employer
had a fair
reason for dismissing the applicant who was correctly found guilty on
the substance of all three charges and no material
evidence of
procedural unfairness was led to justify a conclusion of procedural
unfairness. In summary his dismissal was
both procedurally and
substantively unfair.
51.
This was a review which ought not to have been opposed and in the
circumstances it is appropriate that costs follow the
result.
Order
52.
In view of the above,
52.1.
The second
respondent’s arbitration award is reviewed and set
aside;
52.2.
The findings
of the arbitrator are substituted with a finding
that the third respondent’s dismissal was procedurally and
substantively
fair;
52.3.
The third
respondent is ordered to pay the applicant’s costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 28 October 2010
Date
of judgment: 26 November 2010
Appearances:
For
the applicant: Mr P Shangase of Shangase Attorneys
For
the third respondent: Shanta Reddy Attorneys
[1]
See,
Khula
Enterprise Finance Ltd v Madimane & Others
(2004)
25 ILJ 535 (LC)
at 540-541 paras [12] – [13]