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[2011] ZALCJHB 24
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Abrahams v General Public Service Sectoral Bargaining Council and Others (JR1790/08) [2011] ZALCJHB 24; [2012] 2 BLLR 172 (LC) (2 February 2011)
1
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
Case number
JR1790/08
In the matter
between:
S ABRAHAMS
…...........................................................................................................
Applicant
And
GENERAL PUBLIC
SERVICE SECTORAL
BARGAINING
COUNCIL
…..............................................................................
1
st
Respondent
DEPARTMENT OF
PUBLIC TRANSPORT
AND WORKS:
GAUTENG PROVINCIAL
GOVERNMENT
…..............................................................................................
2
nd
Respondent
ADVOCATE PH
KIRSTEN
…...........................................................................
3
rd
Respondent
THE SECRETARY:
GPSSBC
…........................................................................
4
th
Respondent
JUDGMENT
Molahlehi J
Introduction
This is an
application to review and set aside the ruling made by the first
respondent under case number G/GP/39 dated 10
th
July 2008
in terms of which the first respondent ruled that the first
respondent did not have jurisdiction to determine the rescission
application that the applicant had filed. The rescission application
concerned an alleged arbitration award made in the absence
of the
applicant.
In the alternative
the applicant seeks to review the decision of the third respondent
made under case number D/GP/39 made on the
3
rd
December
2007. In terms of that decision the third respondent found the
applicant guilty of bribery and or fraud and recommended
that she be
dismissed. This application is accompanied by an application for
condonation for its late filing.
The reason for the
late filing of the review application was because the applicant was
pursuing the rescission of the dismissal
decision which was made in
her absence. I am of the opinion that for this reason alone the late
filing of the review application
should be condoned.
Background facts
The applicant who
was formerly employed as deputy director of finance of the second
respondent was charged with theft, bribery
and fraud. The charges
were based on the allegations that during April 2006 she authorised
payment totalling R450 000, 00 to
a certain Mahomed for service
which were never rendered to the first respondent.
The disciplinary
hearing was as per the agreement between the parties conducted in
terms of the Disciplinary Code and Procedure
of the
Public Service Coordinating Bargaining Council (PSCBC),
Resolution
1 of 2003 (resolution 1). In the heads of argument the applicant
says that the relevant clause in this regard is clause
3.3 of that
resolution. However in terms of Resolution 1 of 2003 as posted on
the website of the PCSCBC, the relevant clause
is 7.3 of that same
resolution. The wording of the clause as quoted in the heads of
argument is the same as that of clause 7.3
of resolution 1. Clause
7.3 reads as follows:
“
Conducting
the disciplinary hearing
The
employer and the employee charged with misconduct may agree that the
disciplinary hearing will be chaired by an arbitrator from
the
relevant sectoral bargaining council appointed by the council. The
decision of the arbitrator will be final and binding and
only open to
review in terms of the
Labour Relations Act, 1995
. All provisions
applicable to disciplinary hearings in terms of this Code will apply
for purposes of these hearings. The employer
will be responsible to
pay the costs of the arbitrator."
The disciplinary
hearing which was chaired by the third respondent (the panellist)
was scheduled for the 3
rd
December 2007. The notice of
set down was sent to both parties by the first respondent. It is
common cause that the applicant
did not attend and the hearing
proceeded in her absence. She claims that she never received the
notice of set down and it was
for that reason that she applied to
have the arbitration hearing rescinded. She in this respect
contended that she was not in
wilful default. The first respondent
refused to entertain the rescission application on the ground that
it did not have jurisdiction
to do so.
Grounds for
review
Rescission
ruling:
The applicant contends that the provisions of clause 3.3
of resolution 1 cannot be interpreted in the manner that deprives
her
rights arising from the provisions of
s188A
read with
s144
of
the LRA. The applicant further contends that the first respondent
misconstrued its function and acted
ultra vires
in arriving
at the conclusion that it did not have jurisdiction to entertain the
rescission application. The decision of the
first respondent is also
criticised for being irrational because it is duly appointed to
regulate disciplinary proceedings and
matters related thereto.
Dismissal
ruling:
As concerning the review of the decision to dismiss her,
the applicant set out the grounds for review in the founding
affidavit
as follows:
“
38
I further submit that the ruling of the third respondent ought to be
reviewed and set aside for the reasons set out in the recession
application;
39 I rely in this
regard specifically on the averments set out in paragraphs 17 to 33
of the recession application;
40 I reiterate
that I did not receive notice of either the hearing on merits/guilt
or the hearing on sanction;
41 I submit that
an award, having been made pursuant to proceedings held without
notice to me is a nullity;
In so far as the
third respondents ruling on sanction denies me the right to apply
for rescission, it is ultra vires and reviewable
on the same grounds
as the rescission ruling.”
The other grounds
upon which the applicant seeks to review the decision to dismiss her
are those set out in the rescission application.
The applicant
denies ever authorising payments to Mahomed and states that she
could not have paid Mohomed because in terms of
s 45 of the Public
Finance Act No 1 of 1999 (PFMA), her role is limited to authorising
the transfer on the Basic Accounting System
(BAS) after a decision
has already been made. According to her, the decision to pay a
service provider in terms of s 45 of the
PFMA is made by the
director of government garage motor transport. The applicant further
stated that once the decision has been
made her role was to enter
the details of the service provider into the computer system.
As concerning
mitigation after being found guilty as charged the applicant says
that the chairperson of the hearing said that
she should make her
submission within 7 (seven) days after the finding of guilty was
made but however proceeded to make his determination
in terms of the
sanction without satisfying himself that the decision was served on
her. She contended that she never received
the decision on the
finding that she was guilty after the decision on the sanction had
already been made and therefore she was
denied a hearing in as far
as the sanction was concerned.
Evaluation
The fist issue to
deal with in this matter is whether or not the decision of the first
respondent refusing to rescind the dismissal
of the applicant should
be reviewed. As indicated above the review application is based on
the contention that the proceedings
which were conducted by the
third respondent were in the nature of arbitration proceedings as
envisaged in terms of s 188A of
the LRA. This court had the
opportunity to consider the same issue in the case of
Lulama
Lloyd Mayedwa v
General Public Service
Sectoral Bargaining Council & another
[2009] JOL 23713
(LC).
In that case the court in dealing
with the same issue held at paragraph [14] of the judgment that:
“
[14]
The approach adopted in Hairdressing & Cosmetology
(supra), is the same as that which was adopted in Minister
of Safety
& Security v Safety & Security Sectoral Bargaining Council &
others
[2002] 1 BLLR 56
(LC) [also reported at
[2001] JOL 9045
(LC)]], where the court in dealing with the facts which are very
similar to those in the present instance held that the bargaining
council could not by way of an agreement, using the phrase “final
and binding”, take away the jurisdiction of the court.
In that
case the disciplinary code provided that the outcome of an internal
appeal would be “final and binding” and
accordingly
precluded the dismissed employee from referring dispute for statutory
resolution after his appeal was unsuccessful.
[15] The
use of the phrase “final and binding”, in a collective
bargaining agreement does not necessarily or automatically
turn a
process envisaged therein into an arbitration process and thus giving
the court jurisdiction to entertain a review arising
from such a
process.”
The argument that
clause 7.3 or 3.3 as the case may be have resolution 1 should be
interpreted to constitute a pre-dismissal arbitration
as envisaged
in s188A of the LRA was also rejected in
Lulama Lloyd Mayedwa
in
that the requirements of s 188A were not satisfied by the agreement
concluded in terms of clause 3.3. The court held in that
case that
the requirements of s 188A were
mandatory.
The court went further to say:
“
The
process that the parties in this matter embarked upon does not
satisfy the requirements of
section 188A
of the
Labour Relations Act,
for
it to be said to be a pre-arbitration dismissal process as
envisaged by that section.
Section 188A
provides as follows:
“
(1)
An employer may, with the consent of the employee, request a council,
an accredited agency or the Commission to conduct an arbitration
into
allegations about the conduct or capacity of that employee.
(2) The request
must be in the prescribed form.
(3) The council,
accredited agency or the Commission must appoint an arbitrator on
receipt of–
(a) Payment by
the employer of the prescribed fee; and
(b) The
employee's written consent to the inquiry.
(4) (a) Employee
may only consent to pre- dismissal arbitration after the employee has
been advised of the allegation referred to
in subsection (1) and in
respect of a specific arbitration.
(b) Despite
subparagraph (a), an employee earning more than the amount determined
by the Minister in terms of section 6(3) of the
Basic Conditions of
Employment Act, may consent to the holding of a pre-dismissal
arbitration in a contract of employment.”
In the light of the
above I do not agree that the proceedings which were conducted by
the third respondent amounted to an arbitration
hearing as envisaged
in s188A and thus the proceedings were not conducted under the
auspices of the first respondent. The first
respondent was simply
mandated to facilitate the disciplinary process. Accordingly this
court does not have jurisdiction to review
the decision of the first
respondent that it did not have jurisdiction to rescind the decision
of the third respondent.
I now turn to the
review of the decision to dismiss the applicant. The applicant
contends that the decision to dismiss her was
a nullity and rely in
that respect relied on the authority of
Vidavsky v Body Corporate
of Sunhill Villas
2005 (5) SA 200
(SCA).
The facts in that case
are distinguishable from those of the present case in that, in that
case the court was dealing with the
arbitration proceedings held
under the
Arbitration Act 42 of 1965
. In that case the notice was
sent by registered mail and was only received by the applicant on
the day of the hearing. In the
present matter the notice of the
disciplinary hearing was sent to the applicant at the fax number
which she had provided and
where other previous correspondences were
sent to her. On the day of the hearing the chairperson proceeded
with the hearing in
the absence of the applicant after satisfying
himself that the notice of the hearing was sent to the correct
address of the applicant.
It has not been disputed that the address
used to notify the applicant was the correct one.
In as far as the
merits of the matter are concerned the chairperson of the
disciplinary hearing arrived at the decision as he
did after
listening and considering the uncontested evidence which was put by
the first respondent before him. It is trite in
our law that as a
general rule a trier of the facts need not in a default hearing
interrogate with the uncontested evidence put
before him or her.
Thus an applicant challenging a decision granted by default has much
heavier duty to show that such a decision
is unreasonable.
In my view, the
applicant has not shown that the third respondent acted unreasonably
or irrationally as she was properly notified
of the hearing. The
applicant has also not shown that the decision of the third
respondent based on the uncontested evidence
of the first respondent
was unreasonable. The applicant’s application therefore stands
to fail. As concerning the costs,
I do not belief that it would be
fair to award costs.
In
the premises I make the following order:
The applicant's
application to review the outcome of the disciplinary hearing is
dismissed.
There is no
order as to costs.
_______________
Molahlehi
J
Date of Hearing : 28
October 2010
Date of Judgment : 2
February 2011
Appearances
For the Applicant:
F. Boda
Instructed by :
Dockrat Incorporated
For the Respondent:
No appearance for the Respondents