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[2011] ZALCJHB 182
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Department of Housing and Local Government, Limpopo and Another v General Public Service Sectoral Bargaining Council and Others (JR 369/10) [2011] ZALCJHB 182 (6 May 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG Not
reportable
Case No: JR 369/10
In the matter between:
DEPARTMENT OF LOCAL
GOVERNMENT AND HOUSING : LIMPOPO
First Applicant
MEC : DEPARTMENT OF LOCAL
GOVERNMENT AND HOUSING :
LIMPOPO
Second Applicant
And
THE GENERAL PUBLIC SERVICE
SECTORAL BARGAINING COUNCIL
First Respondent
A.C. MANNDE N.O
Second
Respondent
M. P. LENTSWANE
Third
Respondent
JUDGMENT
BHOOLA J :
Introduction
[1] This is an application to review
and set aside the arbitration award issued by the second respondent
(“the arbitrator”)
of 12 January 2010 issued under case
number PSGA 1445-08/09.
Background facts
[2] The third respondent (“the
employee”) was employed as Manager:
Strategic Planning in May 2007, and
was dismissed on 22 January 2009 following a disciplinary enquiry in
which he was charged as
follows:
“On or about 13 November at or
nearby Aventura Hotel in Bela-Bela during the Vuna awards you
committed an act of sexual harassment
in that you raped Ms Marcia
Alfred (“the complainant”), thus contravening Annexure A
of the Disciplinary Code and Procedures
for the Public Service”.
[3] The employee lodged an appeal,
which was unsuccessful, and referred a dispute concerning his unfair
dismissal to the first respondent.
The arbitrator found that his
dismissal was substantively unfair but procedurally fair and awarded
him reinstatement.
Grounds of review
[4]
The applicants raise a
number of grounds of review in their written heads of argument, and
these were distilled by Mr Moshoana during
his oral submissions into
the following (without however abandoning the written grounds):
The arbitrator
made a finding that was inconsistent with the evidence before him
when he concluded that the complainant did not
testify that she
pushed the employee away as a sign of refusing his kissing. In so
doing he ignored the evidence of the complainant
that she had
resisted the intimate contact and told him that she was not
interested. Accordingly he ignored material evidence
and failed to
apply his mind to the issues to be determined and his award is
reviewable on this ground.
The
arbitrator placed too much weight on the complainant’s
statement that the employee fondled her, and drew an inference
that
was unjustified when he found as follows : “I fail to see how
a person who was raping got time and space to fondle
the lady’s
private parts”. In reaching this conclusion he failed to take
into account the complainant’s evidence
that she said no and
told him to stop. The conclusion about fondling emanated from the
disciplinary enquiry and it is clear
from the context that the
arbitrator misconstrued her evidence.
The
finding that the parties engaged in consensual sex ignores the
evidence of the complainant that she objected and tried to
push him
away. He completely disregards her evidence when he concludes that
she “did not testify that she pushed the Applicant
away as a
sign of refusing the kissing”. The record is replete with her
references to resisting the conduct of the employee
and telling him
to stop until she succeeded in pushing him away. The arbitrator’s
failure to take this material evidence
into account constitutes a
gross irregularity which renders the award reviewable on the
unreasonableness standard.
The
arbitrator rejects the complainant’s evidence that the
employee forced his knees between her legs. He finds that the
employee rebutted this evidence. However, there was no direct
challenge to this evidence either in cross-examination nor in the
answering affidavit (in which it seems to be pleaded that by
implication he did not do so). Mr Moshoana submitted that this in
itself constitutes a gross irregularity. It was uncontradicted and
renders the award unreasonable.
The
conclusion that the complainant was willing to go to the employee’s
room ignores the evidence relating to the basis
upon which she
agreed to accompany him, and the inference drawn is not necessarily
the only one that can be drawn in the circumstances.
[5] Mr Moshoana
cited
Bestel v Astral Operations Ltd
[2011] 2
BLLR
129
(LAC), where the court referred to an article by Anton Myburgh
dealing with the scope of the
Sidumo
test (See A Myburgh “
Sidumo v
Rusplats: How have the Courts deal with it?”
(2009)
30
ILJ
1))
as follows :
[14] Myburgh contends that a
commissioner’s finding, on the facts, will be considered to be
unreasonable if the finding is:
i) unsupported by any evidence;
ii) based on speculation by the
commissioner;
iii) entirely disconnected from
the evidence;
iv) supported
by evidence that is insufficiently reasonable to justify the
decision; or
v) made in ignorance of evidence
that was not contradicted.
[15] In coming to this conclusion,
Myburgh cites a dictum
of Van Niekerk AJ in Sil Farming CC t/a
Wigwam v CCMA (unreported LC judgment cited by Myburgh at 13) in
which he states: ‘A
commissioner arrives at a decision which
no reasonable decision maker could reach if the decision is
unsupported by any evidence,
or by evidence that is insufficient to
reasonably justify the decision arrived at or where the decision
maker ignores uncontradicted
evidence.
Third Respondent’s Opposing
Submissions
[6] Mr Schneaage submitted that the
evidence led at the arbitration should be viewed in its totality, and
that the award is equitable
should not be interfered with. It is
based on the arbitrator having heard the evidence first hand and he
is in the best position
to draw conclusions based on the conduct,
reliability and credibility of witnesses. It is incorrect moreover
that the arbitrator
failed to apply his mind to the evidence of the
complainant in reaching the conclusions he did – in fact he
specifically
rejects her evidence about being forced with the
employee’s knees. Furthermore, it was on the basis of her
evidence that
the fondling issue emerged and the arbitrator was
obliged to have regard thereto, and it is not correct that the
employee did not
testify about this conduct. The arbitrator applied
his mind to the totality of evidence led and drew negative inferences
that were
justified in the circumstances. The arbitrator in the
circumstances correctly drew the inference that there was consent by
the
complainant and a proper analysis of the award and the record
reveals that the arbitrator did not commit any misconduct, nor act
irregularly nor exceed any of the powers conferred upon him.
[7] The arbitrator correctly
determined the matter on balance of probabilities, which is the
correct standard of proof in labour
matters: see
Avril Elizabeth
Home for the Mentally Handicapped v CCMA & others [
2006] 9
BLLR 833
(LC), and rejected the cautionary rule applicable to single
witness evidence . He was faced with circumstantial evidence which he
properly had regard to, and he was in the best possible position to
draw inferences which he did based on the totality of evidence
before
him. This approach is consistent with that advocated in
Aluminium
City (Pty) Ltd v MEIBC
(2006) 27 ILJ 2567 (LC) where the court
held that a commissioner should not rely exclusively on the absence
of direct evidence
establishing the employee’s guilt, without
having proper regard to the existence of circumstantial evidence, and
further
that circumstantial evidence should not be evaluated on a
piecemeal basis but the commissioner should step back objectively and
draw inferences based on a balance of probabilities from the evidence
as a whole. This was the approach taken by the arbitrator
in
evaluating the evidence as a whole and he cannot be said to have made
an unreasonable award. He was not required to every specific
fact
into account as asserted by the applicants.
[8] A number of authorities were cited
by Mr Schneaage asserting that the commissioner’s own sense of
fairness must prevail
–
inter alia
Woolworths (Pty) Ltd
v CCMA & others
[2008] ZALC 38
;
[2008] 8 BLLR 812
(LAC) and
Engen Petroleum
Ltd v CCMA & others
(2007) 28 ILJ 1507 (LAC). However, these
authorities make reference to fairness in the determination of
sanction as opposed to deference.
Evaluation
[9] It
is by now trite that the applicable test is as set out in
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ
2405
(CC)
and requires an
evaluation of whether the decision could have been made by a
reasonable decision maker on the evidence before him.
This requires
t
he
arbitrator
to
apply his mind to the determination of the issue before him and the
evidence led on
material issues.
It
follows that where an arbitrator fails to do so his award falls to be
set aside. This approach was confirmed by Ngcobo CJ in
Sidumo
(supra) in the following terms :
[268]
It follows therefore that where a commissioner fails to
have regard to material facts, the arbitration proceedings cannot in
principle
be said to be fair because the commissioner fails to
perform his or her mandate. In so doing, …. the
commissioner’s
action prevents the aggrieved party from having
its case fully and fairly determined. This constitutes a gross
irregularity in
the conduct of the arbitration proceedings as
contemplated in section 145(2)(a)(ii) of the LRA. And the ensuing
award falls to
be set aside not because the result is wrong but
because the commissioner has committed a gross irregularity in the
conduct of
the arbitration proceeding.
[10] In my view it
is apparent from the submissions made by the applicants that the
finding reached by the arbitrator on a number
of material aspects was
unsupported by the evidence, and was made in disregard of material
evidence led by the complainant. If
one applies the
Sidumo
test as described by Myburgh above, the
arbitrator falls foul of nearly all the categories justifying the
unreasonableness of the
award. It appears moreover that he applies a
criminal standard to interrogating the conduct of the complainant
instead of determining
whether there was a valid reason for the
employee’s dismissal. He pays no regard to the seriousness of
the misconduct and
in fact proceeds to make a value judgment of the
conduct of the complainant. This is apparent from
inter
alia
the following paragraph in the
award : “
This man (the applicant)
is the one that is pestering Marcia with the love affair proposal.
According to Marcia’s testimony
she ones (sic) told the
Applicant that she does not want to date
dogs
like him
(arbitrator’s
own emphasis). I find Marcia’s testimony inconsistent with his
(sic) action. I view the Applicant to be
Khathu’s competitor
but Marcia’s actions seem to be embracing the Applicant. I take
it that Marcia was going to distance
herself from the Applicant
especially at the time she was waiting for her boyfriend. To the
(sic) worse Marcia left her purse in
the custody of this
unreliable
dog
(arbitrator’s own
emphasis) amidst the sea of her colleagues. Marcia trusted the
Applicant even above those who offered her
transport to the events”.
The arbitrator’s emphasis in the extract above, which is
contradicted elsewhere in the award (where he summarises her evidence
as being that “dogs like him were not wanted in this world”
referring to men who cheat on their wives) confirms that
he made
findings in ignorance of evidence that remained uncontradicted.
On
this basis the award must fall to be set aside and in the
circumstances there is no need to enquire into the procedural
irregularities
relied upon in the applicant’s written heads.
Given that the record is complete and the dismissal occurred in 2009,
it is
in the interests of expediency and the fair administration of
justice to substitute an order rather than remitting the matter for
re-consideration by another arbitrator.
Order
[11] In the premises, I make the
following order :
(a)The award is reviewed and set
aside.
(b)The award is substituted with an
order declaring the dismissal of the third respondent to be
substantively fair.
(c)The third respondent is to pay the
applicants’ costs.
_______________
Bhoola J
Judge of the Labour Court
Date of Hearing : 1 April 2011
Date of Judgment : 6 May 2011
Appearance
For the Applicants : Mr G Moshoana
from Mohlaba & Moshoana Inc
For the Third Respondent: Adv
Schneaage instructed by Lombard Attorneys
9