About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 117
|
|
Madibeng Local Municipality v South African Local Government Bargaining Council (North-west) and Others (J2033/09) [2011] ZALCJHB 117; (2011) 32 ILJ 2978 (LC) (9 June 2011)
IN THE LABOUR COURT OF SOUTH
AFRICA
(HELD IN JOHANNESBURG)
Case NO: J2033/09
In the matter between:
MADIBENG LOCAL MUNICIPALITY:
.........................................................................
Applicant
And
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL (NORTH
WEST DIVISION)
............
1st
Respondent
COMMISSIONER MOJAKI MOSALA
N.O
..........................
2nd
Respondent
MAUREEN CIBE
...............................................................
3rd
Respondent
___________________________________________________
JUDGMENT
___________________________________________________
LALLIE AJ
[1] This is an application to
review and set aside the arbitration award of the second respondent
(the commissioner). In the award
the commissioner found the dismissal
of the third
respondent, Ms Cibe (Cibe), to
have been procedurally and substantively unfair and ordered her
reinstatement and reimbursement.
[2] The applicant also applied
for the stay of the enforcement of the stay of the arbitration award
pending the determination of
this review application.
Background facts
[3] Cibe was employed by the
applicant as a legal administration officer. She was subjected to a
disciplinary enquiry after Ms Sekgothe
(Sekgothe) who works for the
applicant as a senior clerk received a letter from Hyundai Mall
Carnival, a car dealership. The letter
was written on the applicant’s
letter heads. Its contents purported to confirm that Cibe was a legal
advisor at the applicant
who received a monthly unlimited travel
allowance of not less than R5000.00.
[4] Cibe was found guilty of
failure to conduct herself with honesty and integrity by representing
to Hyundai Motors that she qualified
for a car allowance of not less
than R5000.00 by means of a forged letter purportedly from the
Municipality’s Finance Department.
She was dismissed and
challenged the fairness of her dismissal at the first respondent. The
second respondent (the arbitrator)
found her dismissal both
substantively and procedurally unfair and reinstated her with effect
from 1 August 2009. He further ordered
the applicant to reimburse her
an amount of R246 545.97.
The arbitration award and
grounds for review.
[5] The applicant’s
grounds for this review are that the arbitrator committed misconduct
in relation to his duties as an arbitrator,
gross irregularities in
conducting the arbitration and exceeded his powers.
[6] By agreement no evidence was
led at the arbitration. The parties submitted documents and argued
their respective cases. The
commissioner found that contrary to
section 23 of the Labour Relations Act 65 of 1996 (the LRA), the
applicant had breached the
collective agreement which contains the
disciplinary procedure twice. Firstly by not affording Cibe the right
to appeal the decision
of the chairperson of her disciplinary hearing
and by suspending her in excess of the 3 months’ period
prescribed in the
collective agreement or for a reasonable time
pending her disciplinary enquiry. He found that Cibe was suspended
for 2 years, a
period he found unreasonably excessive.
[7] The arbitrator further found
that the applicant failed to discharge the onus of proving the
fairness of Cibe’s dismissal
as required in section 192 of the
LRA in that it provided no proof that Cibe produced the letter and
misrepresented herself and
the applicant. He preferred Cibe’s
version that she did not write the letter and she never intended to
misrepresent her financial
status to the dealership.
The test for review
[9] The test for review is enunciated by the
Constitutional Court in
Sidumo & another v Rustenburg Platinum
Mines & others
[2007] 12 BLLR 1097
(CC) as follows:
“
Is the decision reached by
the commissioner one that a reasonable decision maker could not
reach?”
[10] In
Relyant Retail Limited t/a Bears Furnitures v
Commission for Conciliation, Mediation and Arbitration & others
reported in
[2009] JOL 24327
(LC) the Labour Court found its function
in considering whether or not to interfere with the arbitration award
on review limited
to those grounds provided for in term of section
145 of the Labour Relations Act 66 of 1995 (the LRA), as suffused by
the constitutional
standard of reasonableness. The reasonableness
standard entails the applicant having to show that the decision
reached by the arbitrator
under the statutory arbitration system is
one which a reasonable decision-maker could not reach.
[11] The Court explained the principle of reasonableness
as follows in the
Sidumo
judgment
supra
:
“
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
proceedings.”
[12] The Court in
CUSA v Tao Ying Metal Industries &
others
[2009] 1 BLLR (CC) held as follows:
“
It is clear, as Ngcobo J
holds, that a commissioner is obliged to apply his or her mind to the
issue in a case. Commissioners who
do not do so are not acting
lawfully and/or reasonably and their decisions will constitute a
breach of the right to administrative
justice.”
Analysis of the arbitration
award
[13] In the analysis of evidence
the arbitrator quoted the purpose of the disciplinary procedure in
the main collective agreement
of the South African Local Government
Bargaining Council (the collective agreement). He then dealt with the
question of suspension
and made the following finding:
“
Suspension
cannot take place in vacou. It is linked to a formal process for
initiating disciplinary hearing . The employee’s
suspension
from 2 July 2007 does not seem to be linked to any disciplinary
process. This is but one of the areas the respondent
fails to explain
in argument and it is material to the employee”
[14] This is but one of the many
instances in which the arbitrator demonstrated his failure to apply
his mind to the issue before
him. Had he read the documents presented
at the arbitration, he would have realized that Cibe had sated very
clearly in her own
heads of argument that she was suspended after
allegations of fraud were made against her. His conclusion that her
suspension,
to use the arbitrator’s words, took place
in
vacuo
is unreasonable.
[15] The arbitrator made the
following finding on suspension:
“
The
employee was suspended for a period in excess of three (3) months as
prescribed by the collective agreement. The respondent
does not in
any way provide an explanation for this excessive suspension save to
say that the employee did not challenge the suspension.
Sorry, it is
raised in these proceedings.”
[16] The arbitrator made a
finding that the applicant flouted the collective agreement by
suspending Cibe in excess of 3 months
without an explanation.
[17] In rejecting the
applicant’s argument that Cibe did not challenge her suspension
he over looked the fact that a dispute
regarding the unfair
suspension of an employee is governed by section 186 (2) (b) LRA. An
unfair suspension constitutes an unfair
labour practice. As the
arbitrator has stated that the issue he had to determine was Cibe’s
unfair dismissal he should not
have dealt with the unfair suspension
dispute which falls within the jurisdiction of the Commission for
Conciliation Mediation
and arbitration (the CCMA).
[18] The arbitrator’s
failure to identify issues which were properly before him is a clear
indication of his failure to apply
his mind to the issue before him.
[19] The arbitrator further made
a finding that the applicant also flouted the collective agreement by
delaying the finalization
of the disciplinary hearing by 2 years.
This finding cannot be factually correct because the arbitrator
stated in his award that
Cibe was suspended on 2 July 2007 and
dismissed on 4 August 2008. The delay is was about 13 months.
[20] The arbitrator made a
finding that the applicant provided no proof that Cibe produced the
letter and misrepresented herself
and the respondent. He concluded
that the applicant had failed to discharge the onus that her
dismissal was unfair. He found that
Cibe had provided him with
evidence that supported the theory that she did not write the letter.
He concluded that her case was
credible and to be believed. He
ordered her reinstatement having found her dismissal substantively
and procedurally unfair.
[21] The arbitrator was
presented with 2 mutually destructive versions. He rejected the
applicant’s version without giving
reasons. Although the award
has a sub-heading for analysis of evidence and arguments the
arbitrator did not analyse the evidence
at all. He did not disclose
the evidence which forms the basis of his decision.
[22] The correct approach to
deal with factual disputed is laid down by the SCA in
STELLENBOSCH
FARMERS’ WINERY GROUPLTD AND ANOTHER v MARTELL ET CIE AND
OTHERS
2003 (1) SA 11.
It involves the making of findings on the
credibility of factual witnesses, their reliability and
probabilities.
[23] The arbitrator gave no
reasons for finding Cibe’s dismissal procedurally unfair. He
therefore failed in his duty to provide
brief reasons for his
decision.
[24] Having reinstated Cibe with
effect from 1 August 2009 the arbitrator ordered the applicant to
reimburse her an amount of R246 545.97
which is equivalent to
her 11 months’ salary.
[25] Section 193 of the LRA
which deals with relief for unfair dismissal does not provide for
reimbursement. The arbitration award
reinstating Cibe with effect
from1 August 2009 was issued on 20 July 2009. The arbitrator had no
basis to grant any additional
form of relief to the reinstatement as
section 193 of the LRA provides that payment of compensation can be
ordered as an alternative
to reinstatement or reemployment.
[26] Cibe indicated in the pre-
arbitration minute that the relief she was seeking was compensation.
For reasons not stated or implied
in the arbitration award the
arbitrator did not grant her compensation but reinstatement and
reimbursement. That is not the conduct
of an arbitrator who applied
his mind to the issue before him.
[27] The arbitrator granted a
costs order for the postponement of the arbitration on 12 December
2008 pending the outcome of a rescission
application because he found
the postponement an unnecessary waste of resources intended to
frustrate the arbitration proceedings.
He found the delay caused by
the postponement unacceptable whatever legal argument. Not all
postponements cause unnecessary delays.
There was a duty on the
arbitrator to consider the reasons for the postponement of the 12
December 2008 before making a determination
whether it was justified
or warranted a costs order against the applicant. His approach shows
that he wanted to punish the applicant
for the postponement
irrespective of the circumstances surrounding the request for the
postponement. His refusal to consider legal
arguments on whether the
postponement was justified rendered his decision to grant the costs
order reviewable.
[28] In
Edcon Ltd v Pillemer
NO & Others
[2011] BLLR 1
(SCA) after referring to
Sidomo
(supra) the SCA held as follows:
“
It is
inevitable that courts, in determining the reasonableness of an
award, have to make a value judgment as to whether a commissioner’s
conclusion is rationally connected to his/her reasons taking account
of the material before him/her. That this is the correct approach
has
been stated on a number of occasions by the LAC, this Court in the
Sidumo matter as well as the Constitutional Court in the
same
matter.”
[29] In this review application
the arbitrator’s conclusion is not rationally connected to his
reasons taking into account
the material before him. Instead the
arbitration award is awash with illustrations of the arbitrator’s
failure to carry out
his mandate. There is no reason why costs should
not follow the result.
[24] I make the following order:
1. The arbitration award made by
the second respondent on 20 July 2009 is reviewed and set aside.
2. The matter is referred to the
South African Local Government Bargaining Council (North West
Division) for a rehearing before
another arbitrator.
3. The third respondent is to
pay the costs of these proceedings.
_________________
LALLIE
AJ
Date of hearing : 10 March 2011
Date of judgment : 9 June 2011
Appe
ar
ances:
For the Applicant: Adv Molapo
Instructed by: Mmamahlola
Rabnyana Attorneys
For the Third Respondent: Mr M J
Gouws
13