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[2011] ZALCJHB 52
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South African Municipal Workers Union obo Mahlangu v South African Local Government Bargaining Council and Others (JR 2595/09) [2011] ZALCJHB 52; [2011] 9 BLLR 920 (LC); (2011) 32 ILJ 2738 (LC) (21 June 2011)
LABOUR COURT OF SOUTH
AFRICA
(HELD AT BRAAMFONTEIN
Case: JR 2595/09
In the matter
between:
SOUTH AFRICAN
MUNICIPAL WORKERS
UNION obo C MAHLANGU
…..........................................................................
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
….................................................................
First
Respondent
MPAHLANI J (
N.
O.)
…....................................................................
Second
Respondent
GERT SIBANDE DISTRICT
MUNICIPALITY
….................................
Third Respondent
JUDGMENT
LAGRANGE, J:
This matter concerns a
review application to set aside the findings of the second
respondent, the arbitrator, that Mr C Mahlangu’s
dismissal by
the third respondent on 2 October 2007 was substantively and
procedurally fair.
Mr Mahlangu
(‘Mahlangu’) was dismissed after the employer decided
not to accept the recommendation of the chairperson
of the
disciplinary enquiry. His recommended sanction was that Mahlangu be
dismissed, but the sanction be suspended for a period
of 12 months,
provided the employee was not found guilty of similar misconduct
during that period. The recommendation was not
to the employer’s
liking and it decided instead to summarily dismiss Mahlangu.
A dispute over the
fairness of the dismissal was referred to the bargaining Council
and the award following that referral was
taken on review. On 3
February 2009, this court set aside the original award and referred
the matter back for a fresh hearing
before another Commissioner. On
the second occasion, the parties agreed to present a stated case to
the arbitrator, in which
the main issues in contention were raised.
On 11 August 2009, the second arbitrator handed down his award.
The relevant facts
It is not necessary for
the purposes of this judgement to restate all the agreed facts
recorded by the parties, but the salient
ones are mentioned below.
The parties were bound
by a collective agreement, part of which set out the procedures to
be observed at disciplinary hearings.
The applicant was charged
with two counts of misconduct: the first of acting in an improper
manner, and the second for disruptive
behaviour. Although it was
not part of the facts set out expressly in the stated case, it
appears to be common cause that the
charges arose out of an
incident in which Mahlangu allegedly displayed gross disrespect,
uttered rude and abusive language
to the municipal manager and
further made aggressive advances towards the same manager, in the
course of which he humiliated
the manager in front of staff and
junior employees. The second charge was that he disrupted the
functioning of the municipality
by blocking the venue for the
sitting of a mayoral meeting and blocked free access of the public
to the reception area of the
municipal premises. At the time of the
hearing the applicant had been employed by the municipality seven
years and had a clean
disciplinary record.
The chairperson of the
internal disciplinary enquiry, Mr Sibeko (‘Sibeko’),
found Mahlangu guilty of the charges
and issued the recommended
sanction of suspended dismissal described above. The municipality
sought clarity on aspects of the
chairperson's ruling, without
advising the applicants until after it had received the
chairperson’s response. The full
scope of the municipality's
enquiries is not entirely clear, but from the chairperson’s
written reply it seems the principal
enquiry directed to him was to
provide clarity on the criteria which he had used in formulating
his recommended sanction. On
18 September 2007 the municipality's
attorneys sent a copy of the chairperson's response to the
applicant’s union. This
was the first time the applicants
were made aware of communications between the employer and the
chairperson.
In his response to the
employer’s enquiries, the chairperson stated, amongst other
things, that :
"Before dealing
with the questions raised by the Municipality, I wish to state that
my sanction is merely a recommendation
to the municipality."
"The
municipality has got the right to deviate or not to deviate from the
recommended sanction."
"In other words
it's up to the municipality to accept the recommended sanction or
not. It may substitute the recommended
sanction with a sanction that
it deems fit."
The municipality then
advised the applicant that he would be summarily dismissed with
effect from 2 October 2007, without affording
him a further
opportunity to be heard before it took this decision.
The arbitrator's
award
Substantive fairness
In deciding that the
applicant’s dismissal was substantively fair, the factors set
out below weighed heavily with the
arbitrator.
Firstly, the arbitrator
found it was of the utmost importance that the presiding officer
had an unrestricted choice of sanction
because the collective
agreement provided that he could choose,
amongst
other
things, any of a number of specified sanctions. Secondly, he held
it was clear that the chairperson chose not to impose
a sanction
but rather to recommend one. In this regard, the arbitrator found
it noteworthy that the power of the chairperson
to impose any
sanction derived from the employer-employee relationship.
Having made these
observations the arbitrator continued:
"The exception
to the aforesaid
[i.e.
that the chairperson’s power derived from the
employer-employee relationship
1
]
would be in instances
where the independent or external disciplinary hearing chairperson
has been specifically given such disciplinary
powers upon or during
his appointment, i.e. powers to impose discipline or any
disciplinary sanction rather than a recommendation.
In the present
matter, there is neither an argument nor an explanation that Mr
Sibeko was given specific powers to impose discipline
or sanction,
hence I am of the view that Sibeko can only recommend a sanction and
such recommendations can either be accepted
or rejected by the
respondent."
The arbitrator then
considered the applicants’ argument that the dismissal was
unfair because the collective agreement
had not been followed in
the sense that the chairperson's determination should have been
final and binding in terms of the
disciplinary procedure.
2
The arbitrator
dispensed with this argument,
citing
the well-established principle that a failure to follow an agreed
procedure does not necessarily render a dismissal unfair.
3
The arbitrator also
took into account the principle that,
merely
because a disciplinary procedure deems an internal appeal to be
final and binding, it does not mean if an appeal is unsuccessful,
an employee is precluded from pursuing the matter further using the
statutory dispute resolution procedures of the LRA. It
is a little
unclear why the arbitrator felt it necessary to make this point,
but it appears that he was trying to emphasise
that strict
compliance with disciplinary codes is not necessarily an indicator
of unfairness.
In
this instance, the employee did not make use of the internal appeal
process.
The arbitrator endorsed
the sanction of dismissal imposed by the employer, taking account
of the seriousness of the charges
on which the employee had been
found guilty and of the provisions of the code, which had a bearing
on the evaluation of misconduct
in his view.
Procedural fairness
The applicant had
challenged the procedural unfairness of his dismissal on the basis
that he ought to have been given a hearing
prior to the employer
imposing the sanction of dismissal. The arbitrator dismissed this
claim. He found that before the chairperson
of the internal enquiry
made his recommendation both parties had an ample opportunity to
present mitigating and aggravating
circumstances. Secondly, he
found the applicant had not advanced any authority for the
proposition that he was entitled to
another hearing before the
employer imposed the final sanction of dismissal.
Lastly, the arbitrator
decided that there was nothing procedurally unfair about the
employer imposing its preferred sanction,
because this was not an
alteration of the chairperson's sanction: the chairperson had made
it unequivocally clear that he had
merely made a recommendation and
it was up to the employer whether to accept his recommendation or
not.
Grounds of Review
The applicants attack
both the substantive and procedural findings of the arbitrator.
They claim that the
arbitrator acted unreasonably in reaching his conclusion that the
dismissal was substantively fair because
the collective agreement,
in terms of which the chairperson of the enquiry was acting, not
only conferred the power to impose
a sanction on him but also
obligated him to do so. For this reason, the arbitrator failed to
apply the very exception which
he himself had identified, namely
that the power to impose a sanction flowed from the
employer-employee relationship
unless
specific powers had
been given to the chairperson to impose a sanction.
Expanding on this
ground of review in its heads of argument, the applicants make
reference to the terms of the disciplinary
procedure. The
disciplinary procedure is a collective agreement concluded under
the auspices of the SALGBC. In terms of clause
1.1 of the
agreement, employers and employees falling within the scope of the
Council are obliged to comply with its terms.
Not only is it
binding as a collective agreement, but clause 4.2 of the code
states: “
The code is a product of collective bargaining
and the
application thereof is peremptory
and
is
deemed to be a condition of service
”
(emphasis added).
Clause 6.3 of the
agreement provides that the municipal manager or representative may
establish a disciplinary tribunal to conduct
an enquiry where the
misconduct might result in suspension, termination or dismissal.
Clause 6.4.1 states:
"
The Municipal
Manager or his authorised representative shall constitute a
disciplinary tribunal by appointing a suitably qualified
person to
serve as the presiding officer. In general a person appointed to
serve as the presiding officer should be a senior
employee in the
employee of the employer. However, if this is not possible or
desirable, any other suitably qualified person
may be appointed.
"
clause 7.1 provides
that the hearing should be conducted by the presiding officer and
clause 7.5 provides that the presiding
officer shall have the
power, amongst other things, to:
"
7.5.6
make
a finding of fact
after having considered the evidence;
7.5.7 correct and
hear any plea in mitigation, aggravation or extenuation prior to
deciding on a sanction to impose
; and
7.5.8
impose
,
inter-alia
, any of the following
sanctions
:
7.5.8.1 written
warning;
7.5.8.2 final written
warning;
7.5.8.3 transfer to
another position either with or without financial loss;
7.5.8.4 suspension
without pay for a maximum of ten (10) days as is furthermore
referred to in clause 2.5.3 of annexure "A"
hereto;
7.5.8.5 the
withholding of any salary increment for a period not exceeding 12
months;
7.5.8.6 demotion to
another post with or without financial loss; or
7.5.8.7 dismissal.
”
(emphasis added)
Further, clause 7.6
states:
"
The Presiding
Officer
shall
within ten (10) days of the last
day of the hearing
confirm in writing the findings of
fact, sanction imposed and the reasons in support thereof
and
provide a copy
of the determination
to
the Municipal Manager or his representative and to the employee is
representative.
"
(emphasis added)
Clause 9 of the
procedure deals with further matters relating to the disciplinary
tribunal. Clause 9.1 states that "in
general" the
presiding officer should be a senior employee but if not possible
or desirable any other suitably qualified
person. Clause 9.3
prohibits the presiding officer from consulting, conferring, or
having any casual contact with any of the
parties or their
representatives while handling a matter without the presence of
consent of the other party. Importantly, clause
9.4 reads:
"
The
determination
of the
disciplinary tribunal shall be final and
binding on the employer
save that
the employee
may lodge
an appeal thereto."
Although the applicants
speak of the chairperson's recommendation on the issue of sanction
as ‘a finding’, it is
apparent that he did not believe
he was making a final determination, but a recommendation. He
certainly did not make a determination
in the sense meant by clause
7.6 of the procedure. The employer seized on the chairperson’s
incomplete conclusion and
relied on his subsequent clarification to
assume the power to determine the sanction itself.
I agree with the
applicants that this appears to be precisely the kind of case which
the arbitrator himself identified as one
in which the chairperson
has been given specific powers to impose a sanction in terms of a
disciplinary code that is binding
on the employer and employee
parties. Not only that, but clause 4.2 makes it clear the code was
not intended to be a guideline
but was intended to be binding as
part of the employee’s contract of service and that its
provisions were mandatory.
In failing to apply his own test to the
facts of the matter before him, the arbitrator clearly failed to
act reasonably.
The arbitrator relied
on the broad choice of sanction afforded to the arbitrator to
support his conclusion that this also entailed
the power to make a
recommendation instead. It is true that clause 7.5 of the code
permitted the chairperson a reasonably wide
choice of sanction, but
each one of the measures listed in the section is unequivocally a
sanction that could only be imposed
after a finding of guilt. There
is nothing in the wording of that section to suggest the
chairperson was also given the discretion
to merely recommend a
sanction. Remarkably, the arbitrator then makes the sweeping
assertion that he was not referred to any
authority that the
arbitrator was given any powers to impose discipline or sanction.
This statement is completely at odds with
the applicants’
heads of argument submitted at the arbitration hearing which
pertinently drew his attention to the provisions
of the collective
agreement. This demonstrates a complete disregard on the part of
the arbitrator of those submissions, which
were directly relevant
to the issues before him, and renders his conclusion on the issue
of substantive fairness unreasonable.
The applicants submit
that the arbitrator’s finding of procedural fairness was also
unreasonable because the arbitrator
was
in fact referred to
authority that the applicant was entitled to a hearing before the
sanction was altered, but he ignored it
and failed to give effect
to it. The applicants referred in paragraph 15 of their heads of
argument to the case of
Telkom
SA v CCMA & Others
(2002)
23 ILJ (LC)
,
in which the court confirmed an arbitrator’s finding of
procedural unfairness, in part because the employee was not
given
an opportunity (presumably to make representations) in an in-house
conciliation meeting, which was held after a sanction
had already
been imposed, following which a more serious sanction was imposed.
4
I agree that, in the
circumstances of this matter, Mahlangu should at least have been
given an opportunity to make further representations
to the
employer before it imposed a harsher sanction than the chairperson
was prepared to recommend.
Re-evaluation of
procedural and substantive fairness
A reading of the
provisions of the collective agreement cited above makes it clear,
in my view, that the parties to the agreement
had jointly decided
that disciplinary hearings would be conducted by a specially
appointed tribunal on each occasion and that
tribunal would be
exclusively charged with the task of making findings of fact and
determining a sanction if any. No provision
is made in the
agreement for anyone other than the appointed presiding officer to
determine these issues.
The only role provided
for another level of management to play a part in the final outcome
of any disciplinary proceeding is
in the event that the employee
appeals against a disciplinary sanction given by the chairperson of
the disciplinary enquiry.
This appeal is provided for in clause 14
of the procedure. In relation to the appeal procedure it must be
mentioned that the
code contains specific provisions for the
appointment of a presiding officer to conduct the appeal. It is
also relevant to
note that only an employee may lodge an appeal.
The employer has no recourse in terms of the procedure if it is
unhappy with
the outcome of the disciplinary enquiry.
What happened in this
case is that the chairperson of the enquiry did make a finding on
Mahlangu’s guilt on the charges
but failed to complete his
duties under the code by finalising the sanction. Instead, he
contented himself with only making
a recommendation to the
employer. There is nothing in the agreement to suggest that the
powers given to the chairperson included
the power to delegate or
re-assign his responsibility to decide a sanction to another party.
The employer also did
not invite any representations from the applicants before it
decided to take up the chairperson's invitation
to determine the
sanction itself. As this was clearly a departure from the
agreement, it might reasonably be expected that
it would not have
assumed this power without obtaining the applicant’s consent
for such a material deviation from the
agreement. But it did not.
In deciding to perform the function which was entrusted to the
chairperson, the employer acted in
direct breach of the
disciplinary procedure and exercised a power it was not entitled to
exercise in terms of that procedure.
The fact that an employer is
responsible for and entitled to take disciplinary action does not
mean that it can simply reclaim
powers to determine guilt and
sanction which it has previously relinquished in terms of a binding
agreement that remains applicable
to it The facts of this case are
also distinguishable from the case of
Samson
v Commission for Conciliation, Mediation & Arbitration &
Others
(2010)
31
ILJ
170 (LC)
,
in which there was no collective agreement and there was a well
established practice of reviewing disciplinary sanctions
internally.
5
What the employer ought
to have done was to point out to the chairperson that he was
obliged to make a decision on the sanction
as well in terms of the
code, and to ask him to do so. In any event, the employer was well
aware that the chairperson did not
think that the sanction of
dismissal was appropriate. Instead of giving effect to his plain
wishes, it substituted it with
a more severe sanction, which it was
not entitled to do under the binding provisions of the code.
Under circumstances in
which the employer unilaterally assumed the power to determine the
sanction to be imposed whereas it
was bound by an agreed peremptory
code assigning such power to an appointed chairperson, and where it
did not give effect to
the sanction recommended by the only person
entitled to decide on it, the employer’s dismissal of
Mahlangu was in flagrant
breach of the provisions of the code,
which did not allow it
to determine if a fair reason existed for his dismissal. Its action
had the effect of the sanction being
decided by someone other than
the only person authorised by the code to do so. Had the employer
acted correctly and reaffirmed
the chairperson’s obligation
to finalise the imposition of a sanction, there is no reason to
believe the chairperson
would not have imposed the sanction he had
recommended. Accordingly, there is every reason to believe the
dismissal would not
have occurred, had the employer not acted as it
did. Thus it seems the most appropriate remedy is to give effect to
the chairperson’s
recommendation.
If the employer was
unhappy with the sanction the chairperson would have imposed,
it would not have been
without recourse: it could have applied to review the chairperson’s
decision.
6
The fact that Mahlangu
and his representatives were unaware of the exchange between the
chairperson and the employer until after
the fact, and had no
opportunity to make any representations to the actual decision
maker - albeit one who had usurped the
chairperson’s function
- on the validity of the chairperson’s views on recommending
a sanction, nor to make representations
whether any different
sanction could, or should, be imposed, was procedurally unfair. It
was also a breach of clause 9.3 of
the code. Accordingly, I am
satisfied that the applicant’s dismissal was also
procedurally unfair.
Order
In the light of the
above, the following order is made:
The arbitrator’s
award issued on 11 August 2009 under first respondent’s case
number MPD 110710 is reviewed and
set aside.
The arbitrator’s
findings are substituted with a finding that Mr C Mahlangu’s
dismissal on 2 October 2007 was
procedurally and substantively
unfair.
The third respondent
must reinstate the applicant with retrospective effect, including
backpay, to the date of his dismissal,
within 14 calendar days of
this judgment being handed down.
Mr C Mahlangu is
reinstated subject to:
A disciplinary
finding that he was guilty of two charges of misconduct, namely
that he had acted in an appropriate manner
and had behaved
disruptively on or about 29 May 2007;
A suspended sanction
of dismissal for the above misconduct, which sanction will last
for a period of 12 months from the
date of his return to work;
On being found guilty
of one or more of the same or similar offence during the twelve
month period, he may be dismissed
in terms of the suspended
sanction.
No order is made as to
costs.
R LAGRANGE, J
JUDGE OF THE LABOUR
COURT
Date of hearing: 14
September 2010
Date of judgment: 21
June 2011
Representation
For the applicants: C
Orr instructed by Cheadle, Thompson & Haysom
For the Respondents:
L P Mkize instructed by Twala Attorneys
For the Applicants:
For the First and Second
Respondents:
For the Third
Respondent:
For the Amicus Curiae:
Advocate W Trengove SC
and Advocate N Fourie instructed by the Centre for Applied Legal
Studies / Wits Law Clinic and the Freedom
of Expression Institute
Law Clinic.
Advocate G Marcus SC and
Advocate A Stein instructed by Bowman Gilfillian Attorneys.
Advocate PM Mtshaulana
SC and Advocate K Pillay instructed by the State Attorney.
Advocate R Moultrie and
Advocate MS Baloyi instructed by the Legal Resources Centre.
1
My
annotation.
2
See
the citation of Clause 9.4 of the disciplinary procedure in
paragraph [22] of the judgment.
3
See
Highveld District Council v CCMA &
others
[2002] 12 BLLR 1158
(LAC)
at 1161, par[15].
4
At
539, paras [14] – [15]
5
At
177, par [11]
6
See
Member
of the Executive Council for Finance, Kwazulu-Natal & another v
Dorkin NO & another
(2008) 29
ILJ
1707 (LAC)
.