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[2011] ZALCJHB 144
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Ngwathe Local Municipality v South African Local Government Council and Others (JR 747/10) [2011] ZALCJHB 144 (18 August 2011)
LABOUR
COURT OF SOUTH AFRICA
(HELD
AT BRAAMFONTEIN)
Case: JR 747/10
In the matter between:
NGWATHE LOCAL MUNICIPALITY
....................................................
Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
.................................................................................
First
Respondent
A.
V LEKOTHA (
N.
O.)
..............................................................
Second
Respondent
SAMWU obo S. MOSOEU
.....................................................
Third
Respondent
JUDGMENT
LAGRANGE, J:
Although the third respondent did
file a notice of opposition, no answering affidavit was filed and
neither the third respondent
nor his attorneys attended court when
the matter was set down to be heard.
The applicant municipality seeks to
review and set aside an arbitration award in favour of the third
respondent in terms of which
the arbitrator had found the latter's
dismissal by the applicant was procedurally fair but substantively
unfair and had awarded
his reinstatement. The award was issued on 11
on March 2010.
The third respondent was a
sub-accountant, who had been dismissed together with his supervisor
after being found guilty of breaching
the Code of Conduct for
Municipal Staff Members contained in a Schedule to the Municipal
Systems Act in that they were found
guilty of being parties to
fraud, corruption and bribery, and/or falsification of records as
well as gross negligence. Essentially,
they had been found guilty of
unprocedurally cancelling cash receipts issued to ratepayers paying
for municipal services in cash.
In consequence, there was a
shortfall of cash accounted for in excess of R 2,500-00.
The arbitrator found that the
employer had failed to discharge the onus of proof, citing the
following reasons:
The fact that there was evidence
that some employees had complied with the proper procedure for
cancelling receipts did not
prove that the applicant himself was
made aware of the entire procedure.
Secondly,
there was no conclusive evidence linking the applicant’s
specifically to the cancelled receipts in question. The
arbitrator
reasoned that it was established that the system only allowed one
cashier to sign for all transactions performed by
all the various
cashiers at the end of the day and there was also a practice for
cashiers to share their pin codes among themselves.
The arbitrator
reasoned that it was insufficient for the employer to say that
merely because the applicant was part of a team
responsible for the
transactions that he should shoulder the blame for them.
The applicant attacks the award on
the basis that in reaching his conclusion the Commissioner had
failed to have regard to material
facts which rendered the
arbitration proceedings unfair in principle because it prevented
both parties having their cases fully
and fairly ventilated, thereby
committing a gross irregularity in the conduct of the arbitration
proceedings in terms of section
145(2)(a)(ii) of the LRA. In taking
this approach the applicant relies on the dictum of Ngcobo J in the
Sidumo
case
in which the learned judge held that such an irregularity justified
setting aside an award not because of the result but
because the
irregularity affected the conduct of the arbitration proceedings.
1
In this matter, the applicant argued
that the arbitrator ignored the following relevant evidence: in
evaluating whether or not
the third respondent was aware of the
procedures for cancelling receipts the arbitrator failed to have
regard to the fact that
the evidence showed that he had in fact
received the checklist of controls, and that at least on one
occasion it was shown that
the third respondent had followed the
correct procedure.
Secondly,
it claims that the arbitrator ignored the fact that there was
evidence that he only shared a pin code with one other
person and
that other employees had their own.
I
agree that, on the face of the award, the evidence mentioned does
not appear to have registered with the arbitrator in his evaluation
of those two issues. The evidence mentioned is significant enough in
relation to the conclusions which he drew to at least have
warranted
an explanation of why he discounted it. I am satisfied that the
applicant is justifiably aggrieved that the arbitrator
did not give
it a fair hearing in the light of his silence on this evidence.
Accordingly, the award stands to be set aside on
review not on
grounds of unreasonableness but on grounds of the irregularity in
the process identified by Ngcobo J, above.
Remedy
If the record of the oral evidence
was complete, it would be possible for the court to substitute its
own finding for that of
the arbitrator. Regrettably more than half
the record is merely a reconstruction based on the arbitrator’s
terse notes.
In the circumstances, it would not be fair to either
party for the court to attempt to determine the matter on the record
available,
and the most practical though undeniably less expeditious
solution is to remit the matter back to the first respondent for a
hearing
de novo
.
Order
In the light of the analysis above:
The second respondent's arbitration
award issued on 11 on March 2010 under case number FSD 100715 is
reviewed and set aside.
The matter is remitted back to the
first respondent, which is directed to set the matter down before
another arbitrator other
than the second respondent for a
de
novo
arbitration
hearing.
No order is made as to costs.
_____________________________________
1
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007)
28
ILJ
2405
(CC)
at
2491, para [268]